Meaning, intention, and the hearsay rule.

• Author: Kirgis, Paul F.

INTRODUCTION

Hearsay problems are language problems. The hearsay rule proscribes the repetition in court of out-of-court statements offered "to prove the truth of the matter asserted." (1) To determine whether a statement is being offered to prove the truth of the matter it asserts, a court must determine what the statement means. In this respect, applying the hearsay rule is similar to interpreting a statute or a contract: in each case, the court must interpret language at a remove from the context of its utterance. Scholars have long recognized that questions about statutory and contract interpretation are questions about meaning, and they have effectively used linguistic analysis to elucidate these and other interpretive questions. (2) Surprisingly, however, relatively little effort has been made to apply linguistic principles in the study of the hearsay rule. (3)

In this Article, I draw on insights from the linguistic discipline of pragmatics to offer another way to understand and apply the definition of hearsay in the Federal Rules of Evidence. Pragmatics is concerned with how we use language in real-world contexts to accomplish various objectives. (4) By identifying the conventions that govern language usage, pragmatics provides ways to analyze what a speaker means when he says something and how meaning is conveyed through language. (5) Pragmatics thus has obvious utility for the study of hearsay.

The philosopher Paul Grice looms over the field of pragmatics. His theory of conversational implicature revolutionized linguists' understanding of how we communicate. (6) It is Grice's pragmatic theory of meaning, however, that has the greatest import for me. Meaning is an extraordinarily difficult concept. No single theory of meaning has been accepted for all purposes. I will argue, however, that the definition of hearsay in Federal Rule of Evidence 801 (Rule 801) requires an inquiry into what linguists call "speaker's meaning." I will then offer a formula for identifying hearsay based on Grice's theory of speaker's meaning. Finally, I will apply my approach both to basic situations and to a number of hearsay problem areas to demonstrate how it can facilitate the resolution of even the most intractable hearsay issues while effecting the rationale underlying the hearsay rule.

My objectives are twofold. First, by showing how hearsay problems fit into an established linguistic framework, I hope to respond to some of the criticism of the prevailing understanding of the hearsay rule. (7) I attempt to show that, contrary to that criticism, the definition of hearsay in Rule 801 can be consistently and rationally applied even in difficult cases. Second, I propose a hearsay formula that I hope can assist judges in resolving real-world hearsay problems. Specifically, I will argue that judges should focus on the communicative intention motivating the statement, and that recognizing that intention requires a focus on preexisting understandings between the declarant and her audience.

1. THE DEFINITION OF HEARSAY IN RULE 801

   1. The Implied Assertion Problem

      A prerequisite to understanding the modern hearsay rule is understanding the historical debate about the scope of the rule. This debate has its origin in the celebrated nineteenth-century case of Wright v. Tatham. (8) A Dickensian epic that meandered through England's courts for the better part of a decade, Wright was a suit by an heir at law to recover land from a devisee under a will. (9) The case turned on the validity of the will, specifically on the testator's mental capacity. (10) As evidence of the testator's capacity, the defendant offered several letters written to the testator in the years prior to his death. (11) None of the letters expressly commented on the testator's mental capacity, but the content suggested that the letter writers believed the testator was competent. This inference was offered as evidence that the testator was in fact competent. (12) The case went all the way to the House of Lords, and the letters ultimately were declared inadmissible hearsay because their relevance depended on the credibility of the nontestifying letter writers. (13) That is, the letters were hearsay because the factfinder was being asked to trust the memory, perception, narrative capacity, and sincerity of the letter writers without the benefit of cross-examination. (14)

      Wright may be known best for a hypothetical suggested in dicta by Baron Parke, the author of the most influential opinion. Parke posited a hypothetical in which the seaworthiness of a vessel is at issue, and as evidence of seaworthiness, a party calls a witness to testify that the captain of the ship inspected it at the dock and then boarded with his family. (15) Parke concluded that the witness's testimony in that situation would be hearsay, because the captain is in effect "testifying" to the seaworthiness of the vessel, and the factfinder is being asked to rely on the captain's perception, memory, and sincerity without the benefit of cross-examination. (16)

      For both the letters actually offered in Wright and the ship captain hypothetical given in dicta, the factfinder was asked to make what Christopher Mueller has described as a "two-step inference." (17) From the declarant's conduct--writing a letter proposing a business transaction or boarding a ship--the factfinder is asked to infer the declarant's belief about some real-world condition, in this case the competence of the recipient or the seaworthiness of the vessel. Based on that belief, the factfinder is asked to infer that the real-world condition existed. This type of evidence--now packaged under the heading "implied assertions" --is problematic because its validity turns on the un-cross-examined belief of the declarant. Its treatment has informed the debate about the definition of hearsay for over 150 years. (18)

   2. Hearsay Definitions Past and Present

      Wright apparently represented the common law view of hearsay at least until the beginning of the twentieth century. (19) Courts and commentators of that era typically eschewed formalistic definitions (20) in favor of a loose, conceptual approach to hearsay, focusing on the importance of the cross-examination of any witness whose credibility was at issue. (21) This approach allowed for essentially ad hoc judgments based on a range of credibility concerns, freeing courts either to take the hearsay rule to its Wright-inspired limits or to apply it more narrowly. (22)

      In the twentieth century, the credibility-based approach embodied by Wright began to fall out of favor. The reformist trend, with its emphasis on black letter rules, emerged in the law of evidence as in other common law disciplines. (23) Relying on Wigmore, courts found a concise hearsay formulation in the language that now seems so familiar, defining hearsay as "extrajudicial utterances" offered to prove the "truth of the matter asserted." (24)

      Over the next half century, the "truth of the matter asserted" definition became internalized in the common law of evidence. (25) With the passage of the Federal Rules of Evidence, it was formally codified. Under Federal Rule of Evidence 801(c), hearsay is defined as "a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." (26)

      The substitution of a single, concise rule for a vague, conceptual principle necessitated some line drawing on the difficult issues presented by Wright. Although influential commentators praised Wright for its intellectual integrity, few wanted a hearsay rule as broadly exclusionary as Wright seemed to require. (27) In addition, courts defining hearsay in "truth of the matter asserted" terms increasingly held that Wright-type evidence was not hearsay. (28) These trends forced the codifiers of the Federal Rules of Evidence to decide how evidence offered for the two-step inference should be treated under their definition.

      The drafters easily dispensed with the issue of nonassertive conduct (Baron Parke's ship captain hypothetical). They accomplished this by incorporating into Rule 801 the following definition of "statement": "(1) an oral or written assertion or (2) non-verbal conduct of a person, if it is intended by the person as an assertion." (29) By providing that conduct can qualify for hearsay treatment only if it is intended as an assertion, the definition unambiguously removes nonassertive conduct offered for the two-step inference from the scope of the hearsay rule.

      The Rule is not as clear with respect to verbal assertions offered for the two-step inference, as in the letters in Wright. (30) In the notes following Rule 801, however, the Advisory Committee expressed its intention to treat verbal assertions as not hearsay when offered for the two-step inference. It did so by explaining why nonassertive conduct is not hearsay. Although modern cognitive research teaches that problems of misperception and poor memory are probably much more significant, (31) legal commentators have tended to see the risk of insincerity as the most problematic of the four testimonial infirmities. Following that line of reasoning, the Advisory Committee enunciated a rationale for the exclusion of nonassertive conduct grounded in the reduced risk of insincerity associated with that kind of evidence:

      Admittedly [nonverbal conduct] is untested with respect to the perception, memory, and narration (or their equivalents) of the actor, but the Advisory Committee is of the view that these dangers are minimal in the absence of an intent to assert and do not justify the loss of the evidence on hearsay grounds. No class of evidence is free of the possibility of fabrication, but the likelihood is less with nonverbal than with assertive verbal conduct. (32) Having spelled out that rationale, the Committee added one more sentence: "Similar considerations govern nonassertive verbal...