Bench & Bar of Minnesota is the official publication of the Minnesota State Bar Association.

An Out of Court Article on Hearsay

The concept is tricky not because of what hearsay is, but because of what it isn’t

What is remarkable about the rule on hearsay and its exceptions is not the breadth of what is prohibited as evidence, but what is allowable. Too often practitioners conceive the rule to exist as a kind of blanket prohibition on out-of-court statements. It is anything but.

“He lies like an eyewitness.”

– Russian proverb

“Better one eyewitness than 10 hearsay witnesses.”

– Dutch proverb

An out of court statement offered to prove the truth of the matter asserted. Easy enough. So why all the fuss? Well, because rules are fussy. And so are the people who write and argue over rules. When it come to the rules, lots of people give a damn.

The topic of hearsay, like Spreigl, is the perennial darling of writers and scholars. There are probably as many articles on hearsay as there are prisoners convicted because of it. But that does not mean that another article—modest as it may be—is wholly without some value. John Sandford has written 27 books on prey. He didn’t stop after 26. And he won’t after 100.

Dealing with hearsay—especially in the fluid environment of a hearing or trial—is tricky business. It is tricky not because of what hearsay is but because of what it isn’t. What is remarkable about the rule on hearsay and its exceptions is not the breadth of what is prohibited as evidence, but what is allowable. Too often practitioners conceive the rule to exist as a kind of blanket prohibition on out-of-court statements. It is anything but. Discreetly, the rule proscribes only those out-of-court statements that are offered by a proponent of evidence to prove the truth of the matter asserted. This leaves available a host of evidence that might otherwise have the facial appearance of hearsay, but is not. A clear understanding of the rule (and its limitations) will accrue greatly to the benefit of the practitioner who masters it.

This short article endeavors to observe a few, finer points on the rule on hearsay. It is not my project to exhaust the case law for each and every hearsay exception. That task would be like catching light in a box, and I shouldn’t want after that. Finally, to avoid hair-splitting between the state and federal rules, this article is written with a mind for the Minnesota Rules of Evidence (which, admittedly, closely resemble their federal counterparts).1

The basics of the rule

Defined under Minnesota law, “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.”2 A “statement” is “(1) an oral or written assertion or (2) nonverbal conduct of a person, if it is intended by the person as an assertion.”3 A “declarant” is defined simply as a person who makes a “statement.”4 Under Rule 802, hearsay is not admissible as evidence, subject to a raft of exceptions enumerated at Rules 803 and 804.

What constitutes a statement

Note that the definition of “statement” is limited to oral or written assertions or nonverbal conduct intended as assertions. This does not include every word, utterance, or movement—far from it. In order for words or conduct to be assertions, they must be assertive.5 Thus, for example, it would not be prohibited hearsay to offer into evidence the out-of-court words of a person who merely posed a non-assertive question. Questions and commands generally are not intended as assertions, and therefore do not constitute hearsay.6 This does not mean that a question or a command is per se admissible. It is always possible that a question or command is assertive in nature, and therefore within the prohibition on hearsay. Thus is born the requisite that attorneys and courts closely scrutinize individual words on a case-by-case basis, mindful of context and the ultimate question of whether the words or conduct correspond to a disputed fact issue at the trial or hearing.

Nonhearsay by definition

The writers of the rules did us the kindness of saying what hearsay is, and also, to some extent, what it is not. The rules make certain statements explicitly not hearsay by stating so clearly. Other statements are not hearsay by definitional imperative, that is, certain statements are not hearsay because they simply do not meet the definition of hearsay. Rule 801 explicitly sets forth two categories of statements which are not hearsay: (1) prior statements by a witness (with qualifications); and (2) statements by a party-opponent (with qualifications). These two categories include a number of fine-tuned instances in which certain statements are by definition not hearsay.

Statements by a party-opponent may consist of the party’s own statement in an individual or representative capacity, a statement “of which the party has manifested an adoption or belief in its truth[,]” a statement “by a person authorized by the party to make a statement concerning the subject[,]” a statement “by the party’s agent or servant concerning a matter within the scope of the agency or employment, made during the existence of the relationship[,]” and certain statements by coconspirators.7 Importantly, party-opponent statements are only available for use by a party against another party—the rule expresses that the statement must be “offered against a party[.]”8 This forecloses use, for example, of an out-of-court statement of a criminal defendant by the criminal defendant. In such an example, the prosecutor would be free to call witnesses to testify about what the defendant has said outside of court. The defendant would not be free to do the same. While he may be his own worst enemy in many ways, a criminal defendant is not his own opponent at trial for purposes of 801(d)(2).9

Prior statements by witnesses can be trickier. A statement is definitionally not hearsay if

[t]he declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is (A) inconsistent with the declarant’s testimony, and was given under oath subject to the penalty of perjury at a trial, hearing, or other proceeding, or in a deposition, or (B) consistent with the declarant’s testimony and helpful to the trier of fact in evaluating the declarant’s credibility as a witness, or (C) one of identification of a person made after perceiving the person, if the court is satisfied that the circumstances of the prior identification demonstrate the reliability of the prior identification, or (D) a statement describing or explaining an event or condition made while the declarant was perceiving the event or condition or immediately thereafter.

Taken in reverse order, we can pass quickly over (D) and (C). Their uses can be readily understood and often are. (B) and (A) are hairier, and worthy of greater commentary. Continuing in reverse order, we are met by a statement “consistent with the declarant’s testimony and helpful to the trier of fact in evaluating the declarant’s credibility as a witness.” Courts have held that such statements “might bolster credibility by showing a fresh complaint, obviating an improper influence or motive, providing a meaningful context, or demonstrating accuracy of memory.”10 This type of statement and its use is perhaps best described by way of example.

Randy physically assaults his neighbor Jim because he (Randy) is unhappy. Jim tells his wife Cheryl about the events of the assault. He also tells the police, who take an interest in the story. Randy is prosecuted. Randy’s lawyer charges a huge fee, doesn’t do any work, and then shows up for trial. At trial, the prosecutor calls Jim, the victim, to testify regarding the events of the assault by Randy. On direct, Jim testifies consistent with the statements he made to his wife Cheryl regarding the assault. On cross, Randy’s lawyer attacks Jim’s credibility (thereby placing Jim’s credibility in question). It doesn’t matter if Randy’s lawyer is successful or unsuccessful in impeaching Jim’s credibility—it is enough that Jim’s credibility is placed in issue.11 Following Jim’s testimony, the prosecutor calls Cheryl as a witness. Cheryl then testifies to the out-of-court statements Jim made to her about the assault. Randy’s lawyer objects, because something doesn’t feel right, and he thinks it might be hearsay. The objection is overruled. Cheryl’s testimony is “consistent with the declarant’s testimony and helpful to the trier of fact in evaluating the declarant’s credibility as a witness.”12

Potential uses of Rule 801(d)(1)(B) (prior consistent statement) will not always be as elementary as the above example. For starters, consistency among the declarant’s testimony and the out-of-court statement may not be readily apparent. Debates are always available over whether consistency exits. Moreover, a part of a statement may be consistent while the remainder is not, requiring demarcation among words. This does not mean that the trial testimony and prior statement need be identical to be consistent. For example, it is has been held that admission of a videotaped statement that is “reasonably consistent” with the trial testimony is not reversible error.13 Courts must decide such issues on a statement-by-statement basis.

Moving along, and not too quickly, we come to a statement “inconsistent with the declarant’s testimony, and [that] was given under oath subject to the penalty of perjury at a trial, hearing, or other proceeding, or in a deposition.” Nota bene: Unlike the prior consistent statement rule at 801(d)(1)(B), the prior inconsistent statement rule at 801(d)(A) requires that the prior statement be made under oath subject to the penalty of perjury. If the prior inconsistent statement was not made under oath and subject to the penalty of perjury, it will bar use of the statement.

Like disputes over what is “consistent,” so too are there disputes over what is “inconsistent.” On this point, the courts have held that the meaning of the word “inconsistent” does not mean “diametrically opposed or logically incompatible” with each other.14 Any inconsistency must be determined from the full testimony, not isolated portions, and the courts are vested with broad discretion to weigh any claim to determine the possible prejudicial effect.15 Notably in this area, courts have held that a feigned loss of memory regarding prior testimony is inconsistent and the prior testimony is admissible as nonhearsay under Rule 801(d)(1)(A).16 This, in the words of the advisory committee to the federal rules, “provide[s] a party with desirable protection against the ‘turncoat’ witness who changes his story on the stand and deprives the party calling him of evidence essential to his case.”17 Thus, an unwilling witness’s prior testimony may be of great value even when faced with his silence on the witness stand.

Nonhearsay by deduction

So far, we have treated ourselves to a taste of nonhearsay expressly identified as such by the rules. Beyond this finite universe of codification, there exists a near limitless expanse under which out-of-court statements may be admitted in court. This is what I call nonhearsay by deduction: statements that are not hearsay because they do not fall within its definition and are therefore admissible. Remember that the bar on hearsay includes only those statements that are offered to prove the truth of the matter asserted. This means that if a statement is offered to prove something other than the truth of the matter asserted, it should not be excluded on grounds that it is hearsay evidence (though it could be excluded for other reasons under the rules). Because out-of-court statements are routinely eyed with suspicion on account of their hearsay veneer, lawyers should have their nonhearsay justifications at the ready. The following is an example of a nonhearsay by deduction statement appropriately admitted into evidence.

Say that John and Paul get into an argument and John shoots Paul. Paul doesn’t like the feeling of it, so he runs away. Prior to the shooting, a friend of John’s yelled “Shoot him, he’s a bastard!” A witness to the events overheard the statement by John’s friend. At trial, John claims self-defense. In rebuttal, the State calls the witness, who testifies that she heard John’s friend say “Shoot him, he’s a bastard!” Note that the statement is not being used to prove the truth of the matter asserted, namely, that Paul is an illegitimate child. Rather, the statement is being used to impeach John’s claim of self-defense in addition to offering evidence of John’s mental state. The statement would be properly admitted as nonhearsay.

Or take another example. Say that Dennis is fired from his employment as a hair stylist. Dennis brings a claim against his former employer alleging wrongful termination and age discrimination (he’s 126 years old). Prior to his termination, he overheard a manager state to another employee, “The customers are scared of Dennis, he’s 126 years old!” At trial, Dennis testifies to the statement. Note that the statement is not being offered to prove that customers were in fact afraid of Dennis or that he was in fact 126 years old (a fact not in dispute). Rather, the statement is offered to prove a motive for Dennis’ termination.

While the category of nonhearsay by deduction is wide in its scope, it has its limits. Effective lawyers will always be able to argue that some nonhearsay purpose supports admission of a statement. But that does not mean that the mere appearance of a nonhearsay purpose will protect the evidence from exclusion. The stated nonhearsay purpose must be real, not illusory. And it must be vocalized. Courts have held that unless an attorney identifies a relevant nonhearsay purpose for an out-of-court statement, or unless such a purpose is readily apparent from its nature, content, or context, it is proper for a district court to treat the statement as being offered for its truth.18

Final thoughts

We’ve treated very briefly the rudiments of hearsay and the basic geography of nonhearsay by definition and deduction. In handling problems associated with hearsay in the rapidly evolving context of a hearing or trial, practitioners will be best served by mastering an understanding of hearsay’s definition. More frequently, the admission of evidence will succeed or fail based on hearsay’s definition rather than on the invocation of an explicitly identified exception to hearsay under Rules 803 and 804. An ancient document, a business record, an excited utterance—these are all readily apparent. And everybody knows what a dying declaration is, even if they haven’t thought of theirs yet.

ADAM T. JOHNSON is an attorney at Lundgren & Johnson in St. Paul. 


1  In 1977, the Minnesota Supreme Court adopted the Minnesota Rules of Evidence, modeled after the Federal Rules of Evidence. In interpreting the state rules, the state courts of Minnesota look to the federal courts for guidance. See e.g. State v. Dukes, 544 N.W.2d 13 (Minn.1996).

2 Minn. R. Evid. 801(c).

3 Minn. R. Evid. 801 (a).

4 Minn. R. Evid. 801 (b).

5 State v. Brown, 455 N.W.2d 65 (Minn.App.1990) (holding that declarant’s statement of “do what you came to do” was “not assertive”.).

6 Id. at 68.

7 Minn. R. Evid. 801(d)(2)(A)-(E).

8 Minn. R. Evid. 801(d)(2).

9 State v. Wembley, 712 N.W.2d 783, 794 (Minn.App.2006).

10 State v. Bakken, 604 N.W.2d 106, 109 (Minn.App.2000), review denied (Minn. Feb. 24, 2000).

11 State v. Nunn, 561 N.W.2d 902 (Minn.1997) (requiring trial court to make a threshold determination of whether there has been a challenge to the witness’s credibility).

12 Minn. R. Evid. 801(d)(1)(B).

13 In re Welfare of K.A.S., 585 N.W.2d 71 (Minn.App.1998).

14 State v. Amos, 658 N.W.2d 201, 205 (Minn.2003) (quoting United States v. Williams, 737 F.2d 594, 608 (7th Cir.1984)).

15 Hunt v. Regents of University of Minnesota, 460 N.W.2d 28, 34 (Minn.1990).

16 Amos, 658 N.W.2d at 204.

17 United States v. Williams, 737 F.2d 594, 609 (7th Cir.1984) (quoting Fed. R. Evid. 801(d)(1)(A) advisory committee note).

18 Wembley, 712 N.W.2d at 794.

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