The purpose of the hearsay doctrine is to exclude evidence which may lack reliability. Analogous to the best evidence rule, the hearsay rule gives preference for live testimony subject to cross examination as opposed to out of court statements being later repeated in trial which are thus no longer subject to cross examination. It is thought that the mechanism of cross examination is the most effective tool we have for delivering and finding truth in our jury system. We want an individual who makes a statement to be cross examined as to his or her perception, memory, narration, and sincerity giving rise to that statement. If the individual who initially makes that out of court statement is not presently on the witness stand then there is no way to test his or her memory or perception with regard to that statement.
The hearsay rule is complex. As a starting point, we need to understand the nuts and bolts of what statements the rule does in fact apply to. The first concept to remember is that hearsay statements must have been made by an out of court declarant. This means that the statement was made at some time prior to trial by an out of court declarant. Beyond this, you need to look at the statement itself. Hearsay statements are statements which are used to prove the truth of the matter asserted. What this means is that we need to look at the content of the assertive statement. Then you need to look at the reason that the statement is being offered into evidence. There will be times, for instance, when the out of court statement is being used for a different reason other than to demonstrate the truth of the facts in the assertion. A common example of this alternative purpose is that of demonstrating notice or knowledge of the speaker or listener. The statement may be offered to show that the defendant had notice of a particular circumstance rather than proof that the actual circumstance is as stated in the assertion. Since, in this case, the statement is being used to demonstrate the effect the statement had on the listener of that statement there is thought to be no need to cross examine the speaker of the statement. The speaker’s perception or memory which gave rise to his or her statement is not of consequence. What is of consequence is simply that the listener heard the statement or that the speaker made the statement. Since the listener is on the stand and can attest to the statement he or she heard, the listener can be cross examined on his or her memory and perception of what he or she heard.
Thus, the first step in any hearsay analysis is to determine whether the statement made constitutes hearsay. If the statement does not constitute hearsay then the hearsay prohibition is of no consequence and the testimony is admissible assuming no other rule prevents admission. After you conduct the first part of your analysis and determine if the statement constitutes hearsay you can then go on to the second step of your analysis. In the second step of your analysis, if the statement is considered hearsay, you can then go on to determine if there is an exception or exemption to the hearsay rule which is applicable. If an exception or exemption applies to the statement then the statement can be admitted despite the hearsay nature of the statement. The hearsay rule is tricky because there are multiple steps in the hearsay analysis.
As mentioned, in order for a statement to qualify as hearsay you must first determined if the statement is an “assertive statement” or a “declaration”. An assertive statement is one that makes a declaration or assertion as to facts. This doesn’t include, for example, questions posed to another or orders issued by one individual to another. So if an out of court declarant asks a question to another individual out of court then that question can be repeated in court without it being considered inadmissible hearsay. If an individual issued orders to another individual to complete a task for example, this also would not be considered hearsay as it is not an assertive statement or declaration. If you are examining a witness in trial regarding a, non hearsay, out of court statement then simply wait until the inevitable objection is raised by your opponent. When the objection is stated by opposing counsel ask your judge for permission to approach the bench. At the bench, outside the presence of the jury you can make an offer of proof as to the non-assertive nature of the out of court statement. Your trial judge can then overrule the objection and let you continue on with your query, subject to a motion to strike. Be mindful that there may be times when an assertion of fact is phrased within a question, or exclamation, or imperative. If you are attempting to show that the testimony you seek to illicit is not hearsay as it is not an assertive statement understand that an objection may be sustained if the judge determines that your true goal is to prove the truth of an assertion disguised as what you contend to be a non-assertive phrase.
Beyond the concept of understanding what is declaratory speech you should also understand that declaratory statements, per the hearsay rules, encompass more than just speech. A person’s actions can constitute assertive statements as well. The most common assertive action is likely going to be an individual shaking his head up and down or left and right in response to a question. Another act might be an individual pointing a certain direction in response to a question regarding where something is. Be mindful of the fact that some courts will also consider non-assertive acts to be hearsay statements. However, this perspective is becoming somewhat dated with courts tending to see such non-assertive acts as outside the hearsay definition.
Where things get trickier is when we look to see if the statement was made for the truth of the matter asserted. So that if we determine that the statement is a declarative one we then must consider whether the out of court statement is being offered for its truth. Remember that the reason why we want to exclude hearsay is because the out of court declarant’s memory and perception cannot be tested, as to the contents of the prior statements. However, if the contents of the statement are not in issue then there really is no need to test the speaker’s memory or perception which gave rise to the statement. There will be times when the statement will be made for another reason, other than to prove the content of the statement. For example, the out of court statement could be presented to demonstrate the frame of mind of the speaker or the frame of mind of the listener. For example, let’s say the speaker’s out of court statement is “Mr. Johnson had sexual relations with my wife”. The plaintiff may want to present this out of court statement not as proof that Mr. Johnson has had sex with the defendant’s wife but rather for the purpose of demonstrating the defendant’s state of mind. The state of mind is hatred for the plaintiff which is relevant as to motive for the crime or tort. There is thus no need to cross examine the declarant as to his perception or memory regarding the facts in the statement. The only thing that the jury needs to know is that the declarant defendant made the statement which demonstrates the declarant’s state of mind. To take another example, let’s assume that Mr. Johnson makes an out of court statement to the defendant. Let’s say that Mr. Johnson says to the defendant, “I just had sex with your wife”. If this out of court statement is being used to prove that the plaintiff had sex with Mr. Johnson’s wife then it would be hearsay as it would be used to prove the truth of the matter asserted. However, if the proponent is attempting to illicit the statement to show the affect the statement would have on the defendant’s state of mind then it would not be hearsay. We can assume that when the defendant heard this statement he was filled with malice and hatred. Since malice and hatred, state of mind of the defendant, goes to motive which is relevant to the case and the statement is not being used to prove the truth of the matter asserted but rather the effect on the listener it is not considered hearsay.
This blog/article reflects just some of the rules regarding hearsay. There is much more. Hearsay rules are governed by both state evidentiary rules as well as the Federal Rules of Evidence. Keep in mind, that each state has its own rules of evidence which may or may not reflect the Federal Rules of Evidence. For more information on hearsay rules I suggest that you read Edward Imwinkelried, (2012) Evidentiary Foundations. This book is very thorough and should be read by every trial lawyer. This book was my primary source of information for this particular blog. I am by no means an expert in this area. I write these blogs/articles for my own personal learning benefit.