Hearsay!

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University of Richmond *

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Feb 20, 2024

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Hearsay! What Qualifies as a Statement? Under the Federal Rules, a statement is an assertion—oral, written, or nonverbal—by which the declarant intends to communicate, Fed. R. Evid. 801(a). People make statements when they talk and write, but they can also make statements nonverbally, such as when they nod or make a rude gesture to a fellow driver. Although there is some debate , animals and machines do not make statements for hearsay purposes . Under the Federal Rules of Evidence, nonverbal conduct is hearsay if it was intended as an assertion and is being offered to prove the truth of the matter asserted. When Is a Statement Hearsay? A statement is hearsay if it is made outside of court and is being offered to show the truth of the matter asserted in the statement, Fed. R. Evid. 801(c). For evidence to be considered hearsay, it must: (1) be a statement, (2) have been made out-of-court, and (3) be used by the party offering the statement to show that the matter asserted by the statement is actually true. EXAMPLES In response to a question about who saw the accident, Darlene raises her hand. The hand-raising gesture is assertive conduct, and, if offered by a witness to show that Darlene saw the accident, would be hearsay. To prove that it was raining, the proponent offers into evidence the fact that the witness saw pedestrians walking outside with open umbrellas. Because the pedestrians did not intend to make a statement by opening the umbrellas, the evidence is not hearsay.
Who Is the Declarant? The declarant is the person making the statement. Sometimes the declarant and the witness are the same person (and the witness is just repeating their own out-of-court statement). More often, the declarant is not the same person as the witness and the witness repeats the out-of-court statement of the declarant. The declarant may not be in court at all, may testify in court, or may be in court but otherwise unavailable because of an asserted privilege or refusal to testify. What Does “Out-of-Court” Mean? By “out-of-court,” the hearsay rule means outside of the very court proceeding in which the evidence is being offered. A statement in a different court is still considered an “out-of-court” statement. A deposition taken in the case is an out-of-court statement. Testimony from another case or even the same case on retrial is also considered an out-of-court statement. When Is a Statement Being Used for the Truth of the Matter Asserted? A statement is being used for the truth of the matter asserted when the finder-of-fact (judge or jury) is being asked to believe that the statement itself is actually true. Focus on the statement itself , not on the broader theory of the case or on the larger principle that the piece of evidence would help prove. EXAMPLE Wanda heard an out-of-court statement from the Declarant, Donald, who said, “Abigail robbed the bank.” If Wanda testifies and repeats Donald’s out-of-court statement to prove its truth—that is to say, that Abigail did indeed rob the bank—then the statement is hearsay. Wanda has no personal knowledge of what Abigail has done ; all she knows is what Donald told her. oppThe proponent of the evidence is asking the finder-of-fact to believe that the statement is actually true, and therefore Wanda’s testimony is hearsay. What Are the Reasons for the Hearsay Rule? Traditionally, hearsay has been excluded because it is considered inferior evidence, often lacking assurances of reliability, such as: An in-court oath; The ability of the fact-finder to observe the witness’s demeanour; The possible prosecution of the declarant for perjury; The opportunity for cross-examination, which can illuminate problems in the witness’s testimony that cannot be addressed adequately if the information is second-hand.
Although not identical, the purposes of hearsay and the Confrontation Clause of the Sixth Amendment are closely connected. The opportunity to confront and cross-examine the witness presents the best protection against faulty memory and coerced or manufactured testimony. Also , the use of hearsay against an accused could lead to abuse whereby a party manufactures evidence or pressures a declarant who is not available to be questioned in court. CONFRONTATION CLAUSE ONLY APPLIES TO CRIMINAL CASES the lack of confrontation regarding hearsay evidence is only implicated in a criminal case because the Sixth Amendment to the United States Constitution guarantees criminal defendants, but not civil litigants, the right to confront the witnesses against them.  See Pointer v. Texas ,  380 U.S. 400 (1965). Here, because the man is suing the company for negligence, the Confrontation Clause would not apply. Out-of-Court Statements That Do Not Fit the Hearsay Definition Not all out-of-court statements qualify as hearsay because not all out-of-court statements are being offered for their truth. The number of ways an out-of-court statement can be used for something other than its truth is infinite. The common law developed classic categories that assist in identifying statements that look like hearsay but do not fit the definition. These categories of out-of-court statements that are not being used for the truth of the matter asserted are still useful today. A mnemonic for remembering these categories is V-I-C-E: V erbal Acts, I mpeachment, C ircumstantial Evidence of the State of Mind of the Declarant, E ffect on the Listener. Verbal acts are actions with words. They fall into two categories: (1)   The words themselves do not matter, just the fact of speech. For instance, a mother knocks on a teenager’s door at 3:00 p.m. on a Saturday afternoon and asks, “Are you alive?” The surly answer, “No, I’m dead,” conveys just as much information regarding the vitality of the child as the more polite, “Yes, thanks, Mom. I’m OK. I’m just doing my Advanced Placement U.S. History homework.” The fact of speech, not its content, conveys that the teenager is alive. (2)  Legally operative language whereby the words themselves have legal consequences . In essence, the speaker is acting with words, creating a legal right, duty, or status. This second category includes verbal parts of acts, or speech that is necessary to explain the legal consequences of the action.
Example – verbal acts In an action for defamation, Peter introduces Don’s statement that “Peter is a slimeball and a plagiarist” to prove that Don defamed him. The statement is not hearsay, but rather a verbal act . The only way to defame someone is with words. The act of defamation is performed by Don’s statement. This example does not qualify as hearsay under hearsay’s classic definition : when Peter introduces Don’s defamatory statement, Peter is not asking the finder-of-fact to believe that the statement is true (in fact, Peter strenuously argues that it is false). Peter just wants to prove that Don made the statement. Sometimes legally operative language looks a lot like hearsay. You could be forgiven for finding this confusing. In deciding whether a statement is a verbal act, ask yourself whether the words are necessary to effect a change in legal status. For instance, stating the response “I do,” in a legal marriage ceremony transforms a single person to a spouse. The statement “I got married yesterday” has no similar effect on legal status. Similarly, “Here is the rent money for August” is a verbal part of an act (without the verbiage it would be unclear what the purpose of the check was) and is not hearsay if introduced to prove payment. “Yesterday, I paid my rent for August” is an out-of-court statement describing a past event, not creating a legal status via a verbal act. This latter statement is not part of a legal event; it is hearsay to prove the payment of the rent. Be on the lookout for statements that have independent legal significance. Some examples include: “I accept your offer.” (Language of contract formation) “Sold to the gentlemen in the third row.” (Auction) “Please accept this $100 as my gift.” (Clarifying that the transfer of money is not a loan, bribe, or repayment) “If you do not steal the exam key, I will kill your cat.” (Extortion) “Hand over your wallet.” (Theft) “Sure, you can borrow the car.” (Entrustment) “Please join our merry band of bank robbers. You could drive the getaway car.” (Formation of a conspiracy) Impeachment Sometimes an out-of-court statement is offered not for its truth but merely to impeach a witness on the stand with her own prior statement. The out-of-court statement is not being offered to show that the out-of-court statement was true, but just to show that it was made and that the witness has been inconsistent and arguably unreliable.
EXAMPLE A witness may testify that the light was green. This is clearly not hearsay because it is an in- court statement. At the scene of the accident , however, that same witness stated that the light was red . The party impeaching the witness cannot use the out-of-court statement to prove that the light was red (even though one might suppose it more reliable because of its proximity in time to the accident). The statement can be introduced for another purpose , however: to show the uncertainty, capriciousness, and perhaps even mendacity of the witness. Green? Red? Which is it? T he impeachment shows that the witness is unreliable . Although the finder-of-fact cannot use the prior out-of-court statement made at the scene of the accident as proof that the light was red (that would be an impermissible hearsay use of the statement), the finder-of-fact can use the statement to discredit the witness’s in-court assertion that the light was green. Circumstantial Evidence of State of Mind of the Declarant Within this category are utterances (a spoken word, statement, or vocal sound.) that are not hearsay because they can be used to show the declarant’s state of mind circumstantially, without the finder-of- fact needing to accept the declarant’s assertion in the statement as true. EXAMPLE utterances that aren’t hearsay In class, your evidence professor—who is not Lady Gaga, though she is wearing a suit made of meat —announces: “My name is Lady Gaga.” At your professor’s commitment hearing, the Dean , who wishes to have your evidence professor committed to a mental institution, offers the statement to demonstrate mental incompetence . The Dean may testify about the statement because although it was out-of-court, it is not being offered for its truth, and therefore it is not hearsay. When offering the evidence to prove incompetence, the Dean is not asking the finder-of-fact to believe the statement is actually true —that your evidence professor is Lady Gaga— just that your evidence professor said it. Observe that the “truth of the matter asserted ” is judged by analysing the statement itself. Is the finder-of-fact being asked to believe that your evidence professor is Lady Gaga? If so , that is a hearsay use.
If not , the evidence is being offered for another purpose: to demonstrate circumstantial (or indirect) evidence of state of mind. Where evidence isn’t offered to prove the truth of the matter asserted about a statement but rather to demonstrate state of mind or circumstantial evidence then it’s not hearsay The finder-of-fact is being asked in this case to infer that your professor is crazy. That is not, however, the truth of the matter asserted by the Declarant in making the statement (even though that is what the statement implies, and the statement supports the theory of the case). Had your professor simply announced, “I’m having mental health issues,” then her statement used to prove that she is mentally incapacitated would be a hearsay use . One mistake students sometimes make with hearsay is to think too broadly about the nature of the matter asserted. Sloppy thinking can lead to the following mistaken analysis: “The Professor’s statement is being used to assert the Professor’s incompetence, therefore it is hearsay to prove incompetence.” The mistake arises because the student thought about the theory of the case and decided that because the out-of-court statement supports the Dean’s argument, it must be hearsay. The mistake arises from the failure to focus on the statement itself. The student is confusing relevance (and of course the statement has to relate to the theory of the case) with hearsay. To make the hearsay determination, focus on what the statement actually asserts . Next, determine whether the finder-of-fact is being asked to believe that that assertion is actually true. Example:  Effect on the Listener If a statement is not offered for the truth of what it asserts, but to show its effect upon the hearer or reader of the statement, then it is not hearsay. In other words, the out-of-court statement is being offered not to prove that the assertion is actually true but to demonstrate the effect on the person who heard it, such as displaying the listener’s knowledge or elucidating the listener’s intent. Be careful: you must be able to articulate a theory of relevance concerning why anyone would care about the effect on the listener. EXAMPLE – effect on the listener In a lawsuit where a Plaintiff sues a homeowner after tripping on some allegedly rotted boards, the Plaintiff wishes to provide evidence that a neighbour had said to the homeowner a week before the accident: “The floorboards on your front porch have rotted.” This out-of-court statement would be hearsay to prove that the floor was actually rotted. It is not hearsay to show that the homeowner, upon hearing this statement, was put on notice of the condition of the boards. Such notice is an example of effect on the listener , a non-hearsay use of the statement.
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