Presented by John R. Morken, Esq. to the Surrogate’s Association of the State of New York, May 2018.
A great deal of the evidence offered at a trial or hearing in the Surrogate’s Court is hearsay, or at least appears to be hearsay. What did the decedent say? What did his attorney hear from others? Does it matter who the speaker was? What about the attorney’s notes: should they be admitted, and if so, for what purpose? What about diary entries and doctor’s notes? These are but examples. This article is intended to highlight some hearsay basics which come up frequently in Surrogate’s Court trials or hearings.
Definition and Rationale for Excluding Hearsay
The starting point in an evidentiary analysis of admissibility is to identify what is hearsay and what is not hearsay (see generally, Guide to New York Evidence, Article 8). The question then becomes, if it is hearsay, is it excluded, or is there an applicable exception? “[A] statement made out of court … is hearsay if the statement is offered for the truth of the fact asserted in it”.
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John R. Morken is a partner at Farrell Fritz in the firm’s Uniondale office. He can be reached at email@example.com