§ 31.06 STATEMENTS OFFERED FOR THEIR TRUTH

• Jurisdiction: North Carolina

§ 31.06. STATEMENTS OFFERED FOR THEIR TRUTH

Rule 801(c) defines hearsay as a statement offered in evidence to prove the truth of the matter asserted in the statement. If the relevance of an out-of-court statement is the fact that the statement was made, rather than the truth of the assertion contained therein, the statement is not hearsay.²⁸ For example, suppose my son telephones me from Chicago and says, "I am broke; send more money." If offered to show that he was broke, the statement is hearsay — i.e., the statement "I am broke" offered to prove he's broke. In contrast, if the same statement is offered to prove that the telephone system was operating on that day, it is not hearsay. Or, to prove he was alive that day, the statement is not hearsay. Or, to prove he had the ability to speak English — not hearsay. In sum, if the statement is offered for any purpose other than for its truth, it is not hearsay. This means that the hearsay character of a statement cannot be determined until we know what the statement is being offered to prove — i.e., its relevancy.²⁹ In other words, Rule 801 must be read along with Rule 401 (defining relevancy).

Rule 403. In addition to Rule 401, Rule 403 plays an important role here. If the proponent of the evidence comes forward with a nonhearsay (i.e., not for its truth) purpose, the hearsay rule does not bar admissibility.³⁰ A limiting instruction, of course, must be given on request.³¹ This instruction does not, however, guarantee admissibility. It may be that the probative value of the statement for the nonhearsay purpose is substantially outweighed (Rule 403) by the risk of unfair prejudice — i.e., the jury will make the prohibited hearsay inference despite the limiting instruction. Hence, the statement may be excluded pursuant to Rule 403.³²

Examples. Courts and commentators have recognized a number of recurring situations where statements are not offered for their truth content.³³ These are discussed below. Note, however, that this list is not exhaustive.

[A] To Show Effect on Listener — Not Hearsay

In many cases, a person's state of mind — e.g., her knowledge, belief, good faith, reasonableness — is an important issue. A statement offered to show its effect on the state of mind of the person who heard it is not hearsay.³⁴

To prove reasonableness. If an accused claims self-defense, her reasonable fear of the victim becomes an issue under the law of self-defense. Accordingly, statements made to her regarding the victim's dangerous or violent character are relevant to show her subjective state of mind (fear) as well as the reasonableness of this fear. For example, suppose a friend told her that the victim had recently stabbed three people. Here, the statement is not offered to show that the victim actually stabbed three people but rather to show that such information was communicated to the defendant and thus reasonably induced fear. The statement would be relevant for this purpose even if it were untrue. The statement is not hearsay.

To prove notice. Statements offered to show that a person received notice of a fact, condition, or event are not offered for their truth. For example, in Koury v. Follo,³⁵ a patient sued a pediatrician for prescribing an excessive amount of a drug. The label on the bottle of the drug, which stated, "Not for Pediatric Use," was admitted for a nonhearsay purpose — to prove notice.³⁶ (Other evidence showing that the drug was not suitable for children would have to be admitted, probably through expert testimony.) Similarly, in Smedra v. Stanek,³⁷ the court upheld the admissibility of the following statement on the same grounds: "Dr. Stanek had been told by someone in the operating room that the sponge count did not come out right."³⁸

Other examples: (1) A mechanic tells a driver that her tires are worn; if the statement is offered to show only that the driver had notice of this condition (not that the tires were worn), it is not hearsay;³⁹ (2) an owner of a fleet of trucks is told that one of his employees is a very careless driver; if offered to show notice (not that the driver is careless), the statement is also not hearsay.⁴⁰ In short, the statement is relevant because it was made, not because it was true.

To prove good or bad faith. In an income tax evasion case, the defendant offered love letters of the deceased to establish her good faith belief that the things he gave her were gifts, rather than income. The Seventh Circuit ruled that the letters were not hearsay:

These letters were hearsay if offered for the truth of the matters asserted — that Kritzik did in fact love Harris, enjoyed giving her things, wanted to take care of her financial security, and gave her the jewelry at issue as a gift. But the letters were not hearsay for the purpose of showing what Harris believed, because her belief does not depend on the actual truth of the matters asserted in the letters. Even if Kritzik were lying, the letters could have caused Harris to believe in good faith that the things he gave her were intended as gifts.⁴¹

To explain behavior. Sometimes a statement is offered to explain someone's conduct in response to the statement and not for its truth content — for example, to explain why a search warrant was executed or why other police conduct occurred.⁴² Unless there is some need to explain such behavior, however, such evidence is subject to exclusion under Rule 403 if it is unfairly prejudicial — e.g., an officer testified a warrant was obtained because an informant said defendant was a drug dealer.⁴³

[B] Verbal Acts (legally operative words) — Not Hearsay

Statements that constitute verbal acts or legally operative words are not hearsay because they are not offered for the truth. In other words, the uttering of certain words carries independent legal significance under the substantive law — e.g., words forming a contract, slander, threats, and the like. Thus, courts only care that these words were said, not that they are true. In sum, the saying of some words alters legal status by creating rights or liabilities.

Some instances are easily understood. Suppose A tells a third party, "B is a liar." If B sues for defamation, he will need to introduce the defamatory statement uttered by A — i.e., the verbal act. B is obviously not offering the statement for its truth content — that he is in fact a liar. Instead, he wants the jury to believe the opposite.

Other examples are not as easy to understand when first encountered. In a contract case, the statement "I accept your offer" is a verbal act under the objective theory of contract law. The law cares only that it was said, not that it was true. But isn't it also offered for its truth?⁴⁴ Think of it this way: In criminal law, culpability requires an act (actus reus), but some words may satisfy the act requirement. There are verbal crimes — e.g., perjury, solicitation,⁴⁵ fraud,⁴⁶ gambling,⁴⁷ or threatening another person.⁴⁸ Statements constituting these crimes possess independent legal significance as the actus reus; they are crimes if accompanied by the requisite mental state. The same rule applies to the statement "I accept your offer." It has independent legal significance under contract law.⁴⁹ In other words, "[t]he words are not offered for what they say, but for what they do."⁵⁰

[C] Verbal Parts of Acts — Not Hearsay

Verbal parts of acts are closely related to verbal acts. Indeed, they may be understood as a subcategory rather than as a separate category. Such statements are offered in evidence to show only that the statements were made and to explain an otherwise ambiguous act. For example, words of donative intent accompanying the transfer of diamonds ("This is a gift."),⁵¹ or statements made in connection with handing over a bag of money come within this category ("This is a bribe.").⁵² The conduct to be explained should be relevant, equivocal, and contemporaneous with the statements. Most importantly, the conduct must have...