Oct
11

Hearsay and a Father's Tale

“That’s just hearsay.”

You hear that remark all the time. It conveys a sense of unreliability. The statement, so dismissed, just doesn’t count. You can’t bet on it.

Yet hearsay is everywhere, and we cannot live without it.

The definition of hearsay sounds convoluted, but it is really quite simple: Hearsay is an out-of-court statement offered to prove the truth of the matter asserted. What does that mean? Simply put, admitting into evidence in a court proceeding a statement uttered at some other time for some other purpose.

It’s all right to be confused. If the law were simple, we lawyers would be out of work.

Consider the following: A man comes into a courtroom and asserts: “Mr. Smith told me there is green cheese on Mars.” You just can’t use this statement to prove that there is, in fact, cheese on Mars. The statement was made out of court. It cannot be used to prove the truth of the matter asserted, that is, that there is cheese on Mars. (It might, however, tell us a lot about Mr. Smith’s state of mind, but that’s a separate matter.)

What if Mr. Smith came into a courtroom to tell us about cheese on Mars? In that case, the statement might well be admitted into evidence, but we would accord it little weight. Hearsay statements are not admissible as evidence in a courtroom; statements admitted as evidence can either be believed or disbelieved by a jury or judge. It is a matter of admissibility as evidence versus the weight we accord to the evidence admitted.

But there are exceptions to the general rule against admitting hearsay statements into evidence. Lots of exceptions. One of them pertains to public records, such as birth or death certificates. We say that such documents are reliable because they are kept by officials who have a duty to make accurate and reliable records. Indeed, we cannot live without hearsay. All history is really a search for reliable evidence. After all, who among us can testify that the American Revolution actually occurred? Who really doubts that it did?

But just because something is reliable doesn’t always mean that it is right.

I am sitting here looking at a death certificate for my father, who died in 2007. It reports he died in Norfolk, Virginia, a fact I accept as true because his wife told me she was with him when he died. But what of the date of birth? According to the death certificate, he was born in Greece on October 27, 1929, making him 77 at the time of his death.

I could accept that at face value, but doing so would be to call my father a liar.

A couple of years before he died, he told me his life story. I had not seen him for more than 40 years. He told me he and his father snuck into the United States during the 1930s, crossing the border into Detroit from Windsor, Ontario. Both started their voyage in Sfakia, Crete.

If what my father told me is true, he was a 20th century Oliver Twist. For years, he lived by his wits, rarely attending school, but learning to speak English without a trace of a Greek accent. By the mid-1950s, he had found his calling: He lived as an armed robber. According to him, he had a “crew.” The men lived in an apartment building in downtown Detroit. “You needed a warrant to get beyond the third floor,” he said. If lawmen got too close, his crew would retreat to “safe houses.”

Three or four times a year, they would do a “job.” That meant they would rob a payroll truck of its cash. It was a good life, he said.

In 1954, a job went bad. My father shot a man. The “heat” was on. My father told me the FBI was looking for him, so he decided to flee Detroit. In an age before computers, it was simple to establish a new identity. He ran to Chicago with the young woman he was seeing. They set up housekeeping, and, soon enough, became my parents. In a roundabout way, I suppose I am required to be grateful my father shot the unnamed man; I owe my life to that act of violence.

None of this is on his death certificate, of course. But his date of birth is precisely 10 years off. He told me he lied about his age always. When he was dating my mother, who was in her late teens, he did not want to admit to being an older man in his thirties. So he shaved a decade off the clock. Just like that. He declared himself to be 10 years younger, and it was so. That conceit found its way into his death certificate.

So what am I to believe, the reliable public record, or the words of my father, a liar?

I hardly know, and most days it does not matter.

But as I get older, I keep hoping what my father told me was true. Genetics may not be destiny, but they are a guide of sorts into the unknown. I’d prefer to believe my father died into his late eighties, than in his late seventies. That might forecast more time for me among the living.

Or it might not. My father’s death certificate is admissible in court, but what weight to accord it? That’s a separate matter. As with most evidence, I suspect I will see in it what suits me.

Reprinted courtesy of the Journal Register Co.

Related topics: Journal Register Columns
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About Norm Pattis

Norm Pattis is a Connecticut based trial lawyer focused on high stakes criminal cases and civil right violations. He is a veteran of more than 100 jury trials, many resulting in acquittals for people charged with serious crimes, multi-million dollar civil rights and discrimination verdicts, and scores of cases favorably settled.

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I believe that the state is a necessary fiction and that failing to combat it is the first step toward tyranny.
– Norm Pattis

Disclaimer:

Nothing in this blog should be considered legal advice about your case. You need a lawyer who understands the context of your life and situation. What are offered here are merely suggested lines of inquiry you may explore with your lawyer.

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