Statements Which Are Not Hearsay

May 5, 2013

While it is generally true that if an animal looks like a duck and quacks like a duck, it’s a duck, when it comes to hearsay statements, this isn’t necessarily so.  A statement can look like hearsay, sound like hearsay and still not be hearsay at all.  Several general types of statements fall squarely within the definition of hearsay provided in Texas Rules of Evidence 801, but simply aren’t.  Why not?  Because subsection (e) of TRE 801 says so.

As mentioned in the prior post, these five categories of non-hearsay which have been carved out and enumerated in TRE 801(e) are:  (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.  These statements described in TRE 801(e) are not hearsay exceptions, but rather statements which are not considered hearsay to begin with.  When responding to a hearsay objection lodged against these types of statements, the proper response is not that the statement falls within an exception to hearsay.  The appropriate response is that these statements are not, by rule, hearsay at all.

Impeachment by Prior Inconsistent Statements:

Any witness may be impeached by showing that on a prior occasion he made a material statement inconsistent with his trial testimony.  Such a statement can be taken from many sources – from formal, sworn statements made in prior testimony, affidavits or discovery responses, to casual remarks made by a witness to a bartender at the local pub.  With regard to the latter, because it is unsworn, this statement can only be used to attack the credibility of the witness, and may not be received as evidence to prove the truth of the matter asserted by the witness on the prior occasion.  (In such situations, the attorney resisting the admission of the prior statement should request that the court give a limiting instruction to the jury that the statement can be considered for impeachment purposes only.)

However, if the prior inconsistent statement meets the requisites of sworn testimony under TRE 801(e)(1)(A-D), then it is admissible as non-hearsay both to impeach credibility and to prove the truth of the matter asserted.  In order to rise to the level of substantive, probative evidence, the witness’s prior statement must be: (1) inconsistent with the witness’s current testimony during a trial or hearing, and (2) given under oath, subject to the penalty of perjury, at a trial, hearing, deposition or other proceeding (see TRE 613(c)).  In addition, the witness must testify at trial or hearing and be subject to cross-examination concerning the prior inconsistent statement.  Assuming these conditions have been met, the actual substance of a witness’s prior inconsistent statement is admissible as non-hearsay to prove the truth of the matter previously asserted.

Prior Consistent Statement to Rebut:

Bolstering a witness by attempting to elicit prior consistent statements is generally not permitted.  However, while a witness’s prior consistent statements would normally be inadmissible hearsay, TRE 801(e)(1)(B) categorizes certain prior consistent statements as non-hearsay.  Under this rule, the admissibility of prior consistent statements is restricted to use in rebutting an express or implied charge of either recent fabrication or improper influence or motive.  Absent such an allegation, either express or implied, a prior consistent statement remains inadmissible under TRE 613(c).

If admissible, then the prior consistent statement may be used to both rebut the charge levied and to prove the truth of the matter asserted in the prior staement.  However, the statement must have been made before the charged recent fabrication, improper influence or motive arose in order to fall within the ambit of TRE 801(3)(1)(B).

Statement of Identification:

A prior statement of identification of a person made after perceiving the person is also defined as non-hearsay.  While this rule is obviously used mostly in criminal cases, the rule is applicable in civil cases as well, so it’s a good rule to remember, especially for situations where a tortfeasor’s identity is at issue.

(Applicable only to criminal cases, a statement made by a child under the age of 13 is also defined in TRE 801(e) as non-hearsay, if the statement comples with Texas Code of Criminal Procedure 38.071.)

Admissions by Party-Opponent:

Admissions by party-opponent are included in TRE 801(e) as statments which are considered non-hearsay.  This type of admission is defined as a statement which is offered against a party and is (A) the party’ own statement in either an individual or representatiave capacity; (B) a statement of which the party has manifested an adoption or belief in its truth; (C) a statement by a person authorized by the aprty to make a statement concerning the subject; (D) a statement by the party’s agent or servant concerning a matter within the scope of the agency or employment, made during the existence of the relationship; or (E) a statement by a co-conspirator of a party during the course and in furtherance of the conspiracy.  The rule is broad in application and basically boils down to this – any relevant statement of fact made by a party (or his authorized agent, acting within the scope of the existing agency) is admissible against that party.

  • Pleadings and Other Statements Made by Attorneys:  Included within this rule are not only statements appearing in discovery responses and pleadings from the present case, but also statements appearing in other proceedings as well.  Given the nature of the relationship between attorney and client, it is understandable why courts have little trouble finding that the allegations and statements made by the party’s attorney in motions and pleadings constitute authorized admissions under this rule.  The Texas Supreme Court has construed the rule to apply even to pleadings which have been superceded and not inconsistent with the party’s position at trial.  Stepping beyond written motions and pleadings, federal courts have applied the federal rule (which mirrors the Texas rule) to statements made by attorneys during advocacy in opening statements and closing arguments.  Even pleadings of a party in other causes of action which contain statements inconsistent with that same party’s present position are receivable and admissible as admissions.  Finally, one Texas appellate court has extended these general rules even further, proclaiming that even pleadings which have not been verified and “bear no file mark” may constitute admissions under this rule.
  • Statements from Interpreters:  If a party makes an interpreter his agent to communicate – whether by authorizing the interpreter to translate a statement for him concerning a specific subject, or by designating the interpreter as his agent for purposes of translating a specific statement – the fact that the original statement, as received in English, came through a translator will not turn an otherwise admissible out-of-court admission into objectionable hearsay.  To determine whether a party has adopted an interpreter as his agent, four factors are considered: (1) who supplied the interpreter; (2) whether the interpreter had any motive to mislead or distort; (3) the interpreter’s qualifications and language skills; and (4) whether actions taken subsequent to the translated statement were consistent with the statement as translated.  After taking these factors into account, if the proponent can demonstrate to the satisfaction of the trial court that the party authorized the interpreter to speak for him on a particular occasion or otherwise adopted the interpreter as his agent for purposes of translation, then the out-of-court translation may be properly admitted under TRE 801(e)(2)(C) and (D).  If the court, acting within its discretion, is not so satisfied, then the court should not admit it over a hearsay objection.
  • Admissions in the Context of Social Media:  Admissions by a party-opponent can often be found in social media postings.  If relevant to the issues in the case, statements in the form of texts, tweets, emails, wall posts and blogs are textbook, albeit new-fangled, examples of admissions by a party-opponent.  Some statements may lend themselves to particular hearsay exceptions.  For example, tweets are often present-sense impressions, “OMG” may signal that a text includes an excited utterance, and what is an emoticon if not a statement of then-existing emotional condition?  Each of these fit squarely within the traditional rules regarding hearsay exceptions.  But no hearsay exception need be urged if the witness posting the social media message is a party to the litigation.  Because admissions are not hearsay to begin with, a hearsay objection, standing alone, cannot work to keep these statements away from the jury’s ears (although these statements may be subject to objection on other grounds).

Depositions:

In a civil case, a statement is not considered hearsay simply because it is contained in a deposition.  TRE 801(e)(3) provides that as long as the deposition is one which was taken in the same proceeding, the statement may be admitted into evidence whether or not the witness is available to testify at trial.  This contrasts with federal practice, which requires a showing of witness unavailability before deposition testimony may be used in lieu of live testimony.

  • “Same Proceeding”:  Beware, the Texas Rules of Civil Procedure define the term “same proceeding” to include a proceeding in a different court that involves the same subject matter and the same parties, or their representatives, or successors in interest.  Also, under TRCP 203.6, a deposition is admissible against a party, even if that party was not joined in the lawsuit until after the deposition was taken, if (1) the deposition is admissible under the former testimony exception, or (2) if the party was given a reasonable opportunity to re-depose the witness but failed to do so.
  • Hearsay Within Non-Hearsay:  While the deponent’s testimony is considered non-hearsay, this rule extends only to testimony provided by the deponent which has been made on personal knowledge.  To the extent that a deponent offers testimony regarding statements made by others, these other statements would be subject to a hearsay objection.  This is similar to the concept of hearsay-within-hearsay (except that it is, technically speaking, hearsay-within-non-hearsay).  Hearsay-within-hearsay is a hearsay statement which is contained within another hearsay statement.  When this occurs, both layers of hearsay must independently satisfy an exception to the hearsay rule in order to be admissible into evidence.  A court would commit error if it allowed hearsay statements made by a deponent into evidence simply because the deponent repeated the hearsay statement during the course of a deposition.  Even if non-hearsay, the deposition testimony may be objectionable on other grounds.  TRCP 199.5(e) provides only three objections which can be raised during a deposition: (1) Objection – Leading, (2) Objection – Form, and (3) Objection – Nonresponsive, but don’t forget that any other objections to a deponent’s testimony – relevance, reliability, hearsay-within-hearsay – may be raised afterwards before the trial judge.
  • Non-hearsay vs. Hearsay Exception:  TRE 801(e)(3) defines a witness’s deposition testimony in the same proceeding as non-hearsay.  On the other hand, if taken in a different proceeding, a witness’s deposition testimony is hearsay.  Nevertheless, this deposition testimony may still be admitted into evidence, under the exception provided by TRE 804(b)(1), an exception which will be discussed later.  For now, however, suffice it to say that in order for deposition testimony taken in a different proceeding to be admissible, the deponent must be unavailable for trial.

In the next post, we will begin to take up the twenty-four hearsay exceptions found in TRE 803.

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

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