AuthorGordon P. Cleary
§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
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.
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
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.
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
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
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.
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).
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
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

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