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. The Texas Rules of Evidence define the term “matter asserted” to include any matter explicitly asserted, as well as any matter implied by a statement, if the probative value of the statement as offered flows from declarant’s belief as to the matter. (Under the Federal Rules of Evidence the term “matter asserted” is not defined, thus limiting the applicability of the hearsay rule in federal courts to those matters actually asserted, not to those merely implied.)
TRE 802 boldly declares hearsay to be inadmissible unless otherwise permitted by rule or statute. Never has there been a better example of the “exception swallowing the rule” than in the notion that hearsay is inadmissible. Not counting hearsay that is admissible pursuant to statutory authority, four separate hurdles in the Rules of Evidence themselves must be cleared before hearsay evidence will actually be inadmissible. In order to constitute inadmissible hearsay, the statement must: (1) fall within the Rule 801(a-d) definition of hearsay and not within the Rule 801(e) definition of “non-hearsay”; (2) not fall within 24 enumerated exceptions which apply no matter whether the declarant is “available” or “unavailable”; (3) not fall within the three other enumerated exceptions which apply when the declarant is “unavailable”; and (4) meet resistance in the form of a timely, specific objection. The fourth hurdle is especially significant, because if no objection is lodged, hearsay evidence is both competent and probative.
When it comes to hearsay, it is never too ambitious an undertaking to look for an exception for every objection. Even hearsay-within-hearsay is admissible, as long as each offered portion fits a rule or exception. The next series of posts will examine the hearsay exceptions, but before tackling the exceptions, it might be a good idea to take another quick look at what hearsay is, and what it isn’t.
STATEMENTS THAT ARE NOT HEARSAY
Wise practitioners follow the King’s advice to the White Rabbit and “begin at the beginning” when considering the admissibility of evidence within the context of hearsay. Rather than skip directly to the exceptions, it is usually best to begin with the more fundamental question – is this evidence really hearsay?
The answer isn’t always as obvious as it seems. For example, an attorney need not fret over whether a lunatic’s outburst “Repent now – the end is near!” meets the excited utterance exception to the hearsay rule if the statement isn’t offered to prove that, in fact, the world is coming to an end. Not offered for the truth of the matter asserted, the apocalyptic warning simply isn’t hearsay to begin with. On the other hand, just because a witness is available and providing testimony in court doesn’t mean that his own prior out-of-court statement isn’t hearsay. If offered to prove its truth, a prior statement may very well be barred by hearsay notwithstanding the fact that the witness is available in court and subject to thorough cross-examination regarding it.
TRE 801 defines hearsay 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. The three terms, “statement,” “declarant,” and “matter asserted” are defined in the rule.
The “declarant” is the person who made the statement. The term “matter asserted” includes any matter explicitly asserted, as well as any matter implied by the statement. “Statement” means: (1) an oral or written verbal expression, or (2) nonverbal conduct, if it is intended as a substitute for verbal expression. Because hearsay statements encompass both verbal and non-verbal assertions, silent gestures such as pointing, nodding, or headshakes may be subject to challenge if these gestures are used as a substitute for a verbal response such as “over there,” “yes,” and “no.” However, other non-verbal gestures, such as tears, may not be characterized as hearsay if the declarant did not intend the gesture to be an assertion.
In the hearsay context, an out-of-court “statement” will generally fall within one of six categories, as explained below:
- Explicit Verbal Assertion. Example: The statement – “A section of the bridge collapsed, and I fell into the icy water as I walked across it” used to prove that the bridge collapsed and the declarant fell into the water. HEARSAY
- Implicit Verbal Assertion. Example: The statement – “Don’t walk on that bridge,” used to prove that the bridge was unsafe. HEARSAY
- Explicit Non-Verbal Assertion Substituting for Verbal Assertion. Example: The gesture – a shake of the head in response to the question, “Is the bridge safe?” used to prove that the bridge was unsafe. HEARSAY
- Implicit Non-Verbal Assertion Substituting for Verbal Assertion. Example: The gesture – declarant grabs another person’s arm to impede his progress as his approaches the bridge, used to prove that the bridge ahead was unsafe. HEARSAY
- Verbal Expression. Example: The question – “Do you have a blanket I could use?” used to prove that the declarant was cold. HEARSAY
- Non-Verbal Expression. Example: The gesture – declarant’s teeth were chattering, used to prove that declarant was cold. NOT HEARSAY
As these six examples demonstrate, “statements” can be assertions or merely expressions, explicit or implicit, verbal or non-verbal. Only in the latter category, the non-verbal expression, does the statement fall outside the definition of hearsay. The nonverbal expression fails to meet the definition of “statement” because the declarant did not intend it to be an assertion. (According to the rule, only if the declarant intends for his conduct to be an assertion will nonverbal conduct be considered hearsay.)
THE HEARSAY STATEMENTS THAT AREN’T
Sometimes a statement can look like hearsay and sound like hearsay – heck, it can even meet the very definition of hearsay – and still it isn’t hearsay. To remember which statements fall within this loophole, one must think like a child. When is hearsay not hearsay? Either when someone uses magic words, or when your mother says so, that’s why.
Magic Words: When the mere making of an out-of-court statement – regardless of its truthfulness – has legal significance, then it is magically transformed into a statement of “operative fact” which is not hearsay. In this situation, even though the statement itself could provide proof of the truth of the matter asserted therein, it is offered for a more essential purpose. For example, when the words themselves constitute a necessary part of the cause of action or defense, such as when the mere making of the statement forms the basis of a fraud claim or constitutes the offer, acceptance or terms of a contract, then the statement itself is an operative fact and, therefore, not hearsay.
Because The Rule Says So, That’s Why: Then there are those statements which fit squarely within the definition of hearsay, but nevertheless Rule 801(e) simply declares them not to be. Rule 801(e) identifies five categories of non-hearsay statements: (1) prior inconsistent statements, (2) prior consistent statements offered to rebut a charge of recent fabrication, improper influence or motive, (3) prior statements of identification of a person made after perceiving the person, (4) admissions by a party opponent, and (5) depositions taken in the same proceeding. (Some of these non-hearsay statements have been discussed in prior posts. Follow the link provided for a more in-depth look at these.)
Keep in mind that when responding to a hearsay objection lodged against these non-hearsay statements, it may be tempting to respond that these statements are exceptions to the hearsay rule. But, technically, that is not correct. These statements don’t fall within a hearsay exception – they are simply not hearsay to begin with.
— Bonnie Sudderth, Judge of the 352nd District Court of Tarrant County, Texas
 Tex. R. Evid. 801(d).
 Tex. R. Evid. 801(c).
 Tex. R. Evid. 802; see Tex. R. Evid. 801(e), 803, 804.
 See, Miranda v. State, 813 S.W.2d 724, 735 (Tex.App.—San Antonio 1991, pet ref’d).
 Unobjected to hearsay statements will not be denied their probative value merely because they are hearsay. Tex. R. Evid. 802.
 Lewis Carroll, Alice’s Adventures in Wonderland.