The Scrivener
| Publication year | 2022 |
| Pages | 56 |
When is a question not a question?
By Scott Moïse
At an evidence CLE at the South Carolina Bar Convention in Greenville this year, a judges' panel discussed a hearsay issue, raising the issue of whether a witness's out-of-court utterance—which was in the form of a question—constituted hearsay. For example, assume that a police officer asked a defendant at the time of arrest, "Can you explain why a bag of weed was sitting on your lap when I came in the room?" The officer who asked the question did not attend the trial, and the solicitor wants a witness to testify that he overheard the officer asking the question.
Is the police officer's question inadmissible hearsay? Is a question even a "statement" for hearsay purposes? Under grammatical rules, a statement is a declarative sentence, and a question is an interrogative sentence, and never the twain shall meet. Courts have come to three different conclusions.
First, what is hearsay?
"Hearsay" means a statement that:
(1) the declarant does not make while testifying at the current trial or hearing; and
(2) a party offers in evidence to prove the truth of the matter asserted in the statement.
Fed. R. Evid. 801(c).
"Hearsay" is 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.
S.C. R. Evid. 801(c).
What is a "statement" under the hearsay rule?
"Statement" means a person's oral assertion, written assertion, or nonverbal conduct, if the person intended it as an assertion.
Fed. R. Evid. 801(a).
A "statement" is (1) an oral or written assertion or (2) nonverbal conduct of a person, if it is intended by the person as an assertion.
S.C. R. Evid. 801(a).
What is an "assertion"?
Unfortunately, the evidence rules do not define "assertion," but McCormick on Evidence, which is frequently cited for evidence purposes, states that "the word simply means to say that something is so, e.g., that an event happened or that a condition existed." Kenneth S. Broun, et al., 2 McCormick on Evidence, § 246 (7th ed. 2013). Legal writing scholar Bryan Garner defines the term as being "a declaration or allegation" or "person's speaking, writing, acting, or failing to act with the intent of expressing a fact or opinion." Black's Law Dictionary 143 (11th ed. 2019) (emphasis added). Black's also states that questions generally "contain no assertion; they simply seek answers." Id.
What do the courts say?
As the Kentucky Supreme Court has noted, many other courts have addressed this issue, with varying results:
Whether a question can be an assertion and, thereby, hearsay has been extensively discussed by numerous courts and commentators, though no consensus has been reached. The courts that have considered the issue have reached one of three conclusions: (1) a question can be hearsay if it contains an assertion; (2) a question can be hearsay if the declarant...
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