Objection! Hearsay. Why the Definition of Hearsay Matters

It is probably the most well known of evidentiary objections.  Trial counsel asks the witness “what happened after the driver left the scene” and the witness says, “the lady across the street yelled out…” Objection! hearsay.  Counsel commonly jump to the exceptions to hearsay to determine how or why they should get the out of court statement in, however, many times one need to look no further than to the definition of hearsay itself.
The other day I was in court and attempted to admit an out of court statement and the court said I couldn’t it was hearsay.  To which I responded, I’m not admitting it for the truth of the matter asserted, I’m admitting it for the affect it had on the listener. The judge didn’t follow my argument and refused the testimony.
Hearsay is defined by Indiana Rules of Evidence as:
(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)       is not  made by the declarant while testifying at the trial or hearing; and
(2)      is offered in evidence to prove the truth of the matter asserted.
When breaking down the definition of hearsay there are lots of parts of it that keep many statements admissible.  First, is the requirement that the statement be an assertion.  This is tricky, because even implied assertions are still hearsay, whether verbal or non-verbal.  However, if a witness is asked could you tell if the boy was cold and they say yes, the next question is how?  The witness may say, because the boy was shivering.  The shivering of the boy is an out of court gesture, however, the boy didn’t likely shiver to assert he was cold, it was just a natural body reaction, so this out of court non-verbal communication would be allowed since he wasn’t asserting anything.
The next important part of the rule is that the declarant must be a person.  Machines can’t make assertions and they aren’t people.  So a header on a fax that says the date, time, and number it was sent to is generated by a fax machine.  Even though it is being admitted for the truth of the matter asserted and it is an out of court statement, it is still not hearsay, because a fax machine is not a person and therefore not a declarant under the rule.  This example can be used for records, radar readings, post date stamps and lots of other documentary evidence.  Now, if a person input the words that the machine printed out, then hearsay still applies.  However, if it is words, numbers or symbols automatically created by a machine, then the definition of declarant is not met and it is not hearsay.
The last big part of the definition involves the example the blog started with.  For something to be hearsay it must be admitted for the truth of the matter asserted.  Effect on the listener is one of the examples commonly used when admitting evidence that might on its face appear to be hearsay.  For example, if at issue is why a witness was scared and the answer is because “Bob said he was going to shoot me”, that statement is not hearsay as long as you are admitting it to explain why the witness was scared and not to prove that Bob had said he was going to shoot the witness.  Another example is for subsequent conduct.  If a prosecutor asks a detective what did the witness tell you, and the answer is “the shooter ran over to the 7/11”, you would automatically think hearsay right?  Not necessarily, if you did not care whether or not the shooter ran to the 7/11 and the only reason you were admitting the statement was to explain why the detective next went to the 7/11, then the evidence is admissible to explain why the detective did what he did next.  Again, this is not an exception to hearsay, its not hearsay at all, because it doesn’t meet the definition of hearsay as defined in the rules of evidence.
In conclusion, hearsay is more than just an out of court statement made by someone other than the declarant.  It must also be a declaration, it must be made by a person, and it must be for the truth of the matter asserted.  It’s important to understand the distinction between the definition and the exceptions in order to practice this effectively in the court room.
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