Chapter 3 - §3. Characterization of hearsay evidence

• Jurisdiction: United States

§3. Characterization of hearsay evidence

To be considered hearsay, evidence must consist of (1) a statement, (2) made by a person (i.e., the "declarant"), (3) outside of court, and (4) offered to prove the truth of the matter stated. See Evid. C. §1200(a).

§3.1. Statement. To be considered hearsay, the offered evidence must be a "statement." A hearsay statement may be either (1) an oral or written verbal expression or (2) nonverbal conduct intended by the declarant as a substitute for oral or written verbal expression. Evid. C. §225.

1. Oral or written verbal expression. The most common type of statement that is considered hearsay is a person's oral or written verbal expression when intended as an assertion of fact, a positive declaration, or a transfer of information. Examples include spoken words, conversations, written notes, letters, e-mails, and other documents. Generally, questions, exclamations, or directives are not considered hearsay statements because they are not assertions of fact. People v. Jurado (2006) 38 Cal.4th 72, 117; People v. Reyes (2d Dist.1976) 62 Cal.App.3d 53, 67; see People v. Humphries (2d Dist.1986) 185 Cal.App.3d 1315, 1335 (words of direction did not express assertion of fact). But in some situations, questions, exclamations, or directives may contain an implied assertion of fact that would be considered hearsay (e.g., a witness testifies that she heard a third party ask the defendant, "Why did you hit John with that pipe?"). See Humphries, 185 Cal.App.3d at 1335 (statement may be hearsay in substance even though it is not hearsay in form). To make this determination, the focus should be on whether the declarant intended to convey the implied assertion; if so, the question, exclamation, or directive should be treated as a hearsay statement. See People v. Garcia (4th Dist.2008) 168 Cal.App.4th 261, 289; cf. People v. Flint (1st Dist.2018) 22 Cal.App.5th 983, 1001 (nonverbal conduct). See "Offered to prove truth of implied assertion," ch. 3-A, §3.4.2.

Case study 1. In a murder trial, the defense's theory was that a third party, not the defendant, assisted in the charged murder. People v. Curl (2009) 46 Cal.4th 339, 361. To support its theory, the defense offered the testimony of an investigator who testified that when he visited the third party in custody and told him that he was accused of being involved in the murder, the third party told the investigator to convey a message to a member of his family to "get rid of" a pair of boots. Id. The court held that the statement from the third party was not hearsay but simply verbal conduct consisting of a directive that was neither inherently true nor false. Id. at 362.

Case study 2. In a murder trial, the prosecution introduced three pieces of cardboard found in an apartment that the defendant frequented, on which cartoons depicted a cat with a moneybag and dollar signs, a sawed-off shotgun, the word "Bopete," the initials "WSF," and the number "211." People v. Lewis (2008) 43 Cal.4th 415, 496, disapproved on other grounds, People v. Black (2014) 58 Cal.4th 912. A detective testified that in his experience, such diagrams were made by gang members to state their preference for certain crimes, and he gave the opinion that the cat, moneybag, dollar signs, and 211 (the Penal Code section for robbery) were references to the crime of robbery and the weapon of choice. Lewis, 43 Cal.4th at 496-97. The court held that the drawings amounted to a written statement and thus were considered hearsay. See id. at 498-99 (statement was erroneously admitted under hearsay exceptions for party admissions and adoptive admissions; there was insufficient evidence that D had drawn or approved cartoons).

Case study 3. In a heroin distribution trial, the witness testified that a stranger gave her airfare from Los Angeles to Birmingham, handed her a small bag, and requested that the witness pack it in her luggage. U.S. v. Jackson (5th Cir.1979) 588 F.2d 1046, 1049 n.4. The court ruled that the stranger's comments were not statements because they were not intended as assertions. Id.

Case study 4. In a murder trial, the witness testified that he heard a codefendant say, "Oh, my gosh, not a 187, please, lady, don't die," to the victim after the codefendant shot her. People v. Clark (2016) 63 Cal.4th 522, 589. The court acknowledged that commands and requests are not generally considered hearsay but found that, while the statement was grammatically in the form of a command, it was still hearsay because it could not be understood as a literal request. Id. at 592. The court held that the statement was instead an expression of the declarant's state of mind. Id.

2. Assertive nonverbal conduct. Another type of statement that is considered hearsay is a person's assertive nonverbal conduct. If a person's nonverbal conduct was intended to be a substitute for a verbal response, the conduct is called "assertive conduct," and it will be considered a statement for the purpose of hearsay analysis when an effort to prove the conduct is made through another's testimony. See People v. Covarrubias (2016) 1 Cal.5th 838, 886; Jurado, 38 Cal.4th at 129; Flint, 22 Cal.App.5th at 1001-02; 1 Witkin, California Evidence (5th ed.), Hearsay §7. Examples of assertive conduct include a nod of the head in response to a question calling for a yes or no answer and a gesture pointing to a particular object or person. See Covarrubias, 1 Cal.5th at 886; Jurado, 38 Cal.4th at 129.

3. Nonassertive nonverbal conduct. A person's nonverbal conduct that is not intended to communicate any assertion is not considered a statement under the hearsay rule. See Evid. C. §225; 7 Cal. Law Revision Comm'n Rep. (1965) p. 1217. Nonassertive nonverbal conduct is not considered hearsay for two reasons. First, one of the main reasons for the hearsay rule—to exclude declarations where the veracity of the declarant cannot be tested by cross-examination—does not apply because such conduct, being nonassertive, does not involve the veracity of the actor. 7 Cal. Law Revision Comm'n Rep. (1965) p. 1217. Second, there is frequently a guarantee of the trustworthiness of the inference to be drawn from nonassertive conduct because actions speak louder than words. Id. at 1217-18. That is, a person's conduct (what he did or did not do at a particular time) may be circumstantial evidence giving rise to some inferences, but if the actor did not intend to communicate anything by that conduct, no "statement" will have been made and testimony about that conduct poses no hearsay problem.

Case study 1. When the defendant was asked by an officer investigating a murder if he had a jacket with a "fur lined collar" (of the type worn by the perpetrator of the crime), the defendant turned to his wife and asked, "I don't have one like that, do I dear?" People v. Clark (5th Dist.1970) 6 Cal.App.3d 658, 668. The defendant's wife promptly fainted, and the court determined that her reaction was nonassertive conduct and therefore not objectionable as hearsay. Id.

Case study 2. After the defendant admitted during a murder investigation that he killed the victim, he verbally expressed concern that he would be killed in prison as a snitch. Jurado, 38 Cal.4th at 128. At that point in the interview, "defendant displayed considerable emotion, sobbing and at one point grasping an interrogating officer's hand." Id. The court held that the defendant's emotional displays, by themselves, were nonassertive conduct and thus not within the hearsay rule. Id. at 129. The court reasoned that nothing suggested that the defendant intended his emotional responses "to convey any particular meaning to the interrogating officers." Id.

Case study 3. In an attempt to prove that a woman's wallet was in her possession at the time she was robbed and murdered, the daughter of the deceased woman testified for the prosecution that her mother had never mentioned anything about a theft or loss of her wallet. People v. Zamudio (2008) 43 Cal.4th 327, 350-51. The court concluded that the mother's silence or failure to say anything on this issue consisted of nonassertive conduct, and the daughter's testimony was not hearsay. Id.

Case study 4. In a sexually-violent-predator commitment trial, an expert testified for the prosecution concerning the defendant's subsequent treatment history, which he derived in part from conversations with state hospital staff where the defendant was committed before the trial. Flint, 22 Cal.App.5th at 996. The defendant contended that failure of the hospital personnel to offer a specific comment about the level of effort he was expending on his treatment constituted a statement under the hearsay rule because it implied an opinion that the defendant was not working in depth on his issues. Id. at 1001. Because the expert was not asked about any specific conversation with hospital personnel and did not describe any specific verbal or nonverbal assertions constituting an out-of-court statement, the expert's testimony was not hearsay. Id. at 1001-02.

Case study 5. A psychiatrist testified that when a child was presented with anatomically correct dolls, she manipulated them in a way that simulated sexual conduct. In re Cheryl H. (2d Dist.1984) 153 Cal.App.3d 1098, 1109-10, disapproved on other grounds, People v. Raley (1992) 2 Cal.4th 870. The psychiatrist also testified that the child "recoiled involuntarily at the mere mention of her father's name." In re Cheryl H., 153 Cal.App.3d at 1128. The court found that the child's conduct with the dolls was circumstantial evidence that the child had been sexually abused and the child's recoiling conduct was circumstantial evidence that the child feared her father. Id. at 1127-28. Both instances were nonassertive conduct; neither was a statement for purposes of the hearsay rule. Id. "A child playing with dolls and posing them in sexual positions is not trying to substitute her conduct for words to the effect that she has...