How Do I Simplify My Next Hearsay Analysis? True or False?

Vol. 16 No. 9

By

Jade K. Smarda is an associate with Faruki Ireland & Cox, P.L.L. in Dayton, OH.

The title of this article is illogical. The question “How do I simplify my next hearsay analysis?” can be proven neither true nor false. Likewise, the title of this article would be equally illogical if it were “Tell me how to simplify a hearsay analysis. True or false?” This is because the command—“Tell me how to simplify a hearsay analysis”—is not an assertion of fact. To ask whether it is true or false would be nonsensical.

Nonsensical title or not, why does it matter if a question or command is capable of being proven true or false? It matters from an evidentiary standpoint because there is a well-established but little-known rule that questions and commands generally fall outside of the definition of hearsay. Most likely, your jurisdiction’s definition of hearsay mirrors the federal definition and identifies hearsay as an out-of-court statement “offered in evidence to prove the truth of the matter asserted.” Because questions and commands generally fall outside of this definition, they are routinely admitted into evidence at trial. For example, if you have ever submitted a check into evidence, then you have offered a command, because the instrument conveys instructions or orders to a financial institution.

Regardless, why exactly do out-of-court instructions or orders, offered in the form of a check, escape the definition of hearsay? Courts overwhelmingly deem commands such as checks and questions to be non-hearsay because they generally do not “assert a proposition that could be true or false.” Thus, as a general rule, they cannot be offered for their truth, as is required to meet the definition of hearsay. Indeed, a court that admits a check over a hearsay objection likely does so because such an instruction is, by its nature, neither true nor false and cannot be offered for its truth. Similarly, a question is typically not hearsay because it does not assert the truth or falsity of a fact.

Of course, the fact that evidence constitutes a question or command does not render it immune from exclusion as hearsay. A court might, for example, exclude as hearsay a question or command if it is convinced that the question or command is “code” for, or intended as, an assertion. Furthermore, a question or command that implies an assumption of fact (e.g., “How about the drawer where I put everything?”) could possibly be deemed an assertion and, consequently, inadmissible hearsay.

Ultimately, the general rule excluding questions and commands from the definition of hearsay serves as a helpful reminder about simplifying the typical hearsay analysis (and renders the title of this article somewhat logical after all). The next time you are confronted with an objection or motion in limine seeking to exclude purported hearsay, ask yourself whether the subject of the objection or motion is even capable of being proven true or false. Arguing that speech is incapable of being offered for the truth of the matter is often more convincing than arguing that it is not being offered for the truth of the matter. Additionally, developing such a simple primary argument allows you to reserve the sometimes more complicated analyses, usually based on the extremely nuanced hearsay exceptions, as your alternative arguments.

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