Silence as Evidence

August 21, 2011

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


Admissions by Silence

August 12, 2011

“Deafening silence” is not an oxymoron.  For better or worse, silence can be a powerful form of communication.  And sometimes it’s not what is said, but what is not said, that finds its way into evidence at trial. 

There are two basic types of silence which are addressed in Texas evidentiary law.  The first involves nonverbal conduct which substitutes for a verbal expression, such as the pointing of a finger or the nod of a head.  This type of silent communication will be discussed in more detail in the next blog in this series.

The second type of nonverbal communication is more subtle.  It is mere silence accompanied by no other conduct which would indicate an intent to communicate.  It is the second type of silence that carries with it the most risk, because the simple act of remaining mute may be admissible as an admission against interest under certain circumstances. 

Generally speaking, Texas law provides that if a statement is made in another’s presence, mere silence on the listener’s part will not constitute an adoption of the truth of the statement.  Failure to speak up in that situation would be no proof as to the truth or falsity of the words actually spoken.  However, when a statement is made in another’s presence which affects that party or his rights and is of such a nature as to call for a reply, then the statement, in connection with a total or partial failure to reply, is admissible as an admission to show a concession of the truth of the facts stated.  Miller v. Dyess, 151 S.W.2d 186 ( Tex. 1941). 

For example, in Dodd v. Harper, a trial court rejected a claim against a decedent’s estate, finding that the contract upon which the claim was based was illegal and unenforceable.  At trial, there was no direct evidence proving the illegal nature of the contract.  Nevertheless, the court of appeals affirmed, holding that when the creditor failed to contradict the administrator’s explanation as to why he would not honor the claim (because the cash loan was to carry a 5-to-1 payoff on an illegal drug transaction), his silence was a concession of the truth of the facts stated.  670 S.W.2d 646, 650 (Tex. App. — Houston [1st Dist.] 1983).  Rather than deny the administrator’s allegations, the creditor only countered that if the decedent were still alive he would have been “a gentleman” and repaid the money.  This partial failure to reply constituted an admission sufficient to support a finding that the creditor and the decedent had been involved in an illegal drug deal.  Id.  

Dodd further highlights the fact that although silence in the face of accusation may give rise to an admission, such admission is not direct evidence, but circumstantial evidence.  As such, the admission is subject to the equal inference rule, i.e., that when circumstantial evidence gives rise to two or more inferences, none more probable than another, neither inference may be reasonably inferred.  Hence, an admission by silence will arise only when no other explanation is equally consistent with silence.  West v. Austin National Bank, 427 S.W.2d 906 (Tex. App. — San Antonio 1968). 

Admissions by silence have also been found in statements made which omit facts later alleged.  Texas General Indemnity Co. v. Scott, 253 S.W.2d 651 ( Tex. 1953).  If the omitted fact was so important that a person would ordinarily have been expected to relate it, the failure to mention the fact in a prior statement is an admission that the event did not occur.  Waldon v. City of Longview, 855 S.W.2d 875 (Tex. App. — Tyle 1993) (finding no error in admitting a prior statement containing no mention of the use of a turn signal after the plaintiff testified at trial as to the use of the signal prior to the collision).

There are some circumstances under which an admission by silence will not occur.  Besides being subject to the equal inference rule discussed above, an admission will not arise:

  • when it is not shown that the party sought to be bound by the admission was present when the statement was made. Eardley v. Eardley, 253 S.W.2d 69 (Tex. App. — San Antonio 1952).
  • when the silent party would not know whether the statement was true or not. West at 909.
  • when the silent party did not fully hear or understand the statement made. Landers v. Overaker, 141 S.W.2d 451 (Tex. App. — Dallas 1940) (85 year-old grandmother didn’t fully hear or understand statements made in her presence).

“Why should I dignify that with a reply?”  It’s a rhetorical question we hear frequently which is usually intended to communicate the idea that the accusation itself is unfairly disparaging or without merit.  But in the legal world, this rhetorical question (especially when it is unspoken) is worthy of serious contemplation, and its answer can have significant practical implications. 

It’s not only the things your clients say that can get them into trouble.  The things left unsaid can cause problems, too.

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


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