PROBATE ISSUES CONCERNING THE

DEFINITION OF HEARSAY

Judge Gerald I. FisherNCJP Fall Conference November 12, 2015Alexandria, VA

HEARSAY DEFINED

Fed. R. Evid. 801. Definitions That Apply to This Article; Exclusions from Hearsay

* * * *(c) Hearsay. “Hearsay” means a prior

statement — one the declarant does not make while testifying at the current trial or hearing — that a party offers in evidence to prove the truth of the matter asserted by the declarant.

Shorthand Definition

Hearsay is an out-of-court statement being introduced for the truth of the matter asserted.

VOCABULARY

1. “declarant” – a person who makes an out-of-court statement

2. “witness” – one who testifies in court

– A person can be both a declarant and a witness

3. “testimony” – what a witness says in court:

4. “statement” – a person’s oral or written assertion, or non-verbal conduct or silence intended as an assertion

Hypothetical #1

Q. In a guardianship proceeding, the subject’s daughter opposes her brother, who lives with their father, being named guardian. She claims the brother sells drugs out of the home and she is prepared to present a police officer to testify that police searched her father’s house pursuant to a warrant and that a drug sniffing dog that the officer specially trained alerted to several areas in the house for the presence of drugs. The brother, who is represented by counsel, objects to the evidence as hearsay. Is that objection correct.

Hypothetical #2

Q. In a will contest between the decedent’s son and the son’s step-mother, the step-mother is prepared to testify that every time the son came over, the decedent’s prized parrot, which the decedent owned for 30 years, would say, “My son is a no-good bum who just wants my money.” The son’s attorney objects on hearsay grounds. What ruling?

Questions To Ask WhenDeciding If Testimony Contains Hearsay

1. Is it a statement?

2. Was the statement made out of court?

3. Is the statement being offered for the truth of the matter asserted?

4. Does the statement have independent legal significance?

Question IIs It A Statement?

Fed. R. Evid. 801. Definitions That Apply to This Article; Exclusions from Hearsay

(a)Statement. “Statement” means a person’s oral assertion, written assertion, or nonverbal conduct, if the person intended it as an assertion.

• Under this definition, a “statement” may be in any one of the following forms:

1. Oral statement

2. Written statement

3. Conduct

4. Silence

With respect to each form, the issue is:

– Whether the written or oral words, conduct, or silence were intended by the “speaker,” “actor,” or “writer” to be an assertion, i.e., intended to be communicated as a fact with the expectation that the fact will be accepted as true.

• “The effect of the definition of statement is to exclude from the operation of the hearsay rule all evidence of conduct, verbal and nonverbal, not intended as an assertion. The key to the definition is that nothing is an assertion unless intended to be one.” Advisory Committee Note to Fed. R. Evid. 801(a) (emphases added).

Is It An Assertion?Conduct as an Assertion

If you are trying to prove that it is raining out and offer the following evidence:

1. Call out to people and ask if it is raining and they put up their umbrellas.

2. You do not call out, but look out the window and people have their umbrellas up.

Other examples of conduct that may or may not be assertions:

3. Trying to indicate that someone is crazy by pulling your hair to show that you are frustrated.

4. Trying to prove the color of a light at an intersection by showing the conduct of people moving in cars when the light changes, although you cannot see light.

Oral & Written AssertionsHypothetical #3

Q. Decedent left his estate to his Caretaker. Decedent’s heir claims that Decedent was mentally incompetent when he executed his Will. Caretaker offers as evidence of Decedent’s competency several letters from persons who had written to Decedent in a manner suggesting the writers thought Decedent was competent during the relevant time period. The writers are not available to testify and there is no way of knowing from the record that they had personal knowledge of Decedent’s mental state. Heir’s attorney objects on hearsay grounds. What ruling.

Hypothetical #4

Q. Same facts as Hypothetical #1 (sister alleging brother a drug dealer). During the search of the home, the phone rang several times and each time it did, the police picked up and pretended to be the son, and the caller on the other end, using street lingo, would place an order for drugs. As an example, one caller said, “Give me 2 birds for 3 K.” A second police officer, a narcotics expert, is prepared to testify that “Birds” is street lingo for an ounce of cocaine and “K” is $1,000. Counsel for the son objects on hearsay grounds. What ruling?

Hypothetical #5

Q. Same facts. What if the caller said, “If this is the place that sells birds, give me 2 birds for 3 K.”

Si

Silence As An AssertionHypothetical #6

Q. Before he dies, Testator tells his Daughter that he is writing a New Will and leaving her ½ of his estate. In the New Will she is the beneficiary of ½ of his residuary estate, but because most of his property was held in joint tenancy with his Wife, Daughter does not inherit ½ of his assets. Daughter sues the lawyer who drafted the Will. At trial, Lawyer testifies he informed Decedent that to make Daughter beneficiary of ½ of the estate, he would have to transfer his assets into his own name. Testator never did so. In rebuttal, Daughter seeks to call Testator’s bookkeeper/tax preparer, who is prepared to testify that Testator discussed all financial matters with her, but neither he nor the attorney informed her of the need to change the titling of the assets to make the will effective. Attorney objects to the Testator’s lack of communication on hearsay grounds. What ruling?

– Silence cannot be considered an assertion (hearsay) unless one concludes that by remaining silent the declarant intended to assert something.

– Silence is usually ambiguous, but ambiguous cases are resolved in favor of concluding that there was not an assertion (thus no hearsay)

• “The rule is so worded as to place the burden upon the party claiming that the intention existed; ambiguous and doubtful cases will be resolved against him in favor of [classifying the conduct as non-assertive and therefore non-hearsay].” Advisory Committee Comment to Fed. R. Evid. 801(a).

Question IIWas The Statement Made Out-of-Court?

•

1. Whenever a witness testifies to words that were spoken by anyone (including himself/herself) other than during the trial/hearing currently being held, those words are an “out-of-court” statement for the purposes of 801(c).

2. FRE 801(c) thus should be understood to read: “A hearsay statement is a statement other than the testimony given by the declarant while testifying at the present trial or hearing.”

• E.g., testimony at a deposition or earlier trial is an “out-of-court statement” for a later trial.

• Also, merely because the declarant is also the witness does not mean that the declarant can repeat what he or she said out-of-court.

–

Question IIIIs The Statement Offered For The Truth Of

The Matter Asserted?

For each statement you have to ask:

– Is the party trying to prove the truth of the out-of-court statement or conduct or, instead, trying to prove that the statement or conduct occurred and that the occurrence is relevant to an issue in the case?

– If the statement is not offered to prove the truth of the matter asserted in the statement, then it is not hearsay.

Hypothetical #7

Q. Estate litigation concerning a couple who died together in a car crash where the estate is distributed differently depending on who died first. Deputy Sheriff arrived at the scene and determined that the Wife was dead. He heard the husband say “I am still alive.” Heirs of the Wife object that the statement is hearsay. What is your ruling?

Hypothetical #8

Q. In a will contest between the decedent’s son and the son’s step-mother, the step-mother is prepared to testify that every time the son came over, after he left the decedent would say words to the effect of, “My son is a no-good bum who just wants my money.” The son’s attorney objects on hearsay grounds. What ruling?

Hypothetical #9

Q. Same facts as Hypothetical #4. During the search of the apartment, the police find a large number of slips of paper that have different sets of initials at the top and drawings of one or more birds and one or more capital K’s. A police officer is prepared to testify these are “pay/owe sheets by which drug dealers keep track of what buyers owe them. Son objects on hearsay grounds.

Hypothetical #10

Q. PR is suing hospital for negligence in hiring doctor who performed an operation upon Decedent, and Decedent died shortly thereafter. In support of the claim, PR offers committee reports of other hospitals (and is prepared to call qualified records custodians to authenticate them) to show that the doctor had been suspended for incompetent performance. Hospital’s attorney objects on hearsay grounds.

Hypothetical #11

Q. Same case. What if the PR wanted to use the reports to prove that the doctor was negligent in performing the surgery on the Decedent?

PRINCIPAL SITUATIONS WHERE STATEMENTNOT OFFERED FOR THE TRUTH OF THE MATTER

1. To show mental state of the party – (a) were actions willful (b) malicious (c) with intent to defraud (d) with intent to murder, etc.

2. To show effect on hearer such as duress, self-defense.

3. To show knowledge or proof of notice.

4. To show state of mind of the declarant.

Question IVDoes The Statement Have Independent

Legal Significance?

– “The effect [of the definition of hearsay] is to exclude from hearsay the entire category of “verbal acts” and “verbal parts of acts” in which the statement itself affects the legal rights of parties or is a circumstance bearing on conduct affecting their rights.” Advisory Committee Note to Fed. R. Evid. 801(c).

– Legally Operative Acts/Acts of Independent Legal Significance are another category of statements that are not offered for the truth of the matter asserted, but only to show that the statements were made, and as a result legal rights and responsibilities attached to the making of the statement.

Examples:

(1) offer and acceptance(2) transfer of a gift(3) creating a trust(4) exchange of wedding

vows

Hypothetical #12

Q. In a hearing regarding a challenge to the PR’s administration of the estate, one of the heirs claims that the decedent gave her a box a few months before she died and said, “I want you to have this.” In the box was a mink stole. The PR objects on hearsay grounds. What ruling?

Hypothetical #13

Q. Same facts, but what if, instead, the heir claims that the decedent gave her the box a few months before she died, said nothing, but a few days later said “I wanted you to have my mink stole as a gift.” Same objection. What ruling?

Basis of Testimony

Hypothetical #14

Q. Decedent was the owner of a large real estate company that regularly purchased properties from other individuals or companies. While Decedent was alive, his two sons were partners in the business, but a few years before Decedent died, the younger son left in a dispute with his father and brother. The older brother is named PR in decedent’s Will, which leaves ½ of the company’s assets to each son. In the probate proceedings, the younger son claims his older brother has undervalued the business by colluding with some of the sellers to purchase properties at deflated prices, then giving the sellers “kick-backs.” At trial, the younger son offers a forensic accountant who is prepared to testify that he has reviewed 30 such transactions and spoken with the sellers and more than 20 of those properties were purchased in that fashion. Older son’s attorney objects on hearsay grounds. Younger son’s attorney responds that the accountant has not testified to any statement. What ruling?