Let’s Talk Hearsay

HEARSAY, GENERALLY

Hearsay is defined as a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.[1] The Texas Rules of Evidence define the term “matter asserted” to include any matter explicitly asserted, as well as any matter implied by a statement, if the probative value of the statement as offered flows from declarant’s belief as to the matter.[2] (Under the Federal Rules of Evidence the term “matter asserted” is not defined, thus limiting the applicability of the hearsay rule in federal courts to those matters actually asserted, not to those merely implied.)

TRE 802 boldly declares hearsay to be inadmissible unless otherwise permitted by rule or statute.[3] Never has there been a better example of the “exception swallowing the rule” than in the notion that hearsay is inadmissible. Not counting hearsay that is admissible pursuant to statutory authority, four separate hurdles in the Rules of Evidence themselves must be cleared before hearsay evidence will actually be inadmissible.  In order to constitute inadmissible hearsay, the statement must: (1) fall within the Rule 801(a-d) definition of hearsay and not within the Rule 801(e) definition of “non-hearsay”; (2) not fall within 24 enumerated exceptions which apply no matter whether the declarant is “available” or “unavailable”; (3) not fall within the three other enumerated exceptions which apply when the declarant is “unavailable”;[4] and (4) meet resistance in the form of a timely, specific objection.  The fourth hurdle is especially significant, because if no objection is lodged, hearsay evidence is both competent and probative.[5]

When it comes to hearsay, it is never too ambitious an undertaking to look for an exception for every objection. Even hearsay-within-hearsay is admissible, as long as each offered portion fits a rule or exception.[6]  The next series of posts will examine the hearsay exceptions, but before tackling the exceptions, it might be a good idea to take another quick look at what hearsay is, and what it isn’t.

STATEMENTS THAT ARE NOT HEARSAY

Wise practitioners follow the King’s advice to the White Rabbit and “begin at the beginning”[7] when considering the admissibility of evidence within the context of hearsay. Rather than skip directly to the exceptions, it is usually best to begin with the more fundamental question – is this evidence really hearsay?

The answer isn’t always as obvious as it seems. For example, an attorney need not fret over whether a lunatic’s outburst “Repent now – the end is near!” meets the excited utterance exception to the hearsay rule if the statement isn’t offered to prove that, in fact, the world is coming to an end. Not offered for the truth of the matter asserted, the apocalyptic warning simply isn’t hearsay to begin with. On the other hand, just because a witness is available and providing testimony in court doesn’t mean that his own prior out-of-court statement isn’t hearsay.  If offered to prove its truth, a prior statement may very well be barred by hearsay notwithstanding the fact that the witness is available in court and subject to thorough cross-examination regarding it.

HEARSAY BASICS

TRE 801 defines hearsay as a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted. The three terms, “statement,” “declarant,” and “matter asserted” are defined in the rule.

The “declarant” is the person who made the statement. The term “matter asserted” includes any matter explicitly asserted, as well as any matter implied by the statement.  “Statement” means: (1) an oral or written verbal expression, or (2) nonverbal conduct, if it is intended as a substitute for verbal expression. Because hearsay statements encompass both verbal and non-verbal assertions, silent gestures such as pointing, nodding, or headshakes may be subject to challenge if these gestures are used as a substitute for a verbal response such as “over there,” “yes,” and “no.”  However, other non-verbal gestures, such as tears, may not be characterized as hearsay if the declarant did not intend the gesture to be an assertion.

In the hearsay context, an out-of-court “statement” will generally fall within one of six categories, as explained below:

1. Explicit Verbal Assertion.  Example: The statement – “A section of the bridge collapsed, and I fell into the icy water as I walked across it” used to prove that the bridge collapsed and the declarant fell into the water.  HEARSAY
2. Implicit Verbal Assertion.  Example: The statement – “Don’t walk on that bridge,” used to prove that the bridge was unsafe. HEARSAY
3. Explicit Non-Verbal Assertion Substituting for Verbal Assertion.  Example: The gesture – a shake of the head in response to the question, “Is the bridge safe?” used to prove that the bridge was unsafe.  HEARSAY
4. Implicit Non-Verbal Assertion Substituting for Verbal Assertion.  Example: The gesture – declarant grabs another person’s arm to impede his progress as his approaches the bridge, used to prove that the bridge ahead was unsafe. HEARSAY
5. Verbal Expression. Example: The question – “Do you have a blanket I could use?” used to prove that the declarant was cold. HEARSAY
6. Non-Verbal Expression.  Example: The gesture – declarant’s teeth were chattering, used to prove that declarant was cold. NOT HEARSAY

As these six examples demonstrate, “statements” can be assertions or merely expressions, explicit or implicit, verbal or non-verbal.  Only in the latter category, the non-verbal expression, does the statement fall outside the definition of hearsay. The nonverbal expression fails to meet the definition of “statement” because the declarant did not intend it to be an assertion.  (According to the rule, only if the declarant intends for his conduct to be an assertion will nonverbal conduct be considered hearsay.)

THE HEARSAY STATEMENTS THAT AREN’T

Sometimes a statement can look like hearsay and sound like hearsay – heck, it can even meet the very definition of hearsay – and still it isn’t hearsay.  To remember which statements fall within this loophole, one must think like a child.  When is hearsay not hearsay?  Either when someone uses magic words, or when your mother says so, that’s why.

Magic Words:  When the mere making of an out-of-court statement – regardless of its truthfulness – has legal significance, then it is magically transformed into a statement of “operative fact” which is not hearsay.  In this situation, even though the statement itself could provide proof of the truth of the matter asserted therein, it is offered for a more essential purpose. For example, when the words themselves constitute a necessary part of the cause of action or defense, such as when the mere making of the statement forms the basis of a fraud claim or constitutes the offer, acceptance or terms of a contract, then the statement itself is an operative fact and, therefore, not hearsay.

Because The Rule Says So, That’s Why:  Then there are those statements which fit squarely within the definition of hearsay, but nevertheless Rule 801(e) simply declares them not to be. Rule 801(e) identifies five categories of non-hearsay statements: (1) prior inconsistent statements, (2) prior consistent statements offered to rebut a charge of recent fabrication, improper influence or motive, (3) prior statements of identification of a person made after perceiving the person, (4) admissions by a party opponent, and (5) depositions taken in the same proceeding.  (Some of these non-hearsay statements have been discussed in prior posts. Follow the link provided for a more in-depth look at these.)

Keep in mind that when responding to a hearsay objection lodged against these non-hearsay statements, it may be tempting to respond that these statements are exceptions to the hearsay rule.  But, technically, that is not correct.  These statements don’t fall within a hearsay exception – they are simply not hearsay to begin with.

– Bonnie Sudderth, Judge of the 352nd District Court of Tarrant County, Texas

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[1] Tex. R. Evid. 801(d).

[2] Tex. R. Evid. 801(c).

[3] Tex. R. Evid. 802; see Tex. R. Evid. 801(e), 803, 804.

[4] See, Miranda v. State, 813 S.W.2d 724, 735 (Tex.App.—San Antonio 1991, pet ref’d).

[5] Unobjected to hearsay statements will not be denied their probative value merely because they are hearsay. Tex. R. Evid. 802.

[6] Tex. R. Evid. 805.

[7] Lewis Carroll, Alice’s Adventures in Wonderland.

Silence as Evidence

Earth Day,  1971.  Keep America Beautiful launches a TV ad featuring scene-after-scene of polluted rivers, trash-strewn highways, mountainous landfills and billowing industrial smokestacks, ending with a close-up of an American Indian with a single tear flowing down his cheek.  Not a word was spoken during that 60-second span, yet anyone who saw it is unlikely to ever forget the message.  In fact, even today that commercial is considered one of the most powerful and successful ad campaigns of all time, demonstrating how silence sometimes speaks louder than words.

There are two basic types of silence which are of concern in evidentiary law.  The last blog focused upon mere silence accompanied by no other conduct which would indicate an intention to communicate.  As discussed, under certain circumstances, this type of silence is admissible as an admission.

The second type of silence is nonverbal conduct which substitutes for a verbal expression.  This often involves facial expressions or gestures, such as the single tear rolling down the cheek, the pointing of a finger or the nod of a head.  These forms of nonverbal communication may also, under certain circumstances, be admissible, but because they are meant to substitute for verbal communication, they are admissible only if the hearsay objection can be overcome.

Texas Rules of Evidence 801(d) defines hearsay as “a statement, other than one made by the declarant while testifying at trial or hearing, offered in evidence to prove the truth of the matter asserted.”  At first blush, this rule would not encompass nonverbal acts.  However, Rule 801(a)(2) defines “statement” to include “nonverbal conduct of a person, if it is intended by the person as a substitute for verbal expression.”  Therefore, when nonverbal conduct is intended to substitute for verbal expression, it will be treated as though the words implied by the nonverbal conduct were actually spoken.  If the conduct or gesture was made out of court and is offered for the truth of the matter inferred by it, then it is subject to the hearsay bar.

Take note, however, that a nonverbal expression is not a substitute for verbal expression unless it was intended to be one.  Both the Texas Rules and the Federal Rules of Evidence provide that nonverbal expressions are considered hearsay only when the nonverbal conduct was “intended as a substitute for verbal expression” or “intended as an assertion,” respectively.  TRE 801, FRE 801.  In fact, this may be the proponent’s best response to a hearsay objection, i.e., that the nonverbal act was not intended as a verbal expression. The burden is on the opponent of the evidence to prove intent, and doubts are generally resolved in favor of admissibility.

There are two other ways for the proponent of the evidence to respond to the hearsay objection.  The first is to argue that the nonverbal statement is not, by definition, hearsay.  The three most common non-hearsay situations are:

1. when it’s not offered for the truth of the matter asserted — TRE (801)(d);
2. when it is a prior inconsistent statement — TRE 801(e)(1); and
3. when it is made by a party-opponent — TRE 801(e)(2).

Even if the nonverbal communication does fit within the definition of hearsay, it still may be admissible as a hearsay exception.  Rule 803 provides a laundry list of exceptions, but those most readily-applicable to nonverbal communication are:

1. present sense impressions — TRE 803(1);
2.  excited utterances — TRE 803(2);
3. statements of existing mental, emotional or physical condition — TRE 803(3);
4.  statements for the purpose of medical treatment — TRE 803(4); and
5. statements against interest — TRE 803(24).

If a nonverbal communication falls within one of these, or any other, hearsay exceptions, then it is admissible into evidence as a hearsay exception.

From the opponent’s viewpoint, assuming the proponent has articulated one of these grounds to support his theory of admissibility, then the evidence may still be subject to a Rule 403 objection (probative value substantially outweighed by prejudice, confusion, etc.).  However, Rule 403 should be the argument of last resort. After all, the proponent’s theory of admissibility should not necessarily be conceded, even if it appears facially meritorious.

Many proffers of otherwise hearsay statements on either of the two above-mentioned grounds — as non-hearsay or as a hearsay exception — simply cannot withstand close scrutiny.  For example, an attorney shouldn’t be so quick to accept a proponent’s argument that the statement is offered, not for its truth, but to show motive, when motive isn’t a relevant issue in the case.  Nor, for example, should it be conceded that a gesture made immediately after a traumatic event would fall within the excited utterance exception, absent any supporting evidence that the nonverbal gesture was a spontaneous reaction which was actually related to the event itself, two required elements to prove up an excited utterance exception.

For those who prefer a step-by-step approach to the process of offering and objecting to nonverbal communication:

1.  The nonverbal act or gesture is offered into evidence.
2. An objection is lodged that the nonverbal communication was intended as a substitute for verbal expression and is, therefore, inadmissible hearsay. (Without a timely hearsay objection, the evidence is admissible with full probative value, pursuant to TRE 802.)
3. The proponent of the evidence argues that the nonverbal statement:  (a) was not made with an intention to substitute for verbal expression; (b) is, by definition, not hearsay; or (c) is admissible under one of the hearsay exceptions.
4. The opponent challenges the proponent’s theory of admissibility, or makes a 403 objection, if applicable.
5. Await the trial court’s ruling on the matter.

(Practice Note:  As for Step 5, be careful to avoid any nonverbal communication on your own  part.  Neither the dramatic rolling of eyes when you lose nor high-fives when you win are tolerated in most courtrooms.)

– Bonnie Sudderth, Judge of the 352nd District Court of Tarrant County, Texas