The New Hearsay Rule
By: Merrie Turner Lightner First published in the San Francisco Apartment Association Magazine 03/94
The San Francisco Rent Board recently adopted a new rule regarding hearsay evidence and its admissibility. The Rules and Regulations, as previously written, did not allow decisions to be based solely on hearsay evidence. Yet, in practice, decisions were often based entirely on hearsay evidence. A change in the rules became necessary when savvy attorneys (on both the landlord and tenant sides) began to object to the admission of hearsay evidence.
The new rule is found in the Rules & Regulations, Section 11.17. It states “…in the absence of a timely and proper objection, relevant hearsay evidence is admissible for all purposes. Proffered hearsay evidence to which timely and proper objection is made is admissible for all purposes, including as the sole support for a finding, if (a) it would otherwise be admissible under the rules of evidence applicable in a civil action or (b) the hearing officer determines, in his or her discretion, that, based on all the circumstances, it is sufficiently reliable and trustworthy.”
While the new rule provides a lot of flexibility to the parties at a hearing, it also raises a new issue that many of you have never had to deal with at a Rent Board hearing. So, you might ask, what is “hearsay?”
While the definition of hearsay is, on its face, simple, the literature is full of books and articles on this subject. Law students spend weeks learning about it. So, don’t be surprised if, after reading this, you still don’t really understand what hearsay is and isn’t.
From a practical point of view, the purpose of the “hearsay” objection is to exclude from a trial verbal or non-verbal evidence that cannot be tested, then and there, for its accuracy or truthfulness, by cross-examination or other means. Technically, hearsay evidence is defined in the California Evidence Code at Section 1200.
“1200.The hearsay rule.” (a) “Hearsay evidence” is evidence of a statement that was made other than by a witness while testifying at the hearing and that is offered to prove the truth of the matter stated.”
Hearsay evidence can be a verbal restatement of what someone else stated out of court (e.g. “The former landlord told me that….”) or it can be documentary (e.g. a canceled check or BBI Notice of Violation). Not all out of court statements are hearsay, because you don’t always use a statement to “prove the truth of the matter stated.” For example, if you offer the statement “John told me that the earth was flat,” to prove that the earth is in fact flat, the statement is hearsay. However, if you offer the statement to show that John thought the earth was flat, it is not hearsay.
As you might image, the exceptions to the hearsay rule are as important as the rule itself. They are set forth in Division 10, Chapter 2, and Articles 1 through 15, of the Evidence Code. The exceptions are complicated and numerous and there is not sufficient room to detail them here.
My advice: If you plan to use a prior landlord’s business records to petition for a pass-through of Capital Improvements or to set a base for an Operating & Maintenance Petition, consult with someone experienced in the use of hearsay evidence prior to your hearing date.
In addition, when you attend a tenant hearing, consider using the “hearsay” objection if the tenant begins to offer testimony of what someone else said to them and they are trying to prove an important element of their case (e.g. the prior resident manager told me that…) and you feel that you are prejudiced by not having the individual who made the alleged statement there to cross-examine.
This change brings a new level of complexity to proving matters at the Rent Board. While Rent Board hearings will never be quite as simple as they once were, the hearings will be fairer, as all parties will be forced to prove their case with the best evidence available.
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