Hearsay

• Author: Gordon P. Cleary
• Pages: 349-506

6-1

HEARSAY

Hearsay

§600 In General

§610 Assertive Versus Non-Assertive Conduct

§620 Hearsay Versus Non-Hearsay Purpose

§621 Prior Statement by Witness

§622 Former Testimony

§623 Judicial Findings of Fact

§624 Confrontation Clause Issues

§624.1 Crawford Holdings

§624.2 What Are Testimonial Statements?

§624.3 911 Calls

§624.4 Autopsies

§624.5 Laboratory Reports

§624.6 Police Involvement in Psychological and Medical Care

§624.7 Taped Telephone Calls

§624.8 The Dying Declaration Exception

§624.9 Forfeiture By Wrongdoing: Giles v. California

§624.10 Statements Not Offered for the Truth

§624.11 Proceedings in Which Crawford Does Not Apply

§624.12 Preserving Crawford Challenges to Evidence

§624.13 The Basic Crawford Analysis

§600 HEARSAY 6-2

InGeneral

The reason behind the hearsay doctrine is a

concern about the reliability of certain evidence: In

particular, a concern about the reliability of in-court

testimony about out-of-court statements whenever

the proponent of that testimony attempts to use

those statements as evidence in the case. Under the

common law, hearsay was not allowed because the

court reasoned a declarant should be subject to

cross-examination at trial. Unless the declarant tes-

tifies under oath and is subject to cross-examina-

tion, any out-of-court statement made by the declar-

ant is unreliable.

Under the federal rules, and under most modern

state rules, hearsay has a relatively narrow applica-

tion. A statement is hearsay only if:

• it is made by an out-of-court declarant;

• it is intended to be a statement (assertive

conduct or oral/written assertion);

• it is offered into evidence to prove its truth.

The following sections will discuss the modern

hearsay rule and its exceptions.

AssertiveVersus

NonAssertiveConduct

Federal Rules of Evidence 801(a) and (b)

define the terms “statement” and “declarant.” Rule

801 provides in pertinent part:

(a) “Statement” means a person’s oral assertion, writ-

ten assertion, or nonverbal conduct, if the person

intended it as an assertion.

(b) “Declarant” means the person who made the

statement.

Under the Rules, a statement is only hearsay if

it is intended to be an assertion. That is, it must be:

• a purposely oral assertion;

• a purposely written assertion; or

• purposeful conduct intended as an assertion.

Furthermore, the “statement” must be made by

a “declarant”:

• a natural person;

• who makes the statement.

Elements

The following are the foundational elements to

determine whether a statement is hearsay (assertive

conduct) or non-hearsay (non-assertive conduct).

Assertive Conduct

• The witness testifies that the declarant at a

particular time and place made a statement

which was intended to be:

— a purposely spoken assertion; or

— a purposely written assertion; or

— purposeful conduct

• The statement is offered into evidence for its

truth.

If the witness testifies to any of the above, then

the statement is hearsay unless it falls within one of

the exceptions to the hearsay rule which are enu-

merated and explained later in this chapter.

Non-Assertive Conduct

Out-of-court words spoken by a declarant will

not be a statement and, therefore, will not be hear-

say, if the following foundation is laid:

• The witness testifies that he heard or saw the

declarant;

— unintentionally utter spoken words;

— make written markings not intended as

an assertion; or

— engage in some conduct not intended as

an assertion (non purposeful conduct).

If any of the above foundation requirements is

laid, the statement of conduct is non-assertive and

there is no hearsay problem.

Tactics

The assertive versus non-assertive struggle is one

which is clearer in theory than in practice. When dealing

with this problem, consider the following:

• Did the declarant actually make a statement?

• Was what the declarant said, wrote or did,

intended by him to be an assertion?

• If the spoken word, writing or conduct was

intended to be an assertion, it is hearsay

unless the proponent can convince the court

that it fits within one of the hearsay excep-

tions, or for some other reason is not hearsay

(admission of party opponent).

6-3 HEARSAY §610

• Whether silence can be hearsay. Generally

silence will not be intentional or assertive. If,

however, silence is substituted for a response

(i.e. a question is asked to which an answer

should be given, is heard but no response is

made) the silence can be a statement under

Rule 801 and thus constitute hearsay (silence

may also constitute an admission of a party

opponent). See F. R. E. 801(e).

Cases

Cunningham v. Burns, 2014 WL 4707391 (W.D.

Tex. 2014) Plaintiff in a §1983 action against

municipal police officers for a night time traffic

stop sought to introduce a video recording

apparently made during the day time by two

cameras in a vehicle, one facing the front and

the other facing the rear. The vehicles travelled

the route the police testified they followed as

they observed plaintiff’s vehicle ahead, and

then through the rear view mirror as defendant’s

vehicle passed in the opposite direction. Defen-

dant’s hearsay objection to the recordings was

sustained, because the recordings were asser-

tive conduct being offered for the truth of the

matter. The recordings attempted to prove

how much time the police officer would have

taken to make the trip, and what lines of vision

he would have during that time. Used for that

purpose, the videos were clearly hearsay and

inadmissible.

State v. Palmer, 270 P.3d 891 (Ariz. App. 2012).

Defendant was taken to a hospital after a

one-vehicle crash on his motorcycle. Defen-

dant’s opening statement represented the meth-

amphetamine was not his, he never spoke with

nurses about a backpack, and a backpack was

taken away without it coming into defendant’s

possession. At trial, a nurse testified she had

discovered a baggy containing a substance later

identified as methamphetamine in a backpack

taken from the ambulance to defendant’s trau-

ma bay. The nurse found the baggy and the

backpack were removed from the trauma bay by

two women. Over a hearsay objection, the nurse

testified the two women asked defendant about

the backpack, saying, “Where is your back-

pack? I recall them asking where his backpack

was.” The appellate court ruled the statement

made by the women was not intended as an

assertion but an attempt to find the backpack.

State v. Rosado, 39 A.3d 1156 (Conn. App. 2012). In

a murder prosecution, defendant attempted in

cross-examination of the lead detective to elicit

testimony that a concerned citizen who called

police about a shooting did not identify defen-

dant as a party to the event. The officer testified

earlier on cross-examination that the information

from the concerned citizen would not have been

valuable to defendant because “it doesn’t take

him out of it.” The prosecution objected on hear-

say grounds, contending even defendant’s pro-

posed question, “Did the concerned citizen men-

tion the defendant?” amounted to hearsay, even if

only offered to impeach the detective’s testimony

that it would not take the defendant out of it.

Likening the proposed question to Sherlock

Holmes’ “dog that didn’t bark in the night,” the

trial judge sustained the objection. On appeal, the

trial judge was sustained. The evidence defen-

dant sought would have impeachment value only

if a fact-finder could infer from the concerned

citizen’s silence that defendant had no associa-

tion or involvement in the crime. Where silence

is offered as nonverbal conduct, such evidence is

inadmissible unless it is a reliable indicator of

what the offering party claims it intended to com-

municate. The defendant sought to use the con-

cerned citizen’s silence in an assertive manner,

and so the evidence was inadmissible.

Sandefur v. State, 945 N.E.2d 785 (Ind. App.

2011). In a domestic abuse case, the trial court

overruled defendant’s hearsay objection to a

police officer’s testimony that the victim

mouthed the words, “He hit me.” On appeal, the

state argued first that the statement was not

hearsay because the officer could not be com-

pletely certain what the victim meant to say,

and, thus, he was only offering his interpreta-

tion of his conduct. The testimony was hearsay

as nonverbal conduct of a person intended by

the person as an assertion. Nevertheless, the

testimony was proper under the excited utter-

ance exception. The officer testified he heard

defendant had the victim cornered in the house,

was yelling at the victim while she was crying,

and the victim was bleeding and reluctant to

make eye contact with the officer. The fact that

she was unwilling to make her accusation aloud