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Appraisers testify as valuation experts at trials and hearings subject to the rules of evidence. Part of the foundation for a market value opinion may rest on facts that have not been formally admitted into evidence. An opposing attorney frequently makes a hearsay objection to the in-court recitation of the factual basis for the opinion. This article explores the concept of hearsay, and how the courts have responded to this objection in the context of expert opinion testimony.
BASIC HEARSAY
In its simplest form hearsay is a statement other than one made by the declarant while testifying at trial (i.e., an out-of-court statement made by one who does not testify at trial) repeated in court to prove the very thing asserted in the statement. An example can best illustrate the concept.
A non-expert witness, Ryan, takes the stand at trial and testifies, "Yesterday, I talked to Todd who told me the roof of the red house is leaking." Ryan has never seen or inspected this house. Because Todd's statement was not made in the courtroom in this case, it is an out-of-court statement: one criterion of hearsay. The existence of the second criterion depends on what is being proved. If the statement is being offered to prove that the roof of the red house leaks (i.e., the very thing asserted in the statement), the second criterion is met and it is excludable hearsay. If, however, the statement is being offered to prove that Todd was alive at the time of the conversation, it is not hearsay and may be admitted into evidence.
Why is the result different in the latter scenario? The common law of evidence requires that witnesses testifying to matters of fact must have personal knowledge of those facts and be subject to cross-examination. In the first scenario, the person who is testifying in court does not have personal knowledge of the condition of the roof and is relying on the credibility of Todd (the out-of-court declarant). The common law assumes that Todd's statement will be more trustworthy if he himself testifies in court under oath. Further, the opponent would then have the opportunity to cross-examine Todd regarding his sincerity, the extent of his bias, his ability to narrate, any errors of perception,...