To Prove, or not to Prove: Circumstantial Evidence of Identity as an Exception the Hearsay Rule

SHCP on Hearsay

As most people know, “hearsay” is an out-of-court statement offered to prove the truth of its content. The hearsay objection is invoked by a party to keep testimony or documents of an opposing party out of evidence. In the 2018 case of Hart v. Keenan Properties, Inc., the court clarified an exception to the hearsay rule.

Hart sued Keenan alleging he contracted mesothelioma as a result of installing Keenan’s pipes (which contained asbestos) while working for his employer. But in their responses to discovery, neither Keenan nor Hart’s employer could produce records or invoices for the sale of Keenan’s pipes to the employer.

At trial, Hart’s supervisor testified he recalled seeing Keenan’s name and logo on the invoices for the pipes at issue. Keenan objected to the supervisor’s testimony arguing any reference to “Keenan” on the invoices constituted inadmissible hearsay. The trial court denied the objection, ruling the reference was circumstantial evidence of identity.

On appeal, the appellate court reversed, holding the testimony was hearsay. However, the California Supreme Court ultimately held the testimony referencing the documents is not hearsay because 1) the reference to invoices was not made to prove the contents of the invoices, but as circumstantial evidence of the sale of pipes based on a recollection of the invoices identifying Keenan purchased the pipes, and 2) the evidence was relevant because it had a tendency in reason to prove or disprove a disputed fact.

The Supreme Court also held oral testimony describing an absent writing is admissible where a copy of the writing cannot be produced, and the original writing was not fraudulently destroyed by the proponent of the evidence. In view of the Supreme Court’s findings, parties should not only perform discovery to determine exactly whether documents exist (and any reasons they don’t exist), but also determine what exactly witnesses recall about documents that are no longer available.

As a practical matter, where documents proving identity are not available, lay the foundation for the hearsay exception.