R. PARK, McCORMICK ON EVIDENCE AND THE CONCEPT OF HEARSAY: A CRITICAL ANALYSIS FOLLOWED BY SUGGESTIONS TO LAW TEACHERS

65 Minn. L. Rev. 423 (1981)

Definitions of hearsay are commonly either assertion-oriented or declarant-oriented. An assertion-oriented definition focuses on whether an out-of-court assertion will be used to prove the truth of what it asserts, while a declarant-oriented definition focuses on whether the use of the utterance will require reliance on the credibility of the out-of-court declarant.

The exposition of the concept of hearsay in McCormick draws on both of these traditions. The book defines hearsay as follows:

Hearsay evidence is testimony in court, or written evidence, of a statement made out of court, the statement being offered as an assertion to show the truth of matters asserted therein, and thus resting for its value upon the credibility of the out-of-court asserter.

Although this definition is essentially assertion-oriented, the final clause introduces a declarant-oriented aspect by stating that when an utterance is offered for its truth, then it rests for value on the declarant's credibility. The text immediately following the definition goes further, and indicates that when an assertion is not offered for its truth, then it does not depend for value on the declarant's credibility. Taken together, these passages in McCormick suggest that the assertion-oriented and declarant-oriented definitions are functionally equivalent.

This suggestion is misleading, since choice of one definition over the other can lead to different results. An utterance offered as a falsehood provides the most vivid example. Suppose that X is charged with committing a crime in Boston. The police talk to X's wife, who tells them that X was with her in Denver on the day in question. The wife's statement is demonstrably false, and the prosecution seeks to use it against X for the inference that X's wife lied because she knew him to be guilty. Under an assertion-oriented definition, the wife's statement is not hearsay because it is not offered to prove the truth of the matter asserted. Under a declarant-oriented definition, however, the statement would be hearsay because the trier's use of it requires reliance on the wife's powers of memory, perception, and narration.(1)11

McCormick itself deems certain utterances nonhearsay even though they depend for value upon the declarant's credibility. For example, the book states that the utterance "Harold is the finest of my sons," offered to prove that the declarant was fond of Harold, is nonhearsay because it is not offered to show the truth of its assertion. Under a declarant-oriented definition, however, the utterance would be hearsay because it rests on the declarant's sincerity and narrative ability.(2)13

1. 11. The wife might not have intended a cover-up; she may simply have been mistaken about the date of her husband's presence in Denver. Even if she intended to mislead the police because she believed her husband was guilty, her belief may have been based on a bare suspicion or an insane delusion. Alternatively, she may have misspoken, saying "June first" when she meant "July first." Thus, substantial reliance on her memory, perception, and narrative ability are required in order to reach the final inference that her husband is guilty. For examples of declarant-oriented definitions that would seem to classify the wife's utterance as hearsay, see R. Lempert & S. Saltzburg [A Modern Approach to Evidence 340-341 (1977)], at 340-45; Tribe [Triangulating Hearsay, 87 Harv. L. Rev. 957, 959 (1974)], at 959-60. See also Morgan [Hearsay Dangers and the Application of the Hearsay Concept, 62 Harv. L. Rev. 196-212 (1948)], at 218-19.

2. 13. The utterance rests on the declarant's narrative ability because it loses value if the declarant meant to say "Arnold is the finest of my sons" or "Harold is the first of my sons." It rests on the declarant's sincerity because a deliberate lie about Harold's character, for example to his prospective employer, would undercut the inference that the declarant was especially fond of Harold. Another hearsay danger, ambiguity of inference, is also present because the declarant might genuinely believe that Harold is the finest, but might nevertheless be more fond of his youngest son Joe.


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