§ 31.03 HEARSAY DEFINITIONS

• Jurisdiction: North Carolina

§ 31.03. HEARSAY DEFINITIONS

[A] Declarant-focused Definition

Given the above analysis, hearsay can be defined as an out-of-court statement whose probative value depends on the credibility of the declarant.¹⁶ Such a "declarant-focused" definition highlights the underlying policy of the hearsay rule. There is, however, a competing definition.

[B] Assertion-focused Definition

A different definition characterizes hearsay as an out-of-court statement offered to prove the truth of the matter asserted. In most cases, the same result is reached under either definition. But not always. For example, what if the declarant says, "Did you bring my gun?" A question is not an assertion, so it cannot be offered for its truth. Correct? Not so fast. Isn't there an "implied assertion" (that the declarant owns a gun) in the question? A declarant-oriented definition would underscore this point and might lead a court to exclude the statement. An assertion-oriented definition might not.

It is this difference in definition that causes many of the more difficult hearsay problems.¹⁷ The "assertion-oriented" definition is used in practice and is embodied in the Federal Rules. Rule 801(a) defines a statement as a person's oral or written assertion or nonverbal conduct of a person, if the person intended it as an assertion.¹⁸ And Rule 801(c) provides that hearsay means a statement that "a party offers in evidence to prove the truth of the matter asserted in the statement."

From the beginning, it is worth noting that a "perfect hearsay definition is unattainable"¹⁹ and a prominent scholar once wrote an article entitled "The Borderland of Hearsay."²⁰ On the other hand, most hearsay issues are readily grasped — at least by the second time through the material.

Metaphors. As noted above, the Federal Rules adopt an assertion-focused definition. Nevertheless, a literalistic interpretation of this definition would lead to absurd results. Under such an approach, metaphorical statements would not qualify as assertions: (1) "It is raining cats and dogs"; or (2) "The sky is on fire."²¹ Did the declarant intend to make an assertion? The person making the "cats and dogs" comment intended to assert that it was raining hard.

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Notes:

^[16] See Park, McCormick on Evidence and the Concept of Hearsay: A Critical Analysis Followed by Suggestions to Law Teachers, 65 Minn. L. Rev. 423, 424 (1981) ("Definitions of hearsay are commonly either assertion-oriented or declarant-oriented. An...