Evidence Notes File 3-B

LAW 6330 (4 credits)
Professor Pedro A. Malavet

III. Hearsay (continued, second of three files)

The Forest in Chapter III:

  • On our Initial Look at Hearsay, ask:
  • (1) Is the offered evidence relevant? [FRE 401] [FRE 402]
  • (2) Is the offered evidence hearsay? [FRE 801, et seq.]
    • (a) Does the evidence fit within the definition of hearsay of FRE 801(a),(b)&(c)?
      • Remember the Non-Truth Uses
      • If "no", go to 403, if "yes" the evidence is presumptively inadmissible under FRE 802[a] unless FRE 802[b] leads to an exemption or exception.
    • (b) Even though it fits the 801(a),(b),(c) definition of hearsay, is it nevertheless within some exemption that expressly defines it as "not-hearsay" or "nonhearsay" [FRE 801(d)]?
    • (c) Even though it fits the 801(a),(b),(c) definition of hearsay, AND despite it failing to be exempted by 801(d), is it nevertheless within some exception found in the rules, especially in FRE 803 and 804?
  • (3) Should the offered evidence be excluded, despite being relevant, and regardless of the answer to the hearsay question? [FRE 403]

Chapter 3 is about impressing upon the student that this analysis can be quite complex. Consider that you have to examine acts and statements in their context, in order to answer the hearsay question. Humans communicate in complex ways, therefore, you have to imagine the entire scene, rather than focusing on a cold transcript of what was said or done. Hence the casebook authors' references to "performances" or to the "performative aspects of the assertions and acts." [Click here for more on this].

3.4 Defining [NOT?] Hearsay (continued).

Big Picture Note for Non-Truth Uses

This section is all about the common law doctrines that negatively define hearsay, that is, examples of items that are legally deemed not to trigger the definition of hearsay of FRE 801(a)(b)&(c). The cross-references are to the pertinent problems and to associated rules.

  • (1) Impeachment
    [Problem 3-C] [FRE 607] [FRE 611(b)] [FRE 613] [FRE 801(d)(1)(A)] [FRE 803(3)] [FRE 401] [FRE 403]
  • (2) Verbal Acts (or parts of acts)
    [Problem 3-D] [Problem 3-E] [FRE 801(a),(b) & (c)]
  • (3) Effect On Listener or Reader
    [Problem 3-F]
  • (4) Verbal Objects 
    [Which, as I explain below, I prefer to call a specific form of verbal acts].
    [Problem 3-G]
  • (5) Circumstantial Evidence of State Of Mind, and 
    [Problem 3-H]
  • (6) Circumstantial Evidence of Memory or Belief. 
    [Problem 3-I]

Note that while some of these exemptions can be expressly found in the rules, the majority are more logically negatively related to the Rule's definition of hearsay in FRE 801(a),(b)&(c). Most frequently, it is said that the evidence does not fit within FRE 801(c) (i.e., it fails to fit within the "truth of the matter asserted" language). Accordingly, such statements are deemed, in fact, legally presumed, not to be offered to prove the truth of the matter asserted because courts have ruled that under applicable substantive law or as a matter of common law, the matter is, for example, an element of the offense, as is often the case with verbal acts. Alternately, the court might rule that the matter is not an assertion or that it is conduct that was not intended to be an assertion (often the case with ownership marks).

Note further that we will discuss three major categories of Not-Hearsay:

  • (1) Nonhearsay
    not within the definition
    [FRE 801(c)(2)]
  • (2) “Not Hearsay”
    exclusions from the definition by (Congressional) fiat;  hearsay, but not really
    [FRE 801(d)(1) & FRE 801(d)(2)] [FRE 802]
  • (3) “Exceptions”
    hearsay but admissible
    [FRE 802] [FRE 803] [FRE 804] [FRE 805, 806, 807]

Problem 3-F: "I'm From the Gas Company [and unbelievably stupid]": Effect on Listener

  • Authors' Answers with my comments.
  • In substance, Forrest says he is an agent for Interstate Gas. When offered to prove agency, his statement is hearsay because its assertive quality is critical to this purpose. [FRE 801(d)(2)] When offered to prove reasonableness of Alford's conduct, however, the statement is not hearsay, for what is important is the reaction of a reasonable person on hearing the statement, not the statement in its assertive aspect. In short, it is offered to prove effect on the listener.
  • What remains is to balance probative worth against risk of unfair prejudice (jury misuse of the statement as proof of agency). [FRE 403] .
    • Note the language of the final paragraph or FRE 801(d)(2): The contents of the statement shall be considered but are not alone sufficient to establish the declarant's authority under subdivision (C), the agency or employment relationship and scope thereof under subdivision (D), ***
    • Thus, the statement has mixed admissibility and classification under the hearsay doctrine:
      • (1) HEARSAY under 801(a)(b)&(c), but EXEMPTED by 801(d)(2)(D) with express limitations on its probative value imposed by 801(d)(2) last Paragraph, to prove agency, as an exemption under FRE 801(d)(2)(D), albeit only partially and with its probative value for this purpose expressly disfavored by the last paragraph of the rule, and
      • (2) NOT HEARSAY: to prove the effect on the listener, i.e., Plaintiff Alford acted reasonably in approaching the gas leak with someone he believed to be an employee of the Gas Company who was unafraid and in fact instructing him to go there.
    • Another way of looking at it is that in (1) the assertive nature of the statement is important, whereas in (2) the effect on the listener, or non-assertive use is being made to explain why Plaintiff went to the area of the leak.
  • Could Forrester take the stand to testify that he was an employee of the Gas Company and was acting on their behalf?
  • The authors: The answer is Yes.... While Forrest cannot constitute himself an agent who can bind Interstate Gas by going abroad in the world and claiming that he has the right to do so, he can give persuasive evidence in court that he is employed by Interstate Gas with the duty to investigate leaks. Such testimony would be ample to establish the point. Of course Interstate Gas might offer counterproof (testimony by personnel officer that Forrest is not on the payroll, or that he ceased to have this responsibility as of thus-and-such date).
    • The actual court ruled that the statement was admissible both as partial proof agency, and to show the effect on the listener. (Note that the likelihood of exclusion under FRE 403 is substantially higher if the statement is only being used to prove agency.) The court wrote:
  • It is the law that agency cannot be shown by the declarations or statements of the alleged agent or servant, standing alone; but where there is evidence sufficient to show the fact of agency or employment prima facie, declarations or statements of the alleged agent are admissible in corroboration, and especially is this the rule where such declarations or statements constitute a part of the res gestae of the transaction in question. . . . Since we hold that there is evidence in this record to show prima facie that Joe Woods was the agent or servant of Travis Gas Corporation, independent of what he said on the occasion of this explosion, it follows that we further hold that the trial court erred in excluding the testimony above indicated. We pass on this question in view of the fact that the disposition we shall make of this appeal may result in another trial in the district court.
  • [Effect of the Affirmative Defense by the Gas Company:]
    • There is another reason why we think that the statements above detailed, made by Joe Woods to McAfee just prior to this accident, were admissible. It was alleged by the defendant that McAfee was guilty of contributory negligence in knowingly going into this place of danger. Such a charge raised the issue as to whether or not McAfee, under the surrounding circumstances, acted as a reasonably prudent person would have acted in showing the leaks in this pipe line to Woods. In such a case the information, whether true or false, on which McAfee acted at the time, was admissible as original and material evidence bearing on the question of contributory negligence.

    • McAfee v. Travis Gas Corp., 153 S.W.2d 442, at 448 (Tex. 1941).

Problem 3-G: Eagle's Nest Bar & Grill: Verbal Objects, Identification

I lecture on this problem.

  • [CB] 1. [The Mark of Advertising Location and Existence] As proof that Seaver had been to the Eagle's Rest Bar & Grill, a book of matches found in his possession bearing the legend "Eagle's Rest Bar & Grill, Pine Meadows";
  • [CB] 2. [The Mark of Ownership] As proof that Seaver spent time at the house in Alton, a mug found there bearing the likeness of an Indian Warrior and a legend pro claiming "Chief Illiniwek" and "The Fighting Illini" and, below these, the word "Witter";

  • [CB] 3. [The "Mark" [?] of Identification] As proof that Seaver knew Stacey Nichols,

    • (a) testimony by a barmaid at the Eagle's Rest Bar & Grill that she saw Nichols in the bar on numerous occasions with a man whose name she did not know and that she accurately pointed the couple out to undercover officer Isom, along with [in other words, she testified: "And I SAID to officer Isom that that was the couple"]
  • (b) Isom's testimony that the man the barmaid pointed out with Nichols was Whitney Seaver.

Authors' Answers and my comments.

The authors put this one in the category of "Verbal Objects" within the list of six non-truth uses of hearsay. I frankly don't.

Note that the logic of a "Verbal Object" is that this is a self-identifying object. As I indicate below, I find this logic deeply flawed, and would rather think that the items reflect verbal acts on the part of the persons who made or adopted the words.

Note that these are obviously words, the question is, do we treat these words as "assertions" or do we treat them as "acts." Alternately, we can deem that their use as acts is AS A MATTER OF LAW different from their use to prove the truth of the matter asserted.

  • Assuming the Verbal Object theory, the authors indicate:
  • As to the matchbook:
    • Arguably the matchbook legend is hearsay. It amounts to a statement by the proprietor of the establishment that is meant to be advertising: ***
    • But there is a way around the hearsay objection: If the prosecutor demonstrates that matchbooks bearing that legend come from that place (testimony by the proprietor or a defense stipulation [or judicial notice]), the legend is an identifying characteristic of the object (similar to the shape and colors of the lettering that identify a can of Coke). The proprietor might even bring a sample matchbook; on the stand he might examine the one found on Seaver and testify that it "matches" the ones he gives out at his place. With such proof, the legend is not used in its assertive aspect, and the matchbook is another "verbal object." We think this approach is the best one to take.
  • MALAVET: Alternately, judicial notice (FRE 201) or 902(7) (self-authentication).
    • Consider this alternative fact-pattern in defense of the Verbal Object theory: Defendant is charged with murder. At trial, a family member of the victim identifies an expensive piece of electronic equipment found in the defendant's house as having come from the victim's home. The evidence is used to prove that defendant was at the victim's home. Alternately, consider that the object being used is a matchbook on which the following words are printed: "From the Home of [Victim's Name]".
  • What the cases actually do. The cases do not reach consistent results, but often take legends on objects as non hearsay circumstantial evidence of identification. See United States v. Meijias, 552 F.2d 435, 446 (2d. Cir.), cert. denied, 434 U.S. 837 (1977) (hotel receipt, luggage invoice, and travel agency business card found in possession of defendant were properly received to connect him to the hotel and travel agency; they were not hearsay under FRE 801(c), for jury could "consider them circumstantially to corroborate other evidence in the case").
MALAVET: I HATE Verbal Objects

I personally do not like this "Verbal Object" category. I consider this a "Verbal Act" of advertising that the matchbook came from your place, and, as to the mug, an act of ownership/custody.

While I agree that it generally makes sense to allow the admission of the evidence over a hearsay objection, I think that the Verbal Object classification nonetheless ignores the possible hearsay dangers too much. Hence my preference for relating the objects to the acts of the persons who produced or adopted the marks on them as statements, and calling them Verbal Acts. The case cited above I think really proves the point. In order to reach the desired conclusion, you have to accept the truth of the matter asserted on the objects, i.e., that they came from the hotel or travel agency. Nevertheless, to the extent that the matter involves a mark on an object, you are welcome to call that a Verbal Object, which professor Malavet considers a sub-category of Verbal Acts. This makes it a lot easier to consider arguments in favor of classifying it as hearsay, and I want you always to be prepared to do that. The authors' attempts to define the barmaid's statements as a "Verbal Mark" just drove me over the edge.
  • As to the Mug:
    • Here it is harder to separate words as assertions from words as identifying characteristics [self-identification]. *** They also say, in essence, "this mug belongs to someone named 'Witter' [who is an Illini, Illini alumnus, or Illini-supporter]"
    • The court stated: "Rather, the jury was asked to infer that Dink Hensel was likely to have possessed a glass with the name "Dink" on it and that he, or someone he knew, placed it in the house at Turkey Cove. The first of these inferences is merely circumstantial. There is no obvious way it depends upon the statement or state of mind of any out-of-court declarant."

    • Consider this one: you own a blue car. A witness with personal knowledge of what your car looks like testifies that she saw your blue car parked in the driveway of the murder victim's home. The evidence is being used to establish your presence at the crime scene. The difference between this and the the mug is that the object being used to establish the defendant's presence at a particular location is identifying itself through marks that might constitute assertions. The court chose to ignore the assertive nature marks and focus on the demonstrative value of the evidence.
    • In fact, we are separating any assertion intended by a human declarant, from the object itself in order to use it simply as demonstrative evidence. The reason why this is logically problematic is that when you mark something with your name you INTEND to make the assertion "I OWN THIS." Alternately, when you accept or purchase a mug with your name on it, you do so, again, to ASSERT that it is yours. Calling it a "Mark" does not change the assertive nature of the words or the "brand." And it is those "assertions" memorialized on the object itself that are being used to prove that it belongs to you! Note that the authors are trying to keep the focus on what is not included in 801(a),(b)&(c), but you might argue that the Mug is a statement by "Witter" or by "Dink" that says "This is my mug" and implicitly says "I was here [where you found my mug]." So, you can use 801(d)(2)(A).
  • As to the Barmaid and Officer's statements, the Authors state:
    • First, the barmaid testifies that she knew Stacey Nichols and often saw her at the bar with a certain man whom she did not know, and that she pointed out the couple to the undercover officer. In substance, her testimony is "A fellow often came to the bar with Stacey Nichols, and pointed him out to the officer; I told him 'that's the couple over there.'" Second, Officer Isom testifies that the man whom the barmaid pointed out with Nichols was Seaver. In substance, Isom's testimony is "The fellow the barmaid pointed out is the defendant Whitney Seaver."
    • Note that this tag-team ID is being used to establish defendant's presence at the bar and his connection to Nichols. The court characterized this as a "Verbal Mark" that had to be distinguished from its assertive nature. Judge Weinstein analogized to a blind person who grabs the person trying to steal his wallet, yells for the police, and hangs on to the person until police in fact arrive. The officers then testify that they arrested the person whom the blind person had pinned down. This establishes the identity of the defendant as the person who attempted to steal the person's wallet. I suppose that a better analogy would be the exploding money bag that "tags" the suspect with a dye that is difficult to take off.
    • See also FRE 801(d)(1)(C).

Problem 3-H: "Anna Sofer's Will": Verbal Acts & State of Mind

Note that you need to find two exceptions here:
(1) Admitting the part of the will that actually disinherits Ira as verbal act, and 
(2) Admitting the narrative about why Ira is being disinherited.
  • Authors' Answers and my Comments:
  • [Relevance?] The will suggests that she deeply resented him, and supports the contention that she would not have shared with him much of her expected "significant income" and would not have been much of a companion (a loving spouse). [Arguably reducing the damages].
  • The question is whether the will is hearsay when offered to prove how Anna felt, and how she would likely have treated Ira if she had lived.
  • Heart of the Matter. The will and the comment about Ira are not hearsay, when offered to prove how Anna felt and would likely have treated him. As a dispositive document, the will fits the verbal act doctrine (words having legal significance) and it disinherits Ira. The comment about Ira (he is cruel and selfish) is nonhearsay because it amounts to public conduct by a spouse showing trouble in the relationship, regardless what kind of person Anna thought Ira was.

  • 1. Will as Dispositive Document: *** It is right to say that insofar as the will leaves Ira only $1, we have a verbal act which tends to show that Anna would not supported Ira if she had lived.
    • [But note that this not justify introducing the entire document, just the part actually disinheriting Ira. To get the narrative about Ira being a jerk into evidence, you need another exception.]

  • 2. Will As [Anna's] Commentary About Ira. Even the comment about Ira may be treated as nonhearsay circumstantial evidence of state of mind [i.e., Anna was highly upset] because it amounts to an act of public disclosure revealing a problem in the relationship, and probative worth does not depend on truth content. When one spouse says in a public setting (or one likely to be made public) that her spouse is cruel and selfish, that statement indicates that something has gone sour in the relationship no matter what the declarant actually thinks about her husband's qualities. If Anna thinks that Ira is cruel and selfish and says so, that fact provides a strong clue that (from Anna's perspective) something has gone wrong in the relationship. If Anna thinks that Ira is kind and selfless but goes about saying that he is cruel and selfish, this fact too provides a strong clue that (from her perspective) something has gone wrong in the relationship. In short, her disclosure has probative worth simply because she said it; it is behavior raising doubt about the closeness of the relationship, and probative worth is independent of truth content.

  • The actual decision stated:
    • Such declarations are evidence of the decedent's state of mind and are probative of a disposition on the part of the declarant which has a very vital bearing upon the reasonable expectancy, or lack of it, of future assistance or support if life continues. This expectancy, disappointed by death, is the basis of recovery . . . and is the measure of pecuniary loss for which the jury must award fair and just compensation. No testimonial effect need be given to the declaration, but the fact that such a declaration was made by the decedent, whether true or false, is compelling evidence of her feelings toward, and relations to, her husband. As such is it not excluded under the hearsay rule but is admissible as a verbal act.
    • Loetsch v. New York City Omnibus Corp., 52 N.E.2d 448, at 449 (N.Y. 1943).

Problem 3-I: "A Papier-Mache Man": Circumstantial Evidence of Memory or Belief

As I mentioned in class, there are two important statements in this case, only one of which raises hearsay problems. Nevertheless, the admissibility of the child's statements is conditional, it must be supported by direct testimony of what the defendant's room looked like.
  • [Testimony 1] One takes the form of an account by Officer Stalwart of the description which Sharon gave of the room to which she said she was taken by the man who assaulted her:
  • [Testimony 2] The other proof takes the form of a testimonial account by Officer Yeoman, who made the arrest, describing the room in which Zinder resides. Yeoman's account is independent of that given by Stalwart. That is, Yeoman was not in the courtroom while Stalwart testified; he had not talked to Sharon about the room; he described what he saw with his own eyes.

  • [Relevance] These proofs seem persuasive evidence that Zinder was the culprit because the descriptions given by Sharon and Yeoman are alike in all essential details, including especially the description of the papier-mache man.

    • MALAVET:
      • In other words, the child's testimony becomes relevant (FRE 401) and reliable and fair (FRE 403) because her description, given to police officer Stalwart and relayed by him at the trial, is similar to the actual appearance of the room, as described by Officer Yeoman, based on her personal observations of the room at the time of defendant's arrest. Yeoman's testimony does not raise any hearsay problems. She simply testifies to what she observed. But her testimony is essential foundation to make the child's testimony relevant, and to have probative value that is not outweighed by the danger of unfair prejudice. Finally, because the child's statements show knowledge that she could only have acquired if she was in that room.
  • Authors Answers with my Comments:

    • MALAVET:
      • This is a great example of Conditional Admissibility [FRE 04(b)]: (1) If the actual appearance of the defendant's room can be established by direct testimonial evidence (in this case the other Police Officer Yeoman's testimony); (2) THEN the young girl's statements to the officers indicating what she believed the room to look like can be used not to prove what the room looked like, but rather to prove that she believed that the room looked thus because she had been there.

  • In the prosecution of Zinder, the words of Sharon (there was "a papier mache man" in the room) may fairly be viewed as nonhearsay circumstantial evidence of memory or belief, at least if we assume (or the prosecutor demonstrates) that she had no connection with the room unless she was taken there at the time of the assault.

  • The critical elements in this logic are that (a) the statement describe something which is unique, or at least so rare that it is implausible to attribute the description to invention, (b) we have other proof of the existence of this unique or rare matter, and (c) the only plausible explanation of the statement is the experience it reflects.

    • [Review] The Warning that Sharon's account of the room includes the words "I think." If we view her statement as nonhearsay circumstantial evidence of state of mind, the reason is not that on its face her statement amounts to a naked factual assertion, offered to prove what she carries in her memory. She told us what she carries in her memory, even if she did not say "I think."
    • The actual case: Bridges v. State, 19 N.W.2d 529, 532-535 (Wis. 1945).

  • It is true that testimony as to such statements was hearsay and, as such, inadmissible if the purpose for which it was received had been to establish thereby that there were in fact the stated articles in the room, or that they were located as stated, or that the exterior features or surroundings of the house were as Sharon stated. That, however, was not in this case the purpose for which the evidence as to those statements was admitted. It was admissible in so far as the fact that she had made the statements can be deemed to tend to show that at the time those statements were made -- which was a month prior to the subsequent discovery of the room and house at 125 East Johnson Street -- she had knowledge as to articles and descriptive features which, as was proved by other evidence, were in fact in or about that room and house. If in relation thereto Sharon made the statements as to which the officers and her mother testified, then those statements, although they were extra judicial utterances, constituted at least circumstantial evidence that she then had such knowledge; and that such state of mind on her part was acquired by reason of her having been in that room and house prior to making the statements.
    • Malavet: Note that this exception is clearly acceptable under the Federal Rules, but, as under the common law, only to show state of mind, not to prove the truth of the matter asserted.
FRE 803(3) Then existing mental, emotional, or physical condition.

The following are not excluded by the rule against hearsay, regardless of whether the declarant is available as a witness:

(3)  Then-Existing Mental, Emotional, or Physical Condition. 
[a] A statement of the declarant’s then-existing state of mind (such as motive, intent, or plan) or emotional, sensory, or physical condition (such as mental feeling, pain, or bodily health),
[b] but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the validity or terms of the declarant’s will.

The Warning: By the Casebook Authors

Short version, edited:

  • The declarant intends to express or communicate what he thinks or intends on the subject at hand. [Therefore:] Every statement (almost every) should be read as including phrases such as "I know" or "I think" or "I believe," or (where appropriate) "I expect" or "I intend" or "I hope." ***

Long, unedited:

  • Every statement (almost every) should be read as including phrases such as "I know" or "I think" or "I believe," or (where appropriate) "I expect" or "I intend" or "I hope." A speaker who says "the robber wore a mask" has told us he "thinks" the robber wore a mask; one who says "I'm going to Chicago tomorrow" has said he "intends" or "expects" to go to Chicago tomorrow. Failing to read a statement as including these elements means ignoring the way people communicate. It means interpreting words as if they were elements in an equation or terms in a contract -- they bear closer resemblance to brushstrokes on a canvas. For most people most of the time, language is a loose medium of communication which the declarant cannot tightly control (trained lawyers doing contracts have trouble on this score). Failing to read a statement as including such elements would make the hearsay doctrine silly and capricious, distorting its meaning and purpose. Words like "I think" or "I intend" may go unspoken, but they are implied nonetheless, in the full sense of that term: The declarant intends to express or communicate what he thinks or intends on the subject at hand.

3.5. Defining Hearsay (cont.): FRE 801(a),(b)&(c)

  • 3. What About Prior Statements by Testifying Witnesses
  • [CB] But scholars came increasingly to the conclusion that at least some prior statements by persons who testify at trial under oath, with demeanor visible to the trier of fact, and (most important) subject to cross-examination should not be excludable as hearsay. [FRE 801(d)(1)(A)]

    But the rules adopt a partial approach. 801(d)(1)(A) allows admission to prove the truth of the matter asserted but only if the inconsistent statement was given under oath at a hearing or in a deposition. Nevertheless, FRE 607, 611(b), and 613 make it clear that any statement can be used for impeachment.

C. HEARSAY UNDER RULE 801(a),(b)&(c)

  • Summary: Four Approaches to Hearsay:
    1. Tradition [d]
    2. Hearsay as uncross-examinable statement [d]
    3. Hearsay as a rule of preference [d]
    4. Hearsay as a cautionary principle [d]
  • Malavet:
    • Note that the Federal Rules generally adopt the Traditional view, but, because of legislative intervention, specific rules reflect different theories and priorities.
  • Approach of FRE 801. Looking only to FRE 801 (a)-(c), we have a clear adoption of the traditional approach. This basic definition embraces the three statements we encountered in Problem 3-A (Three See a Robbery) all of which are hearsay under FRE 801 if offered to prove that Higgins robbed the bank.
  • Looking at the whole of FRE 801, we find that the traditional approach is augmented by elements borrowed from the second approach described above, and we find a new complication. Consistent with the second approach, FRE 801 (d)(1) says some out-of-court statements by testifying witnesses that would be hearsay if we looked only to FRE 801 (a)-(c) are "not hearsay" after all If the declarant testifies and submits to cross-examination on any statement that fits FRE 801 (d)(1)(A), (B), or (C), then that statement is "not hearsay."

  • Statutory Magic:
    • Out of the "hat" of the basic definition, the drafters pull the "rabbit" of "not hearsay" since the defining language transforms what would be hearsay into "not hearsay." This same statutory magic is also visible in FRE 801(d)(2), which codifies the admissions doctrine The various statements described in all five clauses of that provision (A through E) are "not hearsay" only because FRE 801(d)(2) defines them in that way. This extension of the statutory magic is not so odd, however, because it connects with common law tradition, where admissions were sometimes seen as nonhearsay and sometimes as hearsay but within an exception that made them admissible. [Non-Truth Uses]

      Nonhearsay uses. It is clear that the uses for out-of-court statements that we explored in Problems 3-C through 3-F ("The Blue Car Ran a Red Light, [3-C]" "Any Way You Like, [3-D] " Whose Corn? [3-E], and "I'm from the Gas Company" [3-F]) lie outside the realm of hearsay under FRE 801. That is to say, these uses lie beyond reach of the defining language contained in FRE 801(a)-(c).
  • Malavet:
    • Note that the authors do no mention Problem 3-G because they admit to not having a handle on how it should be resolved under 801(a)-(c). However, some of it is covered by more specific rules.

      This book uses nonhearsay or not hearsay (without quotation marks) to describe statements lying outside the hearsay category because they are used for something other than proving "the truth of the matter asserted" under FRE 801 (a)-(c), and "nonhearsay" and "not hearsay" (with quotation marks) to describe statements that fall within FRE 801 (d).
  • Malavet:
    • NOT FRE 801(a)-(c): nonhearsay or not hearsay
      FRE 801(d): hearsay exemptions, "nonhearsay" and "not hearsay"
      Other FRE VIII: hearsay exceptions

  • Nonassertive conduct. Statutory prose and legislative history make it about as clear as it can be made that FRE 801 rejects the broad position of Baron Parke in Wright: Under FRE 801, nonassertive conduct offered for the familiar two-step inference-to prove the actor's belief in a fact, hence the fact itself-is not hearsay. The wording supports this conclusion because FRE 801(a)(2) defines "nonverbal conduct of a person" as hearsay only "if it is intended by him as an assertion."

D. Hearsay and Nonhearsay--Borderland of the Doctrine

  • Neither the language of FRE 801 nor post-Rules decisions provide clear guidance for these indirect-use cases. In fairness, we should add that something in the nature of hearsay and human verbal expression makes such cases problematic. There is room to doubt that any brief statutory phrase can provide much guidance.
  • We should now look again at the ACN to FRE 801. Right after the passage about "nonverbal conduct," the Note adds:
  • [V]erbal conduct which is assertive but offered as a basis for inferring something other than the matter asserted [is] also excluded from the definition of hearsay by the language of subdivision (c).
  • [Verbal Act] 

Case: United States v. Singer

  • [CB] The district court admitted into evidence an envelope addressed to Sazenski and "Carlos Almaden," 600 Wilshire, containing notice to terminate their tenancy. It was introduced to show that "Carlos Almaden" lived with Sazenski. We reject Sazenski's contention that this letter was hearsay.
  • [CB] FRE 801(c) states: " '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." The Advisory Committee for the proposed Rules of Evidence noted that " [t]he effect of the definition of 'statement' is to exclude from the operation of the hearsay rule all evidence of conduct, verbal or nonverbal, not intended as an assertion ....

  • [CB, end of the paragraph] If this letter were submitted to assert the implied truth of its written contents-that Carlos Almaden lived at 600 Wilshire -it would be hearsay and inadmissible. It is, however, admissible nonhearsay because its purpose is to imply from the landlord's behavior -his mailing a letter to Carlos Almaden, 600 Wilshire- that "Almaden" lived there. In addition, it is important that the letter was found in the residence at 600 Wilshire....

Problem 3-J: "My Husband is In Denver":

  • Authors' Answers, with my comments.
  • Her statement appears to have been a deliberate lie: The government argues that it indicates that she was trying to create a false alibi exonerating him for the crime and covering up his present whereabouts, indicating that she knows that he is wanted for a crime, hence that he is involved. The proof is only circumstantial: Nobody could be convicted on such proof alone, and there may be innocent explanations for what Barbara said.
  • Malavet:
    • Although I certainly think that this is not the only hypothesis, the resolution of the problem assumes that she was lying, or at least that this is a reasonable inference.

  • 1. Mechanical or "Duck Soup" Argument. Offering a statement along with proof that it is false is not hearsay because the purpose is not to prove the truth of the matter asserted. Far from trying to prove Greg was in Denver when Barbara spoke (or even that she thought he was in Denver), the prosecutor is trying to prove that he was not in Denver and that Barbara knew as much (her knowledge of his actual whereabouts being a point that one might infer from circumstances or from the spousal relationship -- one spouse usually knows where the other is). The Supreme Court in Anderson (note 2 [CB]) seems to have adopted this [simple] argument.
  • 2. Statement as Conduct. When Barbara told Agents that Greg was in Denver, she was trying to do something. Just as the landlord in Singer sent the eviction notice to get rid of Almaden (rather than talk about it), Barbara is lying to the police in an effort to throw them off the scent, to get them to stop suspecting her husband.

    [Note 3 at CB Explains the Crime]
  • 3. In Problem 3-J, Barbara committed a criminal offense if she deliberately lied to the FBI about where her husband was, didn't she? See 18 U.S.C. §1001 (one who "knowingly and willfully falsifies, conceals or covers up" a material fact or "makes any false, fictitious or fraudulent statements" on matters within the jurisdiction of the government is guilty of a felony).

  • Note that this raises possible spousal privilege questions, but the privilege would allow her not to say anything about her husband's whereabouts, it would not protect her lying to hide him.
  • Malavet:
    • See Fla. Code of Evidence § 90.504:

      Fla. Stat. 90.504 Husband-wife privilege.
    • (1) A spouse has a privilege during and after the marital relationship to refuse to disclose, and to prevent another from disclosing, communications which were intended to be made in confidence between the spouses while they were husband and wife.

    • Hearsay Risks: Contribute to a FRE 403 argument. The authors discuss the hearsay risks, which, as was discussed in class, contribute to a nice 403 argument.
  • At least three hearsay risks are present here: Barbara may have misspoken, intending to say only that Greg had been or would be going to Denver (narration); she may have forgotten, wrongly believing he had gone (memory); she may have misunderstood the arrangement (misperception). The fourth risk (candor) presents itself in a peculiar form: Usually the concern is that the trier will be misled if declarant was lying; here it will be misled if she was telling the truth. If Barbara believed Greg was in Denver, her innocent mistake would not prove coverup, and the jury (thinking she lied) might draw the wrong inference.

    • Malavet:
      • The authors go on to explain the theory of the Assertive Acts/Conduct doctrine, as applied to cover-ups, which came up late in the class:

        Nonassertive conduct (proving actor's belief in a fact, hence the fact) is beyond reach of the hearsay doctrine not because hearsay risks are absent (we acknowledge their presence), but because the behavioral or performative aspect takes us far from reliance on words as assertions, and often makes the inference persuasive. A coverup that looks like a crime seems far from hearsay concerns (even though wholly verbal), and Barbara's risktaking suggests a strong (albeit vague and unformulated) inference that Greg has done something wrong.

      • I realize that you find it troubling both in this case and in Pacelli below that we are inferring that the acts or assertive conduct were being taken in the assumption that the defendant was indeed guilty, but that is the Evidential Hypothesis under which admissibility would be predicated. The fact that we call it conduct seems to change the reliability analysis.

      • In simple terms under the rules, if it is an act, it is non-assertive conduct, thus NOT HEARSAY under 801(a)(2). Therefore, we can use it to prove any inference we want.
      • The good arguments about co-conspirator statements (if there was a conspiracy to engage in a coverup) were interesting, so cross-reference this for our 801(d)(2)(E) analysis. Note that the conspiracy to rob the bank had ended, so that would not provide a basis to apply the rule.

Problem 3-K: King Air YC-437-CP

  • Malavet:
    • After class, one student asked the perfectly good question why the prosecution would object to the friend's testimony in this case, rather than use it to argue that defendant was an idiot who was in fact boasting of possessing stolen property. My GUESS is that this would occur if the prosecution felt that either their case against this defendant was weak, or that his theory of defense was being well-received by the jury. These are subjective judgments that trial lawyers must make all the time, so the question was a good one.
  • The Authors explain:
    • it is not hearsay. The reason is that the statement is not offered to prove what Bruno knew, but what he was willing to tell others that he knew. Probative worth depends not on its assertive aspect (proving he was storing the plane, or knew about it), but on the fact that Bruno told others what he knew (note 2 after the Problem).

      What the court actually did. The problem rests on United States v. Webster, 750 F.2d 307, 330-331 (5th Cir. 1984), where the court agreed that the statement was not hearsay because it was not offered to prove the airplane was stored on the property: "[I]t was offered to support an inference of innocence; a man with guilty knowledge is not likely to advertise his possession of stolen property."

  • Malavet:
    • Note 1 at pages 144-145 is a good cautionary tale not to allow the exception to swallow the rule. The Drafters were clearly worried about proving the truth of the matter asserted when admitting statements that show mental impressions, by expressly limiting their admissibility. Note that this does indeed raise FRE 403 problems.

      Remember also to create a cross-reference here for prior consistent statements under FRE 801(d)(1)(B).

3.6. Defining Hearsay: The "Expansive" View

Case: Pacelli

  • [CB] Appellant next urges that it was prejudicial error on the part of the trial court to have permitted Lipsky, over defense objections, to testify as to the conduct and statements of appellant's wife, Beverly, of his uncle, Frank Bassi, and of his friends Perez and Bracer on February 10, 1972, at the Bassis' apartment. We agree. Since the conspiracy to violate Parks' civil rights had terminated with her death, this proof was not admissible as declarations of a co-conspirator made in the course of a conspiracy or as evidence of acts designed to show illegal activity On the part of the conspirators themselves. [FRE 801(d)(2)(E)] The purpose of the evidence was to get before the jury the fact that various persons other than Lipsky, who had been closely associated with Pacelli, believed Pacelli to be guilty of having murdered Parks.
  • [CB]. . . The admission of testimony as to the third party's declarations in the present case violated the central purpose of the hearsay rule, which is to give litigants "an opportunity to cross-examine the persons on whom the fact finder is asked to rely." Finman, Implied Assertions as Hearsay: Some Criticisms of the Uniform Rules of Evidence, 14 Stan. L. Rev. 682, 684 (1962). We cannot agree that the only source of the extrajudicial declarations and conduct could have been Pacelli himself. Cross-examination of the declarants, had they been produced as witnesses, might have established that the information came from Lipsky himself, from third persons, or from news media, especially since appellant had on the same day been jailed as a result of the discovery of Parks' body.

  • [CB-146, middle of the paragraph] The government concedes that if Lipsky had testified that the various declarants (Beverly Jalaba, the Bassis, Perez and Bracer) had told him at the February 10th meeting that Pacelli had admitted to them his participation in the killing of Parks, the testimony would have been inadmissible hearsay.
  • Malavet:
    • [FRE 801(d)(2)] [FRE 803(3)] Cross-reference these rules here. The necessary implication here is that we have hearsay within hearsay, i.e., what Pacelli told Jalaba according to Lipsky, who was not a party to the Pacelli-Jalaba conversation. 

Alternatives in Pacelli:
Hearsay: Statements and Assertive Conduct.

  • Here the court appears to take the statements and the assertive conduct to BOTH state and to be offered to prove the guilt of the defendant. This seems a bit of a leap, since we are inferring their assumption, and then inferring that they intended to make a statement about their belief. Nevertheless, it IS consistent with the extreme view of Wright which makes the definition of hearsay very broad.
  • BUT, the Wright definition is NOT the one adopted by 801(a),(b),(c), as is explained in the readings [see cites above]. Unfortunately, the old cases do not distinguish well between the definition of hearsay and the fairness analysis. Therefore, you have to be careful: under the rules, whether or not the matter is hearsay is a more technical question under FRE 801 and the exemptions and exceptions. The fairness analysis would now more properly be made under FRE 403.

  • Alternatives:

    • Hearsay: 
      Statements and Assertive Conduct necessarily imply "Pacelli did it." [Discussion]
    • Non-hearsay: 
      Statements and Conduct were in fact Non-Assertive Acts undertaken in the belief that Pacelli was guilty, and are offered as circumstantial evidence of guilt. [Discussion]
  • My personal preference for this case under the rules is this:
    • Pacelli Under the Rules:
    • (1) FRE 401: The relevance of the statements is that they are offered for the inference that Pacelli is guilty, i.e., the speakers assumed him to be guilty because he told them he was guilty.
    • (2) FRE 403: Postponed until after 801.
    • (3) FRE 801(a): The statements and assertions were intended to be statements, thus the former fit under 801(a)(1) and the latter under 801(a)(2).
    • (4) FRE 801(b): The statements were made by persons.
    • (5) FRE 801(c): The statements are NOT being offered to prove the truth of the matter asserted,

      • (a) because they do not state that Pacelli is guilty, they infer that he is guilty and the rule does not adopt the inference view; or
      • (b) because they are verbal acts constituting obstruction.
    • (6) Since they are not hearsay, 803(3) is not needed, but note that for the same reason they probably do not fit within the 803(3) exception.
      • "PACELLI DID IT" argument:
      • ---NOTE that the counter- argument is that this is performative conduct intended to assert that they believe defendant to be guilty (see Note 2 and the discussion of Reynolds, at page 148), thus bringing it within hearsay and then arguably under 803(3). -
      • ---Another argument is that this entire scene asserts that the defendant confessed to the participants in the meeting, which creates even more serious hearsay dangers and possible prejudice for the defendant. This scenario is analogous to Check, with the meeting participants being in Cali's position as relaying what the defendant said to them.
    • (7) FRE 403: I would still exclude them, unless it can be better established that Pacelli was the source of their belief, or that their belief is otherwise reliable.
  • POSSIBLE other exception [needed only if you find that the statements ARE hearsay]:
    • you can argue that the statements are offered to prove mental impressions based on knowledge acquired from Pacelli regarding the crime (803(3)), but they would not be admissible to prove the truth of the matter asserted.
    • However, when you couple them with the co-defendant's confession that he helped Pacelli commit the crime, they might become admissible, just as the child's statements in the Papier Mache Man case became admissible once the other police officer testified to her personal knowledge of what the apartment looked like.
    • Note that the facts of this case do not fit neatly into the 803(3) exception because no-one actually said that the thought Pacelli did it.
    • Therefore, for the same reason that I would conclude that they do not fit within the definition of hearsay under 801(a),(b),(c), I would likewise conclude that they do not fit within the 803(3) exception, but, of course, that is moot if you don't all them hearsay.

    • Personally, I would exclude the evidence under FRE 403 unless the basis of their knowledge can be more clearly established to be only Pacelli himself. But, once you get beyond the hearsay objection, whatever the judge does will generally be upheld under the Federal Rules.

  • Non-hearsay: Statements and Conduct were in fact Non-Assertive Acts/Conduct.
    • Again, in simple terms under the rules, if it is an act, it is non-assertive conduct, thus NOT HEARSAY under 801(a)(2). Therefore, we can use it to prove any inference we want. But the Pacelli court did not buy that prosecutorial argument.
    • Also, if we can prove that they committed a crime in engaging in the cover-up, then they clearly become Verbal Acts and would be admissible, just as in the "My husband is in Denver" problem. Accordingly, they would be admissible to prove something other than the truth of the matter asserted for 801(c) purposes.

OLD Problem 3-M, in the notes:
"I didn't tell them anything about you"

  • Authors' Answers with my comments:

  • [If it IS hearsay]
    • On balance, we think probably the better outcome is to call the statement hearsay, and to treat the performative aspect of the statement as marginally relevant and potentially confusing and misleading.
    • Examples of Hearsay treatment:
    • In Krulewitch [also discussed in the second note 3 at pages 145-146], the woman said in substance "it would be better if we took the wrap than Kay because he couldn't stand it" and in Evans the man said "if it hadn't been for that son-of-a-bitch Alex Evans we wouldn't be in this now," and the Court considered both those statements hearsay when offered to implicate the person mentioned.
    • The words in the present case are remarkably similar.
      • Malavet:
        • If you are going to call this hearsay, and if you are aware that inferences are not included in the 801(c) definition of hearsay as per the ACN (CB-165), then the only principled thing to say is that the performative aspect of the statement was intended to assert the implication of Parry guilt, thus fitting within the definition of "statement" of 801(a) and we then deem it to be offered to prove the truth of the matter that was performatively/assumptively stated.
  • [It is NOT hearsay]
    • For nonhearsay treatment. If words always have assertive aspects, this case and Weeks are some indication that essentially words always have performative aspects too.
    • Surely these do: They are a gesture of solidarity; they offer an assurance of loyalty; they can easily be understood to offer a bargain -- "if you won't tell on me, I won't tell on you; I've demonstrated my good faith; now it's your turn." Understood this way, Riggs is not just talking, he's doing something. He's trying to cement a joint strategy and establish an approach to the problem of arrest and prosecution.
    • It is plausible to say that these performative aspects justify treating the utterance in the same way we treat nonassertive conduct, meaning it is nonhearsay when offered for the two-step inference: His gesture or offer indicates his belief in the guilt of both, which in turn suggests both are guilty.
    • The fact that Riggs feels the need to do this is some indication that the two really are in trouble -- that they really did something (presumably the crimes for which they were arrested). And arguably the fact of speaking in this vein is what makes the relevant point. In this sense, the problem is like Problem 3-K (King Air YC-437-CP) (page 144), except here the fact of trying to strike a bargain with a colleague indicates guilt (Bruno's willingness to display knowledge indicated innocence).
    • On balance, the difficulty with this argument is that it is pretty speculative, for it is at least possible that the two are not guilty and are simply reacting to the trouble they face, and a court might well reject this construction of what happened by excluding the evidence under FRE 403.
    I would say that it is not hearsay and that it should be excluded under 403. Under the Federal Rules of Evidence, the inference approach has been expressly rejected and it strikes me as absurd to undermine that simply because we are troubled by the inference. The real problem is the unwillingness of courts to use 403 to exclude evidence, especially in criminal trials, and to attempt to hide behind labored readings of the rules.
  • The Case: U.S. v Reynolds:
    • The problem rests on the Reynolds case, ... There the court thought the statement was hearsay. Commenting that "statements containing express assertions may also contain implied assertions qualifying as hearsay and susceptible to hearsay objections," the court thought that the statement here fit this category:
    • [The statement's] only relevance to the government's case is tied to an assumed fact of petitioner's guilt that the government argues the utterance proves. Thus, depending on the interpretation given the content of Reynolds' statement, it is either probative or not. Consequently, we believe that, as the government uses it, the statement's relevance goes well beyond the fact that it was uttered. It is not merely intended to prove that Reynolds could speak, or that he could speak in English, or even that he directed a statement toward Parran. Instead, the government offers it to prove the truth of the assumed fact of defendant's guilt implied by its content.
      United States v. Reynolds, 715 F.2d 99, 103 (3d Cir. 1983).
I summarized:

Implied Assertions (hearsay) or Inferences (not hearsay).
In calling this hearsay, the court is in effect calling this the opposite of a verbal act, which I would describe as "performative conduct" intended to assert the implication (yes I realize this IS strange, but this is the way to fit it into the rule). We should read "I didn't tell them anything about you" to read "I didn't tell them anything about you committing this crime with me."

3.7 E. Hearsay: Test Your Understanding

Case: Betts

  • [CB] The foster mother saw an item in the paper relative to the remarriage of the child's mother and with reference to it, testified as follows:
    A. So I told her that her mama and Mr. Ray Caporale had got married, and she started crying. She said: --she ran and put her arms around me and her head in my lap and started crying real bad and hard and said, "He killed my brother and he'll kill my mommie too,"-- and she doesn't seem to ever get that out of her mind.
  • [And she said much more]
  • [CB] We hold that use of this testimony does not violate the hearsay evidence rule.
  • [CB] The statements of the child were not admitted to prove the truth of the assertions she made, but merely to indirectly and inferentially show the mental state of the child at the time of the child custody proceedings. [FRE 803(3)] [FRE 801(a)] [Inferences under FRE] [Implications/Assumptions] [Consistent with the Rules]
  • Malavet: My Summary of the Categories:
    • Wright: Inferences ARE hearsay, rejected by FRE 801(c).
    • FRE 801(c): Inferences are NOT hearsay
    • FRE 801(a)(2): Implications/assumptions are "stated" if intentionally (?) implied by assertive conduct (which may be a combination of statements and conduct).
      • Betts is consistent with the FRE 801(c) treatment of inferences.
      • Problem 3-M and the Reynolds case is consistent with the implications vision of 801(a)(2).

  • Malavet: Relevance (Which one(s) did the Court select?)
    • (1) It is an event that might affect her relationship with Ray; [Trial Court]
    • (2) it suggests that she does not like Ray; [Appeals Court], and
    • (3) it suggests that Ray behaved in ways that make him unfit as a parent (killing brother James!).
  • [CB] It should be pointed out that there is a distinction between non-hearsay statements which circumstantially indicate a present state of mind regardless of their truth, and hearsay statements which indicate a state of mind because of their truth. The state of mind must be relevant in either instance. [Pacelli]
  • [CB] An obvious example of an out-of-court non-hearsay statement which circumstantially indicates a state of mind regardless of the truth of the statement would be "I am Napoleon Bonaparte." This would be relevant in a sanity hearing. [Naturally, assuming the impossibility of time-travel, reincarnation and genetic reconstruction].
  • [CB] However, we are not considering the testimony of the 5-year-old child as an exception to the hearsay rule, but as a non-hearsay statement which circumstantially indicates the state of the child's mind regardless of the truth of the statement.
We will come back to this point, but the casebook authors criticize this aspect of the opinion. They argue that capacity should apply to all statements, regardless of the basis for admission. Nevertheless, the child's statements were used only to prove that the child was afraid of her mother's new husband. Note also that if you had called the statement hearsay but admitted it under FRE 803(3), it would likewise only become admissible to prove that the child was afraid . Conversely, some might argue that if it comes in as not hearsay, it may be used in different ways. We will also come back to this issue later.

3.8 Hearsay Quiz

Time-permitting, I will cover a about five or six of these in class. But the quiz is really intended as a self-test, and I strongly recommend that you use it in that manner.

Your casebook authors have crafted an extensive hearsay quiz. I suggest that you try to answer all questions in the quiz, some under timed and some under un-timed conditions. After you answer the questions, grade yourself using the authors' answers. [Click Here for Answers].