Objection. Leading." "Objection. Calls for hearsay." These are easily the two most common objections made to questions and answers on examination. Unfortunately, neither is adequately understood. This article will focus on just a few widely-held mistaken beliefs about the prohibition against hearsay—the bastard child of Facebook and Wikipedia.
Although the hearsay objection is raised, argued against and ruled upon so very recurrently, practice hasn't made perfect, and the concept is widely misunderstood and misapplied. Flawed thinking about hearsay has been passed down from professor to lawyer to lawyer, and from judge to lawyer to judge with such frequency, to the extent that some defective viewpoints have become rather ingrained. As Bertrand Russell once wrote in his "Marriage and Morals," "The fact that an opinion has been widely held is no evidence whatever that it is not utterly absurd; indeed in view of the silliness of the majority of mankind, a widely spread belief is more likely to be foolish than sensible."
Ironically, many of the dangers related to reliance upon hearsay—problems of ambiguity, insincerity, erroneous memory and inaccurate perception—are also responsible for the proliferation of faulty information about what it is and isn't, and how to properly apply its various exceptions.
Most mistakes about hearsay can be sorted into two groupings:
(1) Statements that are thought to be hearsay, which clearly are not, i.e., nonhearsay statements, where an exception is unnecessarily sought; and
(2) Statements that are thought not to be hearsay, which clearly are, i.e., hearsay statements, where an exception should be sought, but isn't.
One useful way to discuss this subject is through examples. Studying case books full of appellate opinions is a singularly ineffective way to get a firm grasp on the concept of hearsay, or of any other area of evidence, for that matter. Rather, the best way to transform theory into practice is to go beyond case analysis and engage in systematic problem solving in specific situations, similar to those confronted in practice.
Statements That Are Thought to Be Hearsay, Which Clearly Are Not
As a preliminary note, a hearsay objection cannot be properly ruled upon without first knowing what the answer to a propounded question would involve. Sometimes, the form of the question is a give-away that the answer would entail hearsay, but that is often not the case. Many of us have observed hearsay objections being sustained, without first hearing a response or a proffer, followed by a general instruction to the witness not to relate what others have said. This is an incorrect approach, and should trigger either permissive argument and proffer by the proponent, or a Rule 1:7-3 request to preserve the record by documenting the disallowed testimony.
It is important to note that not every out-of-court statement (OCS) is hearsay. The concept of a "statement" is broadly defined under N.J.R.E.801(a) to include written and verbal assertions as well as nonverbal conduct by a person if it is intended by him to constitute an assertion. This fundamental condition is often neglected.
For example, a witness who testifies at trial that he saw a woman at the scene of an accident scrambling to switch places with a man who was behind the wheel when the accident occurred would not be offering hearsay testimony. By her conduct, the woman was not making an assertion intended to be a statement within the meaning of N.J.R.E. 801(a). Rather than intending to communicate—for whatever reason—that she did not want anyone to conclude that the man was driving when the collision occurred, she was simply taking action at the accident scene. This observation could be quite relevant for a variety of reasons.
This writer once attended a seminar where various evidence issues were discussed. One segment included a role play, demonstrating a rather convoluted and unnecessary approach to moving a pediatrician's comments into evidence. "Your boy has an infection; I am prescribing an antibiotic to treat it; and he should stay home from school with bed rest for the next couple of days," is not hearsay, if the reason it is offered is to show the good-faith reason why the boy's mother kept him home from school or failed to transfer the child to the other parent, as scheduled.
The physician could have been mistaken. The truth of the diagnosis and treatment advice is not the point. The point is that the parent heard the advice and relied on it. See Russell v. Rutgers Health Plan, 280N.J. Super. 445, 456-457 (App. Div.), certif. den. 142 N.J. 452 (1995); Jugan v. Pollen, 253 N.J. Super. 123, 136-137 (App. Div. 1992).
Various permutations of this misconception come up constantly. It is predicated upon the mistaken assumption that testifying that a particular statement—other than a verbal act—was actually made, presents a hearsay issue. It does not. As the court observed in State v. Long, 173 N.J. at 152: "It follows … that if evidence is not offered for the truth of the matter asserted, the evidence is not hearsay and no exception to the hearsay rule is necessary to introduce that evidence at trial." For example, when a statement is offered only to show that the statement was in fact made and that the listener took certain actions as a result, or to show the probable state of mind induced in the listener, the statement is not hearsay. Carmona v. Resorts Intern. Hotel, 189 N.J. 354, 376-377 (2007); Toto v. Princeton Tp., 404 N.J. Super.604, 619 (App. Div. 2009); Spragg v. Shore Care, 293 N.J. Super. 33, 56-57 (App. Div. 1996).
This also obtains to the admission of writings. Courts have admitted documents as evidence of the state of mind or knowledge of the recipient or reader of the document and not for the truth of the documents' contents. See Bonitsis v. NJ Institute of Tech., 363 N.J. Super. 505, 524-525 (App. Div. 2003), rev'd on other grds, 180 N.J. 450 (2004) (where letters from plaintiff's physician, which described his medical condition, were admitted for the nonhearsay purpose of demonstrating that the plaintiff sought medical advice); Sanzari v. Rosenfeld, 34 N.J. 128 (1961).
As to "verbal acts," this is a phrase used to describe a certain category of testimony not subject to the hearsay rules. See State v. Haarde, 230 N.J. Super. 605, 608-609 (App. Div. 1989) (where a witness' statement that the defendant had ordered minors to leave his party was admissible as a verbal act that the defendant did not serve alcohol to minors as charged); Kalola v. Eisenberg, 344 N.J. Super. 198, 209-210 (Law Div. 2001) (where a threat was considered a verbal act, beyond the exclusionary provisions of the hearsay rule). Other examples of assertions that do not generally constitute statements include questions, greetings and epithets, bywords or descriptive titles like, "Thou mad mustachio purple-hued maltworms!" ("Henry IV").
Expert reports, not offered into evidence. In one of this writer's child custody cases, the other party independently retained a psychologist to do a best-interest evaluation. The written report came back quite unfavorable to the mother, and opposing counsel elected not to take the expert's testimony, and chose not to ask that the report be moved into evidence—which offer would have been subject to hearsay and other objections absent the expert's testimony. However, the report contained a slew of admissions by the mother, which came in as statements by a party opponent nonetheless, to her considerable detriment.
Statements Thought Not to Be Hearsay, Which Clearly Are
"All statements made by children are not hearsay in the context of a domestic relations case." This is simply false. The misconception, unfortunately, is rather well-spread. There is absolutely no omnibus exception to the prohibition against hearsay when the declarant just happens to be a child. That being said, there are all sorts of ways that an OCS by a child can be admitted, inasmuch as they are simply not hearsay, or fall within recognized exceptions; e.g., N.J.R.E.803(c) (1)-(4).
"But, she's sitting right here." On occasion, this reaction may be heard coming from the bench, in response to objections made to the testimony of one party, quoting the other party's earlier OCS, and offering the statement for the truth of its content. This is never a valid reason to either sustain or to overrule such an objection. Just because a witness is testifying, or is in court and able to eventually defend herself, does not make hearsay not hearsay. However, N.J.R.E. 803 (c)(25) statements against interest—if so at the time the statement was made—and N.J.R.E. 803 (a)(1) prior inconsistent statements may nonetheless provide the means, by exception, to admitting hearsay over objection.
If one party is testifying as to an OCS made by the other for the truth of it and to use the statement against him—although it is clearly hearsay if the declarant was not a party—declarations such as these are otherwise admissible as N.J.R.E.803(b)(1) statements by a party-opponent. In cases where a party is testifying about an OCS she made earlier, other than to refute challenges related to allegations of recent fabrication, the statement is hearsay, and is likely being offered to inappropriately bolster her in-court testimony.
Similarly, a witness co-worker of the wife, about to testify to a self-serving statement made to her by the wife earlier, is clearly hearsay. The N.J.S.A.803(a)(2) exception is only applicable if offered to rebut an express or implied charge of recent fabrication or improper influence or motive. However, any such accusation must have already been made in some admissible form. It is not enough to suppose that such a charge would eventually emerge.
The hearsay rule is closely intertwined with legal inferences of proof and truth, as well as witness ambiguity, sincerity, memory and perception. The impression of trustworthiness is likewise tied into probabilistic conceptions of reasonableness and doubt in this area of evidence law. Hearsay is an alternative to formal proof, but it is not necessarily nonlogical proof. Hearsay evidence is powerful evidence, and more often than not, contains implied assertions that may weigh heavily on matters of good or bad faith, or reasonableness. Command of this important area of the law of evidence should never be taken lightly.•