Section 16.1 Hearsay Generally

• Library: Evidence 2017

A. (§16.1) Hearsay Generally

Before addressing the “exceptions” to hearsay, it is important to understand the definition codified in the federal rules and adopted in the Missouri cases. Hearsay is 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). Missouri has no codified definition of hearsay, but the cases note that “[h]earsay is defined as ‘any out-of-court statement that is used to prove the truth of the matter asserted and that depends on the veracity of the statement for its value.’” State v. Reynolds, 456 S.W.3d 101, 104 (Mo. App. W.D. 2015) (quoting State v. Sutherland, 939 S.W.2d 373, 376 (Mo. banc 1997)).

The definition requires that there be a declarant. If the evidence being offered at trial does not have a declarant, it is not hearsay. A person is required before a statement can be labeled “hearsay.” Machines, for example, do not make hearsay statements. See City of Webster Groves v. Quick, 323 S.W.2d 386, 390 (Mo. App. E.D. 1959) (testimony of a machine reading is not hearsay); Reynolds, 456 S.W.3d 101 (screenshots of the call log from the defendant’s cell phone were admissible—the phone generated the information).

The federal rules, however, provide that “a reference to any kind of written material . . . includes electronically stored information.” Fed. R. Evid. 101(b)(6). If a person generates the electronically stored information rather than a machine, the statement may be “hearsay” under Missouri law as well as the Federal Rules of Evidence. See also the definition of “[s]tatement” in Federal Rule of Evidence 801(a)—a hearsay statement is defined as “a person’s oral assertion, written assertion, or nonverbal conduct, if the person intended it as an assertion.” The human assertion is more important than how the statement is made or retained in deciding whether it is governed by the rules on hearsay.

The person must declare an assertion, either oral or written, or nonverbal conduct intended as an assertion. Mo. Evidence Restated §801 (MoBar 5^th ed. 2015). A “spontaneous reaction” or a “greeting” or “personal observations of events recorded” are not statements. See, e.g., State v. Workes, 689 S.W.2d 785, 785–86 (Mo. App. E.D. 1985) (the act of the victim “backing up” was not an assertion but a “spontaneous reaction”); State v. Joiner, 823 S.W.2d 50, 55 (Mo. App. E.D. 1991)...