§801 Definitions

• Library: Evidence Restated Deskbook (2021 Ed.)

§801 Definitions

The following definitions apply in regard to hearsay:

A. Statement. "Statement" means a person's oral assertion, written assertion, or nonverbal conduct, if the person intended it as an assertion.

B. Declarant. "Declarant" means the person who made the statement.

C. Hearsay. "Hearsay" means a statement that: (1) the declarant does not make while testifying at the current trial or hearing; and (2) a party offers in evidence to prove the truth of the matter asserted in the statement.

D. Statements that are not hearsay. A statement that meets the following conditions is not hearsay:

1. A declarant-witness's prior statement. The declarant testifies and is subject to cross-examination about a prior statement, and the statement:

a. is inconsistent with the declarant's testimony; or

b. identifies a person as someone the declarant perceived earlier.

2. Admission by party opponent. The statement is offered against an opposing party and:

a. was made by the party;

b. is one the party manifested that it adopted or believed to be true;

c. was made by an agent or employee of a party while acting within the scope of the agent's or employee's authority in making the statement; or

d. was made by the party's co-conspirator during and in furtherance of the conspiracy.

Notes

A. Statement

Similar to Federal Rule of Evidence 801, Missouri cases "define" a hearsay statement as requiring an assertion. An assertion may be oral or written or nonverbal conduct intended as an assertion.

· Oral or written. Locke Distrib. Co. v. Hartford Accident & Indem. Co., 407 S.W.2d 658, 670 (Mo. App. E.D. 1966).

- Not intended as an assertion:

o State v. Tate, 817 S.W.2d 578, 579 (Mo. App. E.D. 1991) (on the issue of whether or not the victim shot himself, a statement, "Don't kill me," made by the victim three times while in an ambulance was not hearsay because it "was not made as an assertion of fact by the victim. It was an utterance made by the victim while not fully conscious and in great physical distress. The statement was a spontaneous reaction of the victim.")

o State v. Joiner, 823 S.W.2d 50, 55 (Mo. App. E.D. 1991) (the statement made by the victim, "What's up Gay?" was a greeting to a passerby and not an assertion)

· Nonverbal conduct:

- Not intended as an assertion:

· State v. Workes, 689 S.W.2d 782, 785–86 (Mo. App. E.D. 1985) (testimony of a police officer that the victim backed away as she pointed to the defendant at a lineup was not hearsay—while "the victim's recoil at seeing defendant . . . could be perceived as indicating fear or revulsion and therefore was probative on the consent issue[,] the act of the victim in backing away was not intended as an assertion of fact. It was rather a spontaneous reaction and its description by the police officer was not hearsay.")

· State v. Meyer, 694 S.W.2d 853, 856 (Mo. App. E.D. 1985) (testimony of a police officer of the victim's reaction at a lineup—that she was upset and nervous and started shaking and jumped back as she identified the defendant—was not hearsay because her nonverbal conduct was not intended to communicate any fact sought to be proved)

- Intended as an assertion:

o State v. Baldwin, 399 S.W.2d 22 (Mo. 1966) (an officer's testimony that he stated to the defendant's brother that he wanted the rifle that his brother had left with him and that the brother, in response, produced a rifle and turned it over to the officer constituted hearsay evidence of the fact that the brother had left the rifle with him—it "constituted an unsworn out-of-court declaration by [the brother] of the truth of the fact that [his brother] left the rifle with [him]")

B. Declarant

The hearsay rule does not apply to testimony regarding the "declarations" of a nonperson, such as an instrument or device; it only applies to the out-of-court declarations of a person. See City of Webster Groves v. Quick, 323 S.W.2d 386, 390 (Mo. App. E.D. 1959) (no error in permitting a police officer to testify as to the readings of an electric timer showing the defendant's speed because the evidence is not dependent on the perception, memory, and sincerity of an absent declarant).

Testimony of an interpreter regarding what a victim said is hearsay and is inadmissible if offered for the truth of what the victim said, absent an exception to the hearsay rule, because the interpreter would be testifying to the out-of-court statements of the declarant-victim. State v. Martinez, 407 S.W.3d 669, 671–72 (Mo. App. S.D. 2013).

C. Hearsay

Similar to Federal Rule of Evidence 801, Missouri cases define hearsay as an out-of-court statement that the party offers in evidence to prove the truth of the matter asserted in the statement. See:

· State v. Reed, 282 S.W.3d 835, 837 (Mo. banc 2009)

· State v. Johnson, 284 S.W.3d 561, 584 (Mo. banc 2009)

· State v. Perdue, 317 S.W.3d 645, 653 (Mo. App. S.D. 2010)

· State v. Steele, 314 S.W.3d 845, 850 (Mo. App. W.D. 2010)

· State v. Bynum, 299 S.W.3d 52, 60 (Mo. App. E.D. 2009)

· Still v. Travelers Indem. Co., 374 S.W.2d 95, 102 (Mo. 1964)

The definition reflects the concern that the reliability of hearsay depends on the veracity and competency of an out-of-court declarant, Federal Nat'l Mortg. Ass'n v. Bostwick, 414 S.W.3d 521, 527 (Mo. App. W.D. 2013) ("Hearsay evidence is objectionable because the person who makes the statement offered is not under oath and is not subject to cross-examination.") (quoting St. Louis Univ. v. Geary, 321 S.W.3d 282, 291 (Mo. banc 2009)); Mash v. Mo. Pac. R.R. Co., 341 S.W.2d 822, 827 (Mo. 1960) ("The theory of the Hearsay rule . . . is that, when a human utterance is offered as evidence of the truth of the fact asserted in it, the credit of the assertor becomes the basis of our inference. . . .") (quoting John H. Wigmore, Wigmore on Evidence § 1766 (3^rd ed. 1940)); see also In re Thomasson's Estate, 148 S.W.2d 757, 763 (Mo. 1941), and the belief that statements not subject to cross-examination, not offered under oath, and not subject to the fact-finder's ability to judge demeanor at the time the statement is made do not provide the assurance of veracity and competency expected, Bueneman v. Zykan, 52 S.W.3d 49, 56 (Mo. App. E.D. 2001).

Thus, the principal reason for classifying evidence as hearsay is to be sure that a party has a right "to test by cross-examination the veracity and accuracy of the person making the statement." Pettus v. Casey, 58 S.W.2d 41, 44 (Mo. 1962); In re Formation of Cmty. Care Nursing Home Dist., 564 S.W.2d 552, 556 (Mo. App. W.D. 1978); see also State ex rel. Fischer v. Sanders, 80 S.W.3d 1, 3–4 (Mo. App. W.D. 2002).

Appellate review of trial court's determination

Appellate review of a trial court's legal determination that a statement is or is not hearsay is de novo; the trial court's ruling is given no deference. State v. Taylor, 298 S.W.3d 482, 492 (Mo. banc 2009).

When a statement is outside the definition

A statement is not hearsay if the out-of-court statement is not offered for the truth of the matter asserted in it. Accordingly:

[e]vidence is hearsay only if its evidentiary value depends on drawing an inference from the truth of the statement. If the relevance of the statement lies in the mere fact that it was made, no reliance is placed on the truth of the statement or the credibility of the out-of-court declarant, and the statement is not hearsay.

State v. Sutherland, 939 S.W.2d 373, 377 (Mo. banc 1997) (quotations and citations omitted).

Examples of statements that are not hearsay

Statements are not hearsay if they are:

1. Made by the declarant while testifying and based on the declarant's firsthand knowledge rather than relating what someone else asserted

· Election result. State ex rel. Bd. of Health Ctr. Trs. of Clay Cty. v. Cty. Comm'n of Clay Cty., 896 S.W.2d 627, 629–30 (Mo. banc 1995) (oral testimony of a witness directly involved in an election that authorized a mill levy for the creation of a county health center as to the result of the election was not hearsay because he testified from his firsthand knowledge)

· Construction cost. Greene Cty. v. Hermel, Inc., 511 S.W.2d 762, 768 (Mo. 1972) (oral testimony of the construction cost for improvements to a mall given by the mall owner's vice president, who was in charge of construction, was not hearsay because he had personal knowledge of the amounts that had been paid); see also Buder v. Martin, 657 S.W.2d 667, 671 (Mo. App. E.D. 1983) (no error in admitting bills and cancelled checks issued for the payment of repairs—they were simply documentary illustrations of testimony regarding the expenditures that the defendant knew were made for repairs)

· Certified and permittee. Elliot v. Dir. of Revenue, State, 882 S.W.2d 745, 747 (Mo. App. E.D. 1994) (a police officer's testimony that he was certified as a peace officer and had a permit to use a breathalyzer was not hearsay because it was a matter within his personal knowledge—"It would come as a considerable surprise to most lawyers to learn that persons holding licenses from the state, including attorneys themselves, cannot testify to that fact.")

· Company policy. Sabbath v. Marcella Cab Co., 536 S.W.2d 939, 942 (Mo. App. E.D. 1976) (no error in admitting a cab driver's testimony of a defendant's policy of performing maintenance on its cabs every two weeks, including an oil change and lubrication of parts, because the company's policy was personally known by the driver)

· Personal observation of events as recorded. State v. Powers, 148 S.W.3d 830, 832 (Mo. App. E.D. 2004) (the testimony of a store's loss prevention officer as to what he observed in person and on the store's security monitor was not hearsay because the officer's testimony was based on his personal observations, made either in person or in "real time," as they occurred in the store by means of the security monitor)

2. Not offered to prove the truth of...