§5.16 Evidence

The parties have the right to offer evidence through witnesses—at the hearing or, with your permission, at another time. [CCP §116.520(a).] A party’s evidence may include receipts, canceled checks, contracts, warranties, photographs, estimates, witness testimony, and letters.

You may consult witnesses informally and otherwise investigate the controversy with or without notice to the parties. [CCP §116.520(c).] Although the statute allows for informality, you should undertake an investigation with caution, and probably only after informing the parties so that they have some basis for understanding the ensuing decision.

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You have wide latitude to obtain evidence from witnesses and may use the written statements of witnesses who are not in court or consult with witnesses by telephone or e-mail. You may exclude evidence that is cumulative, overly time-consuming, confusing, prejudicial, or irrelevant. [EC §§350, 352; Houghtaling v Superior Court (Rossi) (1993) 17 CA4th 1128, 1138.]

The usual rules of evidence do not apply at a small claims hearing because of its informal nature. [See Sanderson v Niemann (1941) 17 C2d 563, 574.] For example, hearsay evidence is admissible; unrepresented parties cannot be expected to know or understand the complicated rules of hearsay. [Houghtaling v Superior Court (Rossi) (1993) 17 CA4th 1128, 1135–1137.] But you still must form your own educated opinion regarding the weight and reliability of such evidence. You should listen patiently, even if you mentally classify the evidence as improbable, incredible, or preposterous. [Houghtaling, supra, 17 CA4th at 1137.]

The rules of privilege [EC §§930 et seq] apply. No party may be compelled to provide, over an objection and a proper claim of privilege, information covered by a statutory privilege, and no party may introduce such evidence absent an appropriate waiver. [Houghtaling v Superior Court (Rossi) (1993) 17 CA4th 1128, 1137–1138.]

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