Hearsay within Hearsay

Hearsay is a legal maxim that challenges even the best trial attorneys from time to time. The general prohibition on, and definition of, hearsay are in Better Understanding the Hearsay Rule from 2016. When attorneys object to hearsay, there is a tendency for the initial response to involve some exception to the evidentiary exclusion of hearsay. The law recognizes that hearsay should be avoided. Sections 90.801 and 90.802, Florida Statutes. But it proceeds to provide many instances in which hearsay is acceptable. Sections 90.803 and 90.804, Florida Statutes. 
The basic premise is that the law requires perceptions or conclusions to be stated within the trial setting (either in the hearing or courtroom itself or under oath in a deposition). The hearsay prohibition is to prevent people repeating in that setting what she or he has heard somewhere outside. For example, if there is to be testimony that a traffic signal was red or green, the law generally prefers that the person who saw the traffic signal testifies about it, rather than someone else testifying that they heard someone who saw it say that it as red or green. Hearsay can be a challenging subject. 
Imagine that the person who saw the traffic signal spoke to police officer afterward. And, the officer then wrote a report, memorializing what was said. The witness' statement about the traffic light color was potentially hearsay (an out of court statement). The report written by the police officer is likewise potentially hearsay. Thus, If the police officer was asked at trial "what did the witness see," there is a potentially valid hearsay objection to prevent the officer from repeating what she/he heard. And, if there is an effort to place the report in evidence, then there is hearsay (the statement) within hearsay (the report). For this complication, the law has a specific rule, section 90.805, Florida Statutes. 
Of course, this analysis depends upon the statement or the report being "hearsay" to begin with. Too often, even the best trial attorneys jump from the hearsay objection to the hearsay exceptions. The first analysis should instead always be: "is this hearsay?" That is, first is it an out of court statement? Second, which is so often overlooked, is it: "offered in evidence to prove the truth of the matter asserted?" If the statement is offered for some other purpose, then it is not hearsay, it is not precluded, and there is no need for the "exception" analysis. Imagine the issue is whether this police office was at the accident scene, that she/he took a statement from a witness might help prove that point. What was said may not be as important as that the officer was there to hear it.
The Florida First District Court of Appeal recently rendered its decision in Hauser v. Goodwill Industries, D19-1054 (Fla. 1st DCA December 20, 2019). The case is a sound reminder of the perils of hearsay. The injured worker in this litigation sought temporary partial disability benefits, which are generally payable when a worker has been released to return to work following an injury, but the worker is not yet at a full capacity either as to work intensity (e.g. limitations on activity, such as walking, lifting, bending, etc.) or duration (e.g. only some limited number of hours per day). A defense to a claim for such benefits is referred to as the "misconduct" defense.
This defense is founded on the allegation that a particular injured worker would be working post-accident, but is not because the employer discharged her/him due to employee misconduct. The defense is essentially that it is the misconduct that results in the loss of earnings, rather than the results of the work injury resulting in that loss. The defense is set forth in section 440.15(4)(e), Florida Statutes. In this particular instance, the worker was accused of misconduct, making "derogatory comments about persons of Mexican heritage to a co-employee that were overheard by a customer." Based upon the allegation of insulting behavior, the injured worker was fired. 
The employer conducted an "exit interview," a process of conversation with employees who leave the employer. Many place great stock in such interviews as a methodology for evaluating employer processes. However, I have known various employees to be less than frank or forthcoming in such situations. The value of these processes is dependent upon the skills of the interviewer as well as the candor and forthcomingness of the departing employee. 
In the workers' compensation hearing regarding the benefits, the Employer/Carrier (E/C) presented the testimony of a regional director. She testified that she spoke with "the complaining customer" by telephone and typed the information provided into a form. There was no audio recording of the call, and the director could no longer recall or locate any contact information for the customer. Apparently, there was no place on the form for either this person's contact information or even the customer's name. The director had not been present for the alleged incident in which the derogatory statements were made. The director admitted that she did not interview the co-worker to whom the statements were allegedly made.
At trial, the injured worker denied making the statements that were recounted by the district director on this form. She objected to the admission of the investigation form, claiming that it was hearsay. The trial judge overruled the hearsay objection, concluding that the exit interview form was a business record, and therefore admissible under section 90.803(6)(a); There was also reference to this being an "admission" (90.803(18)) but the Court found that exception inapplicable because the injured worker denied making the derogatory statements. 
The District Court reminded that whether or not to admit evidence is a decision within the discretion of the trial judge. In that regard, the decisions are reviewed by the Court using an "abuse of discretion" standard. The Court reminded, however, that "whether a statement is hearsay is a matter of law." As such, the Court considers that question anew on appeal, what the courts refer to as "de novo review on appeal.” That standard is used on legal questions because the appellate court is as well situated, if not better (the appellate courts consider such questions with more time and with three judges; trial judges must make such calls during the hearing, and often with little or no explanation by the parties), than the trial judge in considering questions of law. 
The Court explained that if the injured worker admitted to the statements, then the admission of the district director's form would not be problematic. However, the worker "adamantly denied making the derogatory comments." The Court also explained that the interview form might itself be admissible as a business record, subject to the "exception to the hearsay rule found in section 90.803(6)(a), Florida Statutes." This document is a business record, and the Court noted it "appears to satisfy this exception."
Thus, in a general sense, the form itself would be admissible over objection. However, the Court reminded, that does not mean that everything in the form is itself admissible. The Court concluded that "the portion of the form setting forth the alleged misconduct" is hearsay. As such, that information about misconduct is “hearsay within hearsay." The Court explained that "hearsay within hearsay is not excluded under s. 90.802, provided each part of the combined statements conforms with an exception to the hearsay rule as provided in s. 90.803 or s. 90.804.” 
Thus, what was generated by the district manager herself, and placed on the form is admissible in evidence to prove the truth of the matter. For example, to prove that the form was completed on a particular date, the director's notation on it of a particular date would be admissible. However, the recitation of hearsay (what someone else told the director) remains hearsay even if it is restated into a form that is a business record. As a side note, if that were not the case almost any hearsay would be admissible; anyone wanting to admit hearsay would merely have it typed into a business record of some form for that purpose. 
The Court noted precedent excluding statements integrated into various business records, including police reports. It reminded that "if the person who prepared the record could not testify in court concerning the recorded information, the information does not become admissible as evidence merely because it has been recorded in the regular course of business.” The Court did not foreclose the potential that other hearsay exceptions might apply in such a situation. 

However, in this instance, the"E/C has not alleged any other hearsay exception that would apply" to those alleged statements. That is merely a reminder that it is up to the parties in a case to raise their issues and make their argument. It is not up to the adjudication process to examine each and every potential argument and then make that argument for the party affected. 

The Court thus reversed the denial of temporary indemnity, which had been based upon that form memorializing the alleged derogatory comments. The effect will be the injured worker having a new trial on the claims for benefits. The benefit for the workers' compensation community is an apt and informative reminder of the perils of hearsay statements, the challenges of arguing evidence admission, and the hearsay within hearsay complication that may affect many written records. 


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    About The Author

    • Judge David Langham

      David Langham is the Deputy Chief Judge of Compensation Claims for the Florida Office of Judges of Compensation Claims at the Division of Administrative Hearings. He has been involved in workers’ compensation for over 25 years as an attorney, an adjudicator, and administrator. He has delivered hundreds of professional lectures, published numerous articles on workers’ compensation in a variety of publications, and is a frequent blogger on Florida Workers’ Compensation Adjudication. David is a founding director of the National Association of Workers’ Compensation Judiciary and the Professional Mediation Institute, and is involved in the Southern Association of Workers’ Compensation Administrators (SAWCA) and the International Association of Industrial Accident Boards and Commissions (IAIABC). He is a vocal advocate of leveraging technology and modernizing the dispute resolution processes of workers’ compensation.

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