Thursday, May 5, 2016

Is Hearsay Evidence Admissible in Restraining Order Hearings?

The answer in California is, "sometimes".

To understand how it all works, you have to first understand the legal definition of "hearsay".  Hearsay is any out-of-court statement, when the statement is offered for the truth of the matter asserted (Bill testifies, "Ted told me the red car ran the light", as proof that the red car ran the light).  Hearsay also includes signed affidavits from witnesses who are not present in court to answer questions about their statements.

Hearsay evidence is considered unreliable for obvious reasons.  Generally, it is inadmissible in court unless some exception applies, and there are lots of exceptions.

Civil harassment restraining order cases are one such exception to the general rule that says hearsay is inadmissible.  The law describing civil harassment restraining orders in California specifically says that, at the time of the hearing, "the judge shall consider any testimony which is relevant".  Courts have interpreted this rule as allowing the admission of hearsay evidence in civil harassment restraining order hearings as long as that testimony is relevant (that it generally relates to the facts at issue).

And since the laws regarding workplace violence restraining orders basically mimic the language that governs civil harassment hearings, courts have also determined that hearsay evidence is admissible in workplace violence proceedings.

Domestic violence restraining orders are treated a little differently because they are governed by the Family Code rather than the Code of Civil Procedure.  The language in that code does not include the specific instruction that judges must receive all relevant evidence.  Since no hearsay exception applies in domestic violence restraining order cases, the usual rules of evidence apply and hearsay is excluded.

Even when hearsay is admissible, it is almost always advantageous to bring live witnesses to court rather than signed affidavits.  The judge may have questions and the witness may be needed in case unexpected issues arise.

If you or a loved one has questions about restraining orders in California, call our office for a free attorney consultation.  (714) 449-3335.  Ask for John.  Thanks for reading.