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One of the persistent challenges for trial attorneys is the admission of evidence to prove their claims or defenses. The admissibility of evidence in workers' compensation proceedings is controlled by the Florida Evidence Code ("FEC"). This statute establishes parameters and requirements for the admission of evidence of various descriptions. Each party to a trial has the opportunity to provide evidence (documents, testimony, etc.) in support of its position, and every other party has the opportunity to object to that evidence. The FEC is the standard by which the trial judge sorts out those proffers and objections and decides what will and will not be admitted as evidence.
The party objecting is not limited to any single objection. One element of evidence in a case might be objectionable for more than one reason. It is therefore not uncommon for a trial judge to be presented with a "compound objection," expressing multiple grounds upon which some evidence should be excluded from the trial. It is also not uncommon for opposing parties to fixate upon one of those multiple grounds, and focus the entirety of its response on that one ground.
This, of course, ignores the other grounds for the objection and potentially leaves the trial judge with a lopsided analysis (three reasons proposed for excluding, and only one grounds explained away by opposing party). A recurrent example of this phenomenon is "objection hearsay, and not authenticated." This is two distinct and separate objections to which the only response will perhaps be regarding hearsay.
It is important for counsel to remember that demonstrating admissibility as regards one section of the evidence code "does not mean that the article is insulated from other rules of evidence governing admissibility." Dollar v. State, 685 So.2d 901 (Fla. 5th DCA 1996). In Dollar, the Court explained that demonstration of authenticity (one requirement) does not lead to admission of evidence that is nonetheless hearsay (a second, distinct, requirement).
The point of the hearsay rule is to afford the opportunity to conduct cross-examination, that is "confrontation" of the statements. That opportunity is a foundational element of the due process guaranteed by the Constitution in American legal proceedings. If someone's statement is to be taken as proving something true, it is most appropriate that statement is made in the trial where the person saying it can be observed first-hand and all of the parties are afforded the opportunity to challenge that statement through cross-examination.
The "rules governing the admissibility of hearsay may cause inconvenience and complication in the presentment of evidence but the essence of the hearsay rule is the requirement that testimonial assertions shall be subjected to the test of cross examination." See, Dollar v. State, 685 So.2d 901 (Fla. 5th DCA 1996).
The point of the hearsay rule is to afford the opportunity to conduct cross-examination, that is "confrontation" of the statements. That opportunity is a foundational element of the due process guaranteed by the Constitution in American legal proceedings. If someone's statement is to be taken as proving something true, it is most appropriate that statement is made in the trial where the person saying it can be observed first-hand and all of the parties are afforded the opportunity to challenge that statement through cross-examination.
The "rules governing the admissibility of hearsay may cause inconvenience and complication in the presentment of evidence but the essence of the hearsay rule is the requirement that testimonial assertions shall be subjected to the test of cross examination." See, Dollar v. State, 685 So.2d 901 (Fla. 5th DCA 1996).
The FEC defines "Hearsay" as a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted. Section 90.801(1)(c), Fla. Stat. Hearsay is not admissible as evidence unless it is within one of the statutory exceptions to the hearsay rule. Section 90.802 Fla. Stat. Some hearsay rule exceptions are dependent upon the propounding party demonstrating that the witness uttering the out-of-court statement is “unavailable.” See, section 90.804 Fla. Stat. Other exceptions to the Hearsay Rule are set forth in section 90.803 Fla. Stat.; the availability of the declarant is immaterial to the application of these exceptions.
It is common for a party proffering evidence, confronted with a hearsay objection, to begin its analysis and explanation with reference to one of these enumerated exceptions. A caution is worthy of reminder. The analysis, might more logically begin with whether the statement is offered "to prove the truth of the matter asserted." Because, if offered for some other purpose, the statement may well not even be hearsay and the exceptions may be irrelevant and unnecessary.
The "compound objection" thus has to be listened to carefully. What are the elements expressed? Each must be addressed as demonstration of admissibility as to any one objection is not necessarily a cure for any other objections. Too often, human nature has us thinking intently about what we are going to say and we are thus inclined to stop listening carefully to what is being said. Attorneys must guard against that inclination and listen carefully to the entire objection, noting each individual element thereof. Each must be addressed in turn.
Another human failing from which we all suffer is hubris, or pride. We are inclined to worry about how we appear or about perceptions others may have of us. There is no certainty that any particular objection will be either legally sufficient or even clear. There is no harm in saying so (though in a jury trial setting, one might wish to do so in the privacy of a sidebar).
The real point is to listen first. Note each grounds for objection, and then address each in turn. The "compound objection" requires in most instances a "compound response." That response, to any hearsay objection, should begin with whether the information is or is not hearsay. Proceeding to some statutory exception before that is established may bring complication to a situation that could instead be cured with simplicity: "it is not hearsay because . . ."
The real point is to listen first. Note each grounds for objection, and then address each in turn. The "compound objection" requires in most instances a "compound response." That response, to any hearsay objection, should begin with whether the information is or is not hearsay. Proceeding to some statutory exception before that is established may bring complication to a situation that could instead be cured with simplicity: "it is not hearsay because . . ."
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About The Author
About The Author
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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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