Hearsay or non-hearsay? That is the question. But how do you identify statements that are potentially hearsay? On a local list serve experienced trial attorneys debated whether a “command” from a doctor to a patient was hearsay or not. Surprisingly, the opinions on this issue were pretty evenly split even though the answer was clear that a “command” is not hearsay. I looked and was surprised that I couldn’t find a clear explanation of the concept from any decision in my state. I knew that a “command” just like a “question” or a “greeting” cannot be hearsay because it is not a statement of fact. It cannot be true or false any more than the statements: “Hi. How are you doing? Can you get me a cup of coffee.” If it cannot be judged to be either “true” or “false”, then it can’t be hearsay because it cannot be offered for the “truth of the matter asserted.” Federal Rule of Evidence 801 is where we want to start. It provides a few key definitions that describe “hearsay”:
(a) Statement. “Statement” means a person’s oral assertion, written assertion, or nonverbal conduct, if the person intended it as an assertion.
(b) Declarant. “Declarant” means the person who made the statement.
(c) Hearsay. “Hearsay” means a statement that:
(1) the declarant does not make while testifying at the current trial or hearing; and
(2) a party offers in evidence to prove the truth of the matter asserted in the statement.
After a little research, I finally came across a case that explained the distinction pretty well, Stoddard v. Maryland, 157 Md. App. 247, 850 A.2d 406 (Md. App. 2004). There the court explained:
The ABC’s of Hearsay As a Point of Analytic Departure
To a student first embarking on Evidence 101, the key to understanding hearsay is, long before venturing into the thicket of the hearsay exceptions, to develop a sure “feel” for the difference between those utterances that are hearsay and those that are not. One must be able to negotiate the territory that McCormick called “the borderland of hearsay.”6 It is not enough to know that a challenged statement is admissible. That can be a
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lucky guess. Is it admissible because the hearsay rule is satisfied?, or is it admissible because the hearsay rule is inapplicable?
The classic classroom teaser posits a witness who testifies that he spoke by telephone with his brother in London, who said, “It is raining in London.” To the professor’s query as to whether that brotherly utterance is hearsay, the only intelligent answer is “I don’t have the foggiest.” It depends on the purpose for which the statement is offered. If it is offered to prove that at a given time it was raining in London, it is, of course, hearsay. If it is offered to prove that at a given time the brother was alive and able to speak, it is, with equal certainty, non-hearsay. The first purpose needs the brother to be shown to be trustworthy. The second purpose is indifferent to trustworthiness, and the hearsay rule is only designed to guarantee trustworthiness.
In Ali v. State, 314 Md. 295, 304, 550 A.2d 925 (1988), Judge McAuliffe gave a classic common law definition of hearsay.
Hearsay is generally 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. Thus, when a statement is offered for some purpose other than to prove the truth of the matter asserted therein, it is not hearsay.
See also Burgess v. State, 89 Md.App. 522, 537 n. 12, 598 A.2d 830 (1991).
The Maryland Rules of Evidence, § 5-801(c), promulgated six years after Ali v. State, defined “hearsay” in almost verbatim terms.
“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.
Federal Rule of Evidence 801(c), from which the Maryland Rule is derived, is absolutely verbatim with the Maryland definition.
At the most basic level, under both the common law and the new Federal and Maryland Rules, a hearsay statement consisted routinely of the speaking of a declarative sentence in the indicative mood, which sentence stated the very fact which the proponent of the statement sought to prove by its use. Early on, however, it was recognized that a hearsay statement could be a writing of an assertion as well as a speaking of it. It was also universally recognized, virtually ab origine, that a hearsay statement could consist of a non-verbal action if the action were intended by the actor to be an assertion. The pointing of a finger at Suspect # 4 is just as assertive as are the words, “The man who robbed me is Suspect # 4.” Just as surely assertive, in response to a question, is a vertical shaking of the head (“Yes”), a horizontal shaking of the head (“No”), or a shrug of the shoulders (“I don’t know”).7
Reflecting that common law understanding of a hearsay “statement” is Maryland Rule 5-801(a).
A “statement” is (1) an oral or written assertion or (2) nonverbal conduct of a
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person, if it is intended by the person as an assertion.
Federal Rule of Evidence 801(a), from which the Maryland Rule derives, is absolutely verbatim. To complete the three intertwined definitions that go into the collective definition of “hearsay,” both Maryland Rule 5-801(b) and Federal Rule of Evidence 801(b) define “declarant.”
A “declarant” is a person who makes a statement.
With the earlier, and essentially indistinguishable, common law counterparts of such definitions, the law of evidence had clean-cut paradigms of hearsay and of non-hearsay, and there was a well-marked boundary between them. The hearsay rule, without disruptive aberrations, was “ship shape and Bristol fashion.” Then Admiral Tatham elected to challenge his cousin’s will, and, even as we write, we are still being assailed by the consequences of that caveat.
At the most basic level (pre-1838 and post-1994), little Jasmine’s question to her mother, “Is Erik going to get me?” clearly would not fit the hearsay mold. In Holland v. State, 122 Md.App. at 543-44, 713 A.2d 364, we discussed the ordinarily tell-tale grammatical and syntactical characteristics of a hearsay statement.
To qualify as hearsay, the words recounted in court must, for starters,constitute an assertion or statement of a fact. Many out-of-court utterances are self-evidently not assertions. If a witness testifies to the out-of-court inquiry, “What time is it?,” that inquiry is obviously not an assertion of anything. For an out-of-court utterance to qualify as an assertion, it generally must be in the indicative or declarative mood, rather than in the interrogative mood, the imperative mood, or the subjunctive mood. An out-of-court assertion of a fact may be true or untrue. For that reason, its admissibility in evidence is problematic if offered to prove that fact. An out-of-court inquiry, “What time is it?” can be, by its very nature, neither true nor untrue and there is, therefore, no such credibility problem. The out-of-court command, “Stop!” can be, by its very nature, neither true nor untrue and there is, therefore, no such credibility problem.
In Burgess v. State, 89 Md.App. at 537-38, 598 A.2d 830, Judge Alpert quoted with approval from D. Binder,Hearsay Handbook 18 (3rd ed. 1991):
Many out-of-court utterances fall within such categories asgreetings, pleasantries, expressions of gratitude, courtesies, questions, offers, instructions, warnings, exclamations, expressions ofjoy, annoyance, or otheremotion, etc. Such utterances are not intended expressions of fact or opinion. They are not assertions, at least for purposes of the hearsay rule.Thus they are not hearsay.
“How are you?”
“Have a nice day.”
“Would you like to have lunch?”
“I hope it doesn’t rain tomorrow.”
“I wonder what he paid for that car.”
“Can you join me for a drink?”
“Don’t do that, or else.”
“Watch your step.”
None of the above utterances is an intended expression of fact or opinion. None is hearsay.
(Emphasis supplied). And see United States v. Oguns, 921 F.2d 442, 448-49 (2d Cir.1990) (an inquiry is not an assertion);United States v. Long, 905 F.2d 1572,
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1579-80 (D.C.Cir.1990) (questions are non-assertive).
To say that little Jasmine’s frightened question to her mother does not fit within the classic paradigm of hearsay, however, is not to say that it might not be embraced by the bloated definition of hearsay spawned by Wright v. Tatham. Indeed, the appellant proposes just that. He posits as an implied assertion the following attenuated inference: 1) From Jasmine’s question we may infer that Jasmine was afraid of Erik; 2) from Jasmine’s fear of Erik we may infer that Erik had done something to generate that fear; 3) from that likely causation, plus the timing, we may finally infer that Erik had assaulted Calen in the presence of Jasmine. The appellant then concludes that such an implied assertion is inadmissible hearsay. This argument requires us to turn our attention to the rise and fall of the implied assertion.
I hope this explanation helps and you are ready to address this issue next time it comes up at trial. Alright now, was the woman who served my cappuccino giving me a cup of coffee? Or was this an implied assertion from conduct offered for the truth of the matter asserted? I’m waiting….