Magazine article Dispute Resolution Journal

Grenig & Scanza on Arbitration * Understanding Evidence (Part Iii)

Magazine article Dispute Resolution Journal

Grenig & Scanza on Arbitration * Understanding Evidence (Part Iii)

Article excerpt


In the final installment of their three-part series on evidence in arbitration, the authors focus on some of the more challenging issues confronting arbitrators when attempting to decide cases. Reliability of evidence including the testimony of lay and expert witnesses, business and medical records as well as the results of polygraph examinations are all discussed.


A. Hearsay

"Hearsay" is a statement, other than one made by the declarant while testifying at the hearing, offered in evidence to prove the truth of the matter asserted.1 A statement is not hearsay if the declarant testifies at the hearing and is subject to cross-examination concerning the statement and the statement is inconsistent with the declarant's testimony and was given under oath subject to the penalty of perjury at a trial, hearing, or other proceeding, or in a deposition, or consistent with the declarant's testimony and is offered to rebut an express or implied charge against the declarant of recent fabrication or improper influence or motive, or one of identification of a person made after perceiving the person.2

In addition, a statement is not hearsay if the statement is offered against a party and any of the following is true:

* It is the party's own statement, in either an individual or a representative capacity.

* It is a statement of which the party has manifested an adoption or belief in its truth.

* It is a statement by a person authorized by the party to make a statement concerning the subject.

* It is a statement by the party's agent or servant concerning a matter within the scope of the agency or employment, made during the existence of the relationship.

* It is a statement by a co-conspirator of a party during the course and in furtherance of the conspiracy.3

The contents of the statement must be considered but are not alone sufficient to establish the declarant's authority, the agency or employment relationship and scope thereof, or the existence of the conspiracy and the participation therein of the declarant and the party against whom the statement is offered.4

The Federal Rules of Evidence contain over thirty exceptions to the hearsay rule.5 Still, in keeping with the general policy favoring consensus, arbitrators seldom preclude hearsay evidence from being introduced.6 Although hearsay is usually admitted, many arbitrators are reluctant to simply accept it without comment.7 Many arbitrators note the objection to the hearsay and warn that, while the evidence is admissible, it is likely to be accorded little weight unless it is corroborated by other testimony or supported by stronger or direct evidence.8

Hearsay documents, including sworn declarations, where there is no witness who may be cross-examined, they may be ruled inadmissible absent special exceptions.9 Many arbitrators, however, will admit "subject to weight" such relatively routine items as doctors' statements concerning an employee's absence because of illness or police reports.10 Records kept in the ordinary course of business will normally be admitted.

When a hearsay statement is admitted in evidence, Fed. R. Evid. 806 provides as follows:

When a hearsay statement, or a statement defined in Rule 801(d)(2)(C), (D), or (E), has been admitted in evidence, the credibility of the declarant may be attacked, and if attacked may be supported, by any evidence which would be admissible for those purposes if declarant had testified as a witness. Evidence of a statement or conduct by the declarant at any time, inconsistent with the declarant's hearsay statement, is not subject to any requirement that the declarant may have been afforded an opportunity to deny or explain. If the party against whom a hearsay statement has been admitted calls the declarant as a witness, the party is entitled to examine the declarant on the statement as if under cross-examination.

B. …

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