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ARTICLE VIII. HEARSAY

Table of Contents

Article I. General Provisions
Article II. Judicial Notice
Article III. Presumptions
Article IV. Relevancy and Its Limits
Article V. Privileges
Article VI. Witnesses
Article VII. Opinions and Expert Testimony
Article VIII. Hearsay
Rule 801
Rule 801a
Rule 801c
Rule 801d
Rule 801e
Rule 803
Rule 804
Rule 805
Article X. Contents of Writings, Recordings,
and Photographs
Revised Rule 801(a). Definitions Commentary 

Introduction

Under the common law, hearsay was defined as a message taken from out-of-court statements through words or conduct and offered in evidence to prove the truth of the matter expressly or impliedly asserted. The common law hearsay rule excluded statements if their logical relevance depended on the truth of the matter expressed or implied.

Current Rule 801(a) redefines "statement" for the purposes of Article VIII. It requires courts, in a preliminary factual determination, to distinguish between intended and unintended assertions, eliminating the unintended assertions from the definition of "statement." This distinction between intended and unintended assertions was justified in the accompanying Advisory Committee note:

Admittedly [an unintended communication] is untested with respect to the perception, memory, and narration (or their equivalents) of the actor, but the Advisory Committee is of the view that these dangers are minimal in the absence of an intent to assert and do not justify the loss of the evidence on hearsay grounds. No class of evidence is free of the possibility of fabrication, but the likelihood is less with [an unintended communication] than with [an intended communication].

The Project removed the intended/unintended distinction from the definition of statement in Revised Rule 801(a) for the following reasons: 1) the distinction results in the admission of unreliable communications; 2) injecting the declarant's intent into the definition of "statement," and thereby into the definition of "hearsay," unnecessarily complicates the hearsay rule; and 3) the distinction between intended and unintended communications has led to inconsistencies in its application to unintended implications of speech.

1) The distinction admits unreliable communications

Four dangers must be considered when evaluating the testimony of a witness: perception, memory, narration (ambiguity in the witness' description), and sincerity. The Advisory Committee Note to 801(a) focussed on only one of these factors, sincerity, when justifying its elimination of unintended communications from the definition of statement, and thus the definition of hearsay. The Advisory Committee apparently believed that excluding unintended (and therefore sincere) communications on hearsay grounds would result in the unjustified loss of probative evidence; the Advisory Committee concluded that if statements were sincere, the other three dangers would be minimized sufficiently to justify the use of the evidence. There was no explanation, however, of how sincerity and accuracy are necessarily linked. To be sure, an insincere statement will likely be inaccurate, but there is no assurance that a sincere statement will be accurate. The Project rejected the intended/unintended distinction because the focus on sincerity left the remaining dangers of perception, memory and ambiguity in narration unaddressed.

For example, if a driver stopped her car at a traffic light, it is likely that she did not intend to assert anything to anyone through her conduct. The driver's conduct, however, communicates the message that she thought the light was red. Under Current Rule 801(a), her communication would not be considered a "statement" because it was unintended (and apparently sincere). Because the communication is not a "statement," it also is not "hearsay" under Current Rule 801(c), which defines hearsay as "a statement ... offered in evidence to prove the truth of the matter asserted." Therefore, the communication is admissible to prove that the light was red. There is no assurance, however, that this communication was accurate. Consider the following: the driver may have stopped because she was unable to see the light; she may have stopped because she thought she heard a siren or because her car was either malfunctioning or out of gas; and the driver may have stopped to pick up a passenger. It is also possible that the light may have been red when she first stopped, but it changed; even though her communication was initially accurate, changing circumstances made the communication inaccurate. Finally, the driver may have stopped in disregard of the color of the light because she saw converging cars and anticipated the accident that subsequently occurred.

Recognizing the continued presence of the dangers of perception, memory and narration, the Advisory Committee claimed to address the potential deficiencies the dangers represented by relegating them to the question of weight. This solution, however, is problematic. To accept the Advisory Committee's solution, the finder of fact must be provided with sufficient information to evaluate the reliability of the unintended communications. Cross-examination of the witness providing the substantive information is the usual means by which this is accomplished in our adversarial system. As often as not, however, hearsay declarants are not present when their out-of-court communications are offered at trial. Consequently, there is no way, beyond pure speculation, to assess accurately the reliability of their perception, memory, and ambiguity in narration. This is certainly true in the hypothetical of the driver stopping her car at a traffic light. If such speculation is acceptable, it brings into question the underlying rationale for the hearsay rule itself.

The Project concluded that removing unintended communications from the definition of "statement", thereby removing them from the definition of hearsay, because one of the four hearsay dangers may be minimized, creates too great a risk that unreliable evidence will be admitted that cannot be evaluated properly by the finder of facts. In the unusual circumstance where the reliability of an unintended communication can be demonstrated, the Project concluded that its admissibility should be dealt with under the residual exception to the hearsay rule (if it is not admissible under one of the delineated exceptions). Under Revised Rule 801(a), therefore, any communication is classified as a "statement."

2) Injecting the declarant's intent into the definition of "statement," and thereby into the definition of "hearsay," unnecessarily complicates the hearsay rule

Under the common law, a court examined the relevance of a communication; and if relevance was contingent on the truth of the matter previously asserted, the communication was excluded as hearsay unless it fell within a recognized exception. Under Current Rule 801(a), a court must determine the declarant's intent to ascertain whether a communication is a "statement." Because the declarant is often not present when the out-of-court communications are used as evidence, courts must rely on circumstantial evidence of the declarant's intent. This is often an uncertain determination, which, if incorrectly assessed, results in the admission of evidence with all of the problems that have given rise to the hearsay rule.

Surprisingly, Current Rule 801 was designed to place the burden on the opponent of the out-of-court statement to prove that the declarant intended to make an assertion, rather than on the proponent (who usually has better access to the relevant evidence) to prove that the declarant did not intend to make an assertion. The Project concluded that the presumption of an absence of an intent to communicate was both counterintuitive and unfair.

3) The distinction between intended and unintended communications has led to inconsistencies in its application to unintended implications of speech

Current Rule 801(a) requires an intention to assert in order for a communication to be considered a "statement." The Advisory Committee apparently concluded that because the purpose of speech is to communicate, all speech is intended by the declarant as an assertion. The Advisory Committee's Note did not specifically address unintended implications of speech. A declarant may intend to communicate with speech but may not intend to communicate the message that is inferred. If the out-of-court declarant intended to communicate any message to anyone, does that intention make the speech a "statement" under Current Rule 801(a), or does the declarant have to intend the implication before that implication is considered a "statement"? Comments within the Advisory Committee's Note have led to confusion.

Initially, the Advisory Committee suggests that the intended/unintended distinction was designed to apply only to conduct when it states that "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." Reinforcing this conclusion are the following statements: "It can scarcely be doubted that an assertion made in words is intended by the declarant to be an assertion. Hence, verbal assertions readily fall into the category of 'statements.'" Because the Advisory Committee did not explicitly address unintended implications of speech, courts have subsequently focussed on the Advisory Committee's justification for admitting unintended implications of conduct (by excluding it from the definitions of "statement" and "hearsay"), and have used it as a justification for admitting unintended implication of speech as well. This has resulted in inconsistency among the courts.

In United States v. Zenni, the court treated an implied message as an unintended communication; therefore, the communication was not a statement for the purposes of Rule 801(a). In Zenni, government agents answered a telephone while searching the defendant's premises for evidence of bookmaking activity. The callers gave directions for placing bets such as "put $2 to win on Paul Revere in the third at Pimlico." The Government introduced the callers' communications as evidence that the callers believed that they were calling a betting establishment. The court found that the callers did not assert directly that the place was a betting establishment and that the callers did not intend to assert the message inferred from the communication. The court concluded that the unintended assertions did not meet the definition of statement for the purposes of the hearsay rule.

In contrast, United States v. Reynolds concluded that an implied communication, which was clearly unintended, was hearsay. The defendants, Parran and Reynolds, were arrested and charged with conspiracy. In the presence of a postal inspector, Reynolds allegedly said to Parran, "I didn't tell them anything about you." The Government attempted to introduce the communication as evidence of the implied assertion that Parran participated in the conspiracy with Reynolds. Clearly, in the circumstances of the statement (made in the presence of police), the declarant did not intend to assert the inferred inculpatory statement. Therefore, under Zenni, the unintended communication would not be a "statement" under Current Rule 801(a). The Reynolds court, however, interpreted Rule 801(a) differently and excluded the communication as hearsay under Current Rule 801(c). The court explained that legal commentators and courts have expressly recognized that:

Statements containing express assertions may also contain implied assertions qualifying as hearsay and susceptible to hearsay objection. This situation arises when "the matter which the declarant intends to assert is different than the matter to be proved, but the matter asserted, if true, is circumstantial evidence of the matter to be proved. In this situation too, the statement is subject to a hearsay objection."

The Project concluded that the result in Zenni, admitting unintended implications of speech, was an illogical application of the Advisory Committee's justification for admitting unintended implications of conduct. If a declarant intends to communication anything, the danger of insincerity is present. If a declarant is insincere in a direct communication, any communication that results, whether intended or not, will be equally flawed. It was concluded that this inconsistency was best resolved by abolishing the intended/unintended distinction.

Conclusion

Little justification for the intended/unintended communication distinction has been offered beyond the Advisory Committee's ipse dixit that "[hearsay] dangers [of perception, memory, and narration] are minimal in the absence of an intent to assert . . . ." The complexity, inconsistency, uncertainty, and unreliability that the distinction injects into the hearsay equation necessitates its deletion.

Click here to return to Revised Rule 801(a).