Hearsay evidence consists of an out-of-court statement offered to prove the truth of the matter asserted. [Evid C §1200(a).] An out-of-court statement offered for a relevant purpose other than to show the truth of the matter asserted is not hearsay and may be received in evidence if otherwise admissible. A limiting instruction directing the jury not to consider the evidence for the truth of the statement is generally believed to provide sufficient protection to the party against whom the evidence is offered. [Evid C §355.]
This concept—for the truth of the matter asserted—is the key to hearsay. Many out-of-court statements are not hearsay because a good trial lawyer can usually find another reason to offer the evidence besides for the truth of the matter asserted.
For example, “The passenger said the light was red” is hearsay only when offered to show that the light was red (the truth of the matter asserted). It is not hearsay if it is probative of another material fact—that the passenger could see or speak, was not color blind, or was a liar; or that the light was operating, the witness could hear, or the driver should have stopped when she heard that the light was red.
There are four main reasons why out-of-court statements are not offered for the truth:
- Operative words. An out-of-court statement may be permissible nonhearsay if the words themselves have legal significance just by being said.
For example: “I offer you my car for $6000," or “I accept your offer,” or “Go ahead, search the car,” or “This is a stick up. Give me your money or I’ll shoot.” There is no need to cross-examine the declarant about any of the four testimonial capacities (perception, memory, communication, sincerity) because all we care about is whether the words were said, not whether they were true. The witness testifying at trial about the statement can be cross-examined about whether the words were actually said.
- The effect on the hearer. Imagine a murder case, where the defendant, pleading self-defense, testifies that he had been told the victim had a loaded gun, had threatened him, and had previously killed five people. Those assertions are not being offered for their truth, but rather to show that the defendant was scared and took reasonable action given what he'd heard.
- Circumstantial evidence of the declarant's thoughts or actions. The classic example is the declarant saying, “I am Napoleon.” It would be offered to show that the declarant is crazy, not that he’s Napoleon.
Another example: The defendant's girlfriend testifies at trial that the defendant told her that “Ortiz is a narc.” This is not offered for the truth of the matter asserted—that Ortiz was a narc—but rather to show that the defendant thought Ortiz was a narc and therefore never would have sold drugs to him.
- Completion. In some situations, one can offer a statement to show completion. Evid C §356 and Federal Rules of Evidence 106 allow out-of-court assertions to show why the parties acted a certain way or to provide the other side of a conversation.
Although the proponent of the statement may have cleverly articulated one of these four bases to show why the out-of-court assertion is not offered for its truth, that doesn’t end the analysis.
First, keep in mind that when counsel offers a statement for a reason other than to prove the truth of the matter asserted, that other reason must be material. Often judges will ask, “How is this relevant and material to any issue in the case?” Second, if it will be difficult for the jury to take the evidence purely for its nonhearsay purpose, consider excluding it altogether per Evid C §352. Take particular note of the Law Revision Commission Comment to Evid C §355 concerning limiting instructions: “Under Section 352, as under existing law, the judge is permitted to exclude such evidence if he deems it so prejudicial that a limiting instruction would not protect a party adequately and the matter in question can be proved sufficiently by other evidence.”