Chapter 8 801 Definitions

• Library: Evidence Guide 2003

§801 Definitions

§802 Hearsay rule

§803 Hearsay exceptions: availability of declarant

immaterial

§804 Hearsay exceptions: declarant unavailable

§805 Hearsay within hearsay

§806 Attacking and supporting credibility of nontestifying declarant

§801 Definitions

The following definitions apply in this chapter:

(a) Statement

A “statement” is (1) an oral or written assertion or (2) non-verbal conduct of a person if it was intended by the person as an assertion.

(b) Declarant

A declarant is a person who makes a statement.

(c) Hearsay

Hearsay is a statement other than one made by the declarant while testifying at the trial or hearing that is offered in evidence to prove the truth of the matter asserted.

Notes

Subdivision (a)—Statement

The rule regarding exclusion of hearsay-form proof applies to both written and oral assertions. Locke Distrib. Co. v. Hartford Accident & Indem. Co., 407 S.W.2d 658, 670 (Mo. App. E.D. 1966).

Conduct has been held to be a statement for purposes of the hearsay rule when the declarant intends the conduct to be an assertion. See State v. Cottrill, 855 S.W.2d 379 (Mo. App. W.D. 1993). But see State v. Abram, 632 S.W.2d 60, 62–63 (Mo. App. E.D. 1982) (startled reaction of victim upon viewing lineup held not to be a statement since she did not intend an assertion; therefore, officer’s testimony relating victim’s reaction not excluded by the hearsay rule).

Subdivision (b)—Hearsay

A characteristic of hearsay evidence is that its reliability depends on the veracity and competency of an out-of-court declarant. “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. . . .” Mash v. Mo. Pac. R.R., 341 S.W.2d 822, 827 (Mo. 1960) (quoting John H. Wigmore, Wigmore on Evidence § 1766 (3d ed. 1940)); see also In re Thomasson’s Estate, 148 S.W.2d 757, 763 (Mo. 1941). The principal reason for classifying evidence as hearsay is that a party has a right “to test by cross-examination the veracity and accuracy of the person making the statement. . . .” Pettus v. Casey, 358 S.W.2d 41, 44 (Mo. 1962). For evidence to be properly classified as hearsay, the veracity of the statement must be derived from some source not open to cross-examination. In re Formation of Cmty. Care Nursing Home Dist. v. Petitioners for Formation of Cmty. Care Nursing Home Dist., 564 S.W.2d 552, 556 (Mo. App. W.D. 1978).

A second characteristic of hearsay evidence is that the statement is offered to prove the truth of the matter asserted in the statement. “Testimony of a witness regarding the statement of another is hearsay and inadmissible only when the statement is offered as proof of the matters therein stated.” Still v. Travelers Indem. Co., 374 S.W.2d 95, 102 (Mo. 1964); see also Rodriguez v. Suzuki Motor Corp., 996 S.W.2d 47, 59–60 (Mo. banc 1999); State v. Morrow, 968 S.W.2d 100, 116 (Mo. banc 1998); State v. Chambers, 891 S.W.2d 93, 102–03 (Mo. banc 1994). But see State v. Parker, 886 S.W.2d 908, 921–22 (Mo. banc 1994) (approved denial of mistrial of homicide case over witness’s testimony where she added, “I was told it was Jahn Parker [defendant],” though the court had issued pretrial order directing the state not to elicit that hearsay evidence where the trial court did admonish the jury to disregard the statement).

A statement made by a person other than the witness would not be hearsay if offered merely to show that the statement was made from which a permissible inference may be made. Illustrative of instances of proper proof of the fact the statement was made are:

1. To show a reason for subsequent conduct. v. Chambers, 891 S.W.2d at 103–04; State v. Barnett, 980 S.W.2d 297, 306 (Mo. banc 1998). But see State v. Moore, 882 S.W.2d 253, 263–64 (Mo. App. E.D. 1994) (preclusion of defense cross-examination of state witness as to alleged statement of defendant to the witness, inquiring whether he had told her the police had checked him for presence of blood on his shoes held proper though defense asserted it was offered only to show fact statement was made as suggesting source of her testimony that his shoes were bloody; court deemed questioning to have been intended to constitute evidence of absence of blood on shoes and as rebuttal of guilt). See also State v. Kirkland, 471 S.W.2d 191, 194–95 (Mo. 1971)
2. To prove the basis of a belief. In re Estate of Glover, 854 S.W.2d 850, 852–53 (Mo. App. E.D. 1993); Replogle v. Replogle, 350 S.W.2d 735, 737–38 (Mo. 1961)
3. To show bias. Massman v. Muehlebach, 95 S.W.2d 808, 815 (Mo. App. W.D. 1936)
4. To show notice and knowledge. State ex rel. 807, Inc. v. Saitz, 425 S.W.2d 96, 99 (Mo. 1968)
5. To prove the mental state of the declarant. State v. Basile, 942 S.W.2d 342, 356–57 (Mo. banc 1997); State v. Mucie, 448 S.W.2d 879, 887–88 (Mo. 1970).

Hearsay by inference

In criminal prosecutions, it has been held improper to establish the happening of certain circumstances and then show that the defendant was arrested; this is deemed to wrongfully inject an inference that the proven circumstances indicated complicity of the defendant. State v. Valentine, 587 S.W.2d 859, 859–64 (Mo. banc 1979). But see State v. Richardson, 923 S.W.2d 301, 312–13 (Mo. banc 1996) (in murder case, held not prejudicial error for officer to testify to having interrogated two accomplices, to their arrest following the interrogation, and to defendant’s arrest on the following day where defendant was “connected” to the crime by other “strong” evidence); State v. Lee, 841 S.W.2d 648, 652–53 (Mo. banc 1992).

“Verbal acts” excluded

Missouri courts also have excluded “verbal acts” from application of the hearsay rule. In State v. McClure, 504 S.W.2d 664, 671 (Mo. App. E.D. 1974), the court stated, “It has become a well settled principle of the law of evidence that statements or declarations made contemporaneously with or immediately preparatory to a particular litigated act which tend to explain, illustrate or show the object or motive for the act” are admissible.

Furthermore, the verbal acts rule “permits the use of extra judicial statements only when such statements are not offered as evidence of the fact stated but are offered ‘irrespective of the truth of any assertion they may contain.’” State v. Schuh, 497 S.W.2d 136, 138 (Mo. 1973) (citing 6 John H. Wigmore, Wigmore on Evidence § 1772, p. 191 (3d ed. 1940)); see also Stephen v. Lindell Hosp., 681 S.W.2d 503 (Mo. App. E.D. 1984); State v. Copeland, 928 S.W.2d 828, 848–49 (Mo. banc 1996).

“The hearsay rule does not apply to ‘[u]tterances accompanying an ambiguous or equivocal act, itself material, and serving to complete the act and give it definite legal significance; i.e. verbal parts of the act.’” Menorah Med. Ctr. v. Davis, 463 S.W.2d 618, 621 (Mo. App. W.D. 1971) (quoting John H. Wigmore, Wigmore on Evidence § 1766, p. 180 (3d ed. 1940)); see also Baker & Theodore, Inc. v. Quinn, 400 S.W.2d 477, 480 (Mo. App. E.D. 1966).

§802 Hearsay Rule

Hearsay is not admissible except as noted in this chapter or as provided by law.

Notes

This rule constitutes the basic rule for exclusion of hearsay—proof in the form of hearsay that is not excluded from the definition of hearsay under §801(c).

Examples of statutory exceptions are:

• the admissibility of depositions, § 492.400, RSMo 2000;
• a declaration of a child sex abuse victim, §803(28), infra;
• a notarized affidavit of the buyer or purchasing department of a retail business as to the value of property where its value is an issue when offered at a preliminary hearing on a criminal charge, § 490.717.6, RSMo 2000; and
• records of the Department of Revenue and Department of Health, when properly certified, “shall be admissible as evidence in all courts of this state and in all administrative proceedings,” § 302.312, RSMo2000. See Mills v. Director of Revenue, 964 S.W.2d 873 (Mo. App. E.D. 1998), noting that the legislature intended to obviate Hadlock v. Director of Revenue, 860 S.W.2d 335 (Mo. banc 1993), construed as ruling the predecessor statute to satisfy only the “best evidence” requirements and as not satisfying rules of hearsay and foundation.

See also §§901(b)(10) and 902, infra, for many other statutes containing language variously phrased to constitute rules of hearsay, identification or authentication, best evidence, and relevancy. See also Rodriguez v. Suzuki Motor Corp., 996 S.W.2d 47, 55–59 (Mo. banc 1999).

§803 Hearsay Exceptions: Availability of Declarant Immaterial

The following are not excluded by the hearsay rule even when the declarant is available as a witness:

(1) Present sense impression—contemporaneous statement

A statement describing or explaining an event or condition made while the declarant was perceiving the event or condition or immediately thereafter.

(2) Excited utterance—spontaneous declaration

A statement of fact relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition.

(3) Then existing mental, emotional, or physical condition

A statement of the declarant’s then existing state of mind, emotion, sensation, or physical condition—such as intent, plan, motive, design, mental feeling, pain, and bodily health— but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the execution, revocation, identification, or terms of declarant’s will.

(4) Statement for purposes of medical diagnosis or treatment

A statement made for the purposes of securing health care and describing medical history; past or present symptoms, pain, or sensations; or the inception or general character of the cause or external source of the symptoms, pain, or sensations insofar as reasonably pertinent to diagnosis or treatment.

(5) Recorded recollection

A memorandum or record concerning a matter about which a witness once had...