When a mental health professional testifies about information shared with them by their client.
Hearsay evidence Hearsay evidence refers to testimony presented in court based on what another person said and offered to prove the truth of what was asserted. Courts generally prohibit hearsay evidence due to concerns about reliability (Barsky, 2024). If I testify, “Ms. X told me that Ms. Y stole her car,” the judge or jury has no way to verify the truth of this statement without Ms. X’s testimony. I could testify about what Ms. X said, but wouldn’t it be better if Ms. X testified herself? If Ms. X testified herself, Ms. Y’s lawyer could cross-examine her, asking questions to verify her story, testing her memory and honesty, and helping the court determine the accuracy of her evidence. Different types of courts have different levels of strictness regarding the prohibition of hearsay evidence. For example, criminal courts tend to be very strict, while family courts tend to be less strict.
Exceptions to the hearsay rule
Although courts have a general rule prohibiting hearsay evidence, there are many exceptions to the hearsay rule (Federal Rules of Evidence, 2023). For example, in a criminal case, a witness may testify about the defendant’s confession of guilt: “Mr. Y told me he stole a car.” Other exceptions to the hearsay rule include public records, business records, witness testimony in a previous trial, and statements made by a person who believes he or she is about to die. Courts allow such testimony because it was made under circumstances that are likely to be credible. Additional exceptions may exist based on similar reasons, so consult with an attorney if you are unsure whether you can provide certain types of information.
Why Mental Health Professionals Rely on Hearsay
Mental Health Professionals (MHPs) often rely on hearsay when clients relate their concerns, experiences, hopes, and dreams. This information, although sometimes unverified, is critical in developing assessments and treatment plans. When clients tell us they have experienced abuse, discrimination, love, or hallucinations, MHPs may rely on these stories even though they have no direct evidence that these stories are true. Unlike the courts, MHPs have no prohibition against hearsay and often use it to understand and support their clients.
When MHP gives evidence in court
When an MHP testifies about a client, the strongest evidence may be direct observation evidence, such as observation of the client’s behavior, interactions with others, or specific indicators of mental health, mental illness, or other conditions related to the issue at issue. Although direct information may be the strongest evidence, MHPs are permitted to rely on hearsay evidence when providing expert opinions (Federal Rules of Evidence, 2023). Indeed, when presenting expert evidence, it is important for MHPs to provide the basis for their opinions. During cross-examination, MHPs may be questioned about their information gathering process and reliance on hearsay information. Thus, MHPs should be prepared to explain their information gathering process, how they followed an evidence-based protocol to assess their client, and whether they gathered information from multiple sources to confirm their findings. If they used evidence-based measures to assess their client, they may also explain whether they used validity scales, structured interviews, behavioral observations, or other methods to evaluate the veracity of the client’s answers.
Conclusion
When giving evidence in court, MHPs should present the best available evidence to support the truth of their statements. If their sources are not completely reliable, it is appropriate to be honest with the court that these sources are not perfect. It is also appropriate to inform the court what professional and clinical standards were followed and how confident the MHP is in the information they have provided. When presenting expert evidence, MHPs can rely on hearsay evidence. However, they should also consider whether they can strengthen their evidence by explaining what protocols were followed and why they believe their opinions are substantiated within reasonable professional confidence.
References
Barsky, A. E. (2024). Clinicians in the Courtroom: A guide to subpoenas, depositions, testimony, and everything you need to knowGuilford Press.
Federal Rules of Evidence (2023). Rule 7 – Opinions and Expert Testimony, Rule 8 – Hearsay Evidence. https://www.law.cornell.edu/rules/fre (For state court cases, see state rules of evidence)
