707.1Hearsay: Definition & Admissibility [Rules 801, 802]
- Hearsay is any statement made by the declarant at a time or place other than while he or she is testifying at the trial or hearing that is offered to prove the truth of the matter asserted.
- Hearsay is not admissible in evidence unless it is specifically allowed by an exception in the rules of evidence or another statute.
- Statements that are not offered for the truth of the matter (e.g., only offered to show the effect on the listener or to corroborate the witness’s testimony) are not hearsay, and therefore are not excluded under Rules 801 and 802.
The Basic Rules
Rule 801 – Definition of Hearsay
The following definitions apply under this Article:
(a) Statement. - A "statement" is (1) an oral or written assertion or (2) nonverbal conduct of a person, if it is intended by him as an assertion.
(b) Declarant. - A "declarant" is a person who makes a statement.
(c) Hearsay. - "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.
Note: Rule 801(d) is covered separately in the next entry on “Admission of a Party Opponent.”
Rule 802 – Hearsay Not Admissible
Hearsay is not admissible except as provided by statute or by these rules.
Evidence is “hearsay” if it is a statement (that is, an “assertion,” either oral or written), made by the declarant (i.e., the person who made the statement) at any time or place other than while testifying in court at the current trial or hearing, and the statement is being offered to prove the truth of the matter asserted. See, G.S. 8C-801, 802; State v. Burke, 343 N.C. 129 (1996). For example, if a trial witness such as a law enforcement officer attempted to testify about what an eyewitness at the scene of the crime said that he or she saw, and that statement was offered to establish that the events transpired as the witness reported, the statement would be inadmissible hearsay unless another statute or rule authorized the admission of the statement. See State v. Banks, 210 N.C. App. 30 (2011).
Pursuant to Rules 801(a) and 802, the prohibition against hearsay testimony also applies to nonverbal conduct of the declarant (such as a nod or gesture), if that conduct is intended as an assertion. See, e.g., State v. Robinson, 355 N.C. 320 (2002) (testimony from one witness about whether another witness had pointed anyone out in a mug shot book was inadmissible hearsay); State v. Marlow, 334 N.C. 273 (1993) (“Howell's actions of attempting to give Horton the tape player and later attempting to give him a twenty-dollar bill were nonverbal assertions also constituting hearsay”); State v. Satterfield, 316 N.C. 55 (1986) (declarant’s gesture, in response to officer’s question, of pointing to the drawer where knife could be found was nonverbal conduct intended as an assertion, and therefore inadmissible as hearsay).
The statutory exceptions that allow hearsay to be admitted into evidence are addressed in the following entries:
- For information about hearsay evidence that is admissible as an admission of a party-opponent, see the related Evidence entry regarding Admission of a Party Opponent [Rule 801(d)].
- For information about hearsay evidence that is admissible as an exception regardless of the availability of the declarant, see the related Evidence entry regarding Hearsay Exceptions [Rule 803].
- For information about hearsay evidence that is admissible as an exception based on the unavailability of the declarant, see the related Evidence entry regarding Hearsay Exeptions [Rule 804].
Not Hearsay by Definition
In addition to the statutory hearsay exceptions listed above, there are many situations in which the statement of a declarant is admissible simply because it does not fall within the scope of Rule 801 and therefore it is not subject to exclusion. Several of the most common examples of these kinds of statements are summarized below.
Not Offered for the Truth
A declarant’s statement is not excluded as hearsay under Rule 801 if it is not being offered for the truth of the matter asserted (i.e., “the defendant did X”), but rather for some other permissible purpose such as explaining the defendant’s motive or showing the victim’s state of mind (e.g., “I was scared of the defendant because I heard he did X”). See, e.g., State v. McLean, 251 N.C. App. 850 (2017) (witness’s statement that jailer told her the defendant was in an adjacent cell was not hearsay, because it was offered for the nonhearsay purpose of explaining why the witness was afraid to testify); State v. Castaneda, 215 N.C. App. 144 (2011) (statements in detective’s interview with defendant about what other witnesses allegedly saw defendant do were not hearsay, because they were offered for the nonhearsay purpose of giving context to the defendant’s answers and explaining the detective’s interview technique); State v. Brown, 350 N.C. 193 (1999) (statements made to victim about getting a divorce were not offered for truth of the matter); State v. Davis, 349 N.C. 1 (1998) (statements about defendant being fired were offered for nonhearsay purpose of showing motive); State v. Dickens, 346 N.C. 26 (1997) (recording of statements made in 911 call was admissible for nonhearsay purpose of showing that call took place and that the accomplice was the caller); State v. Holder, 331 N.C. 462 (1992) (statement properly admitted to show state of mind); State v. Tucker, 331 N.C. 12 (1992) (“trial court erred in precluding admission of the statements because they were either nonhearsay or admissible under a hearsay exception”); State v. Woodruff, 99 N.C. App. 107 (1990) (“Clearly, these statements were not offered to ‘prove the truth of the matter asserted.’ This contention borders on the frivolous.”); State v. Quick, 323 N.C. 675 (1989) (victim's letter to murder defendant and testimony of victim's grandmother were not hearsay where they were offered to show that defendant's motive for killing victim was because she wished to discontinue their romantic relationship); State v. Hunt, 323 N.C. 407 (1988) (witness' statement that his wife took out insurance policy on her other husband and said that she did it to have him killed, was not offered for truth of the matter, but for the nonhearsay purpose of proving why codefendants conspired to kill her other husband)
There is no confrontation clause issue when statements are admitted under the “not for the truth of the matter” rationale, because by their very nature these statements are not considered testimonial and therefore they fall outside the scope of what is protected by the clause. See State v. Steele, 260 N.C. App. 315 (2018); State v. Leyva, 181 N.C. App. 491 (2007).
Explains Conduct or Effect on the Listener
Conceptually, this is really just a sub-set of statements that are “not offered for the truth of the matter asserted,” but the case law has particularly recognized that statements which are offered for the nonhearsay purpose of explaining why a person took a particular course of action (“explains conduct”) or reacted in a certain way to that statement (“effect on the listener”) are not excluded as hearsay under Rule 801. See, e.g., State v. Steele, 260 N.C. App. 315 (2018) (“statements by a confidential informant to law enforcement officers which explain subsequent steps taken by officers in the investigative process are admissible as nonhearsay”); State v. Rogers, 251 N.C. App. 869 (2017), rev’d on other grounds, 371 N.C. 397 (2018) (officer’s statements about information collected from nontestifying witnesses were admissible for nonhearsay purpose of explaining officer’s subsequent actions taken in the investigation); State v. Chapman, 244 N.C. App. 699 (2016) (detective’s testimony about what was written in an instruction manual for the air pistol he was testing was not hearsay, because it was offered for the nonhearsay purpose of explaining why he set up the test the way he did); State v. Stanley, 213 N.C. App. 545 (2011) (statements were not hearsay because they were offered to show officer’s subsequent action); State v. Banks, 210 N.C. App. 30 (2011) (officer’s testimony about where another witness told him the gun could be found was not hearsay, because it was offered to explain officer’s subsequent actions of notifying his supervisor and locating the gun); State v. Elkins, 210 N.C. App. 110 (2011) (“[S]tatements are not hearsay if they are made to explain the subsequent conduct of the person to whom the statement was directed.”); State v. Treadway, 208 N.C. App. 286 (2010); (“Lane's testimony was offered for the non-hearsay purpose of explaining Lane's subsequent conduct” in which she reported the abuse to initiate medical care and investigation); State v. Miller, 197 N.C. App. 78, disc. review denied, 363 N.C. 586, (2009) ("Because defendant changed his story as a result of these out-of-court statements, it can be properly said that these questions were admitted to show their effect on defendant, not to prove the truth of the matter asserted."); State v. Reed, 153 N.C. App. 462 (2002) (“the witness' statement was offered only to explain Detective Talley's conduct subsequent to hearing the statement and not to show that defendant's home was actually a ‘liquor house.’”); State v. Wade, 155 N.C. App. 1 (2002) ("A careful reading of the testimony reveals that the remaining portions of the challenged testimony were not offered for the truth of the matter asserted, rather they were offered for the non-hearsay purposes of showing state of mind and effect on the listener."); State v. Harper, 96 N.C. App. 36 (1989) (“there was no hearsay-within-hearsay problem presented here because the statements of the third party declarants were not offered for their truth, but to explain the officer's conduct”).
Don't overdo it
Despite the abundance of helpful cases on this issue, prosecutors should be cautious about overusing this argument as a fallback basis for getting challenged statements into evidence as nonhearsay. If the statement is not offered for the truth of the matter asserted, the prosecutor may not rely on it for that purpose either, so the value of the statement as evidence may be diminished. For further discussion, see Jeff Welty, "The 'Explains Conduct' Non-Hearsay Purpose," N.C. Criminal Law Blog, Oct. 13, 2009.
Corroboration of Testimony
Statements or writings offered to corroborate a witness’s testimony are not offered for the truth of the matter asserted and are therefore not excluded by Rule 801. See, e.g., State v. Thompson, 250 N.C. App. 158 (2016) (victims' statements to officer were admissible to corroborate admitted statements to health care personnel who treated them at the time of the assaults); State v. Royster, 237 N.C. App. 64 (2014) (recordings of witness's telephone calls from jail were admissible at murder trial for nonhearsay purpose of corroborating witness's testimony that defendant had shot victim); State v. Johnson, 209 N.C. App. 682 (2011) (admission of prior written statement was permissible for nonhearsay purpose of corroborating testimony); State v. Tellez, 200 N.C. App. 517 (2009) (“evidence offered for corroboration and not as substantive evidence will not be excluded as hearsay”); State v. Guice, 141 N.C. App. 177 (2000) (“The trial court admitted the written statement not as substantive evidence, but for the limited purpose of corroborative evidence only, which does not constitute hearsay.”); State v. Coffey, 326 N.C. 268 (1990) (statements about what child reported were admissible to corroborate mother’s testimony); State v. Riddle, 316 N.C. 152 (1986) (“Collins' testimony was not offered to prove the truth of the matter asserted […] but was offered merely to prove that Pamela had made a statement to this effect to Collins. The testimony was therefore not objectionable on hearsay grounds.”).
What about impeachment?
As with corroboration, a statement is not hearsay if it is offered to impeach a testifying witness. This does not, however, create a “back door” for admitting the impeaching statement as substantive evidence. See State v. Black, 223 N.C. App. 137 (2012); State v. Hunt, 324 N.C. 343 (1989). For more information about impeachment, including the circumstances when extrinsic evidence such as a prior statement may be used to impeach, see the related Evidence entry on Impeachment: Generally [Rule 607].
Rule 801 allows, as nonhearsay, “the entire category of ‘verbal acts’ and ‘verbal parts of an act,’ in which the statement itself affects the legal rights of the parties or is a circumstance bearing on conduct affecting their rights.” G.S. 8C-801, Official Commentary. For example, if the statement itself constitutes an act under the law (such as offering a bribe or granting permission), the statement is not excluded by Rule 801. See, e.g., State v. Weaver, 160 N.C. App. 61 (2003) (defendant’s offer to pay officer money if he would ignore the drugs that he found was a verbal act of offering a bribe); see also 2 McCormick On Evid. § 249 (7th ed., 2016) (collecting cases and examples of other verbal acts).
The rationale for allowing these kinds of statements into evidence is that “[s]ince the law accords the making of such statements a certain legal effect, the sincerity and reliability of the declarant is of no consequence; the simple fact that those statements were made is relevant.” 31A C.J.S. Evidence § 503.
Not an “Assertion”
Written, oral, or nonverbal communication is a statement subject to the hearsay rules only if the communication is intended as an “assertion.” See G.S. 8C-801(a). Therefore, statements that do not assert any facts, such as questions (“what time is it?”) or instructions (“get out of here”), may be admissible as nonhearsay. See, e.g., State v. Mitchell, 135 N.C. App. 617 (1999) (inmate’s command to the defendant to “leave” or “hurry” was not hearsay: “[d]irectives, such as those here, are not hearsay because they are simply offered to prove that the directive was made, not to prove the truth of any matter asserted therein.”); G.S. 8C-801, Official Commentary (explaining that “a preliminary determination will be required to determine whether an assertion is intended,” but also noting that “[t]he rule is so worded as to place the burden upon the party claiming that the intention [to make an assertion] existed” and “ambiguous and doubtful cases will be resolved against him and in favor of admissibility”); see also State v. Peek, 89 N.C. App. 123 (1988) (written name and address on an envelope was not hearsay, because it was not intended as an assertion: “The sender's conduct in addressing and mailing the envelope undoubtedly implies that the sender believes the addressee lives at that address. Nevertheless, because no assertion is intended, the evidence is not hearsay and is admissible.”).
However, if the context or substance of the question or directive indicates that it should be understood as an “assertion” and it is being offered to prove the truth of the matter asserted, then the question or directive should be viewed as a statement subject to the hearsay rules. See, e.g., State v. McQueen, 324 N.C. 118 (1989) (question that a companion asked the defendant – “you don’t remember killing a state trooper?” – was inadmissible hearsay since it was offered to prove the truth of the matter asserted: namely, that the defendant had no recollection of the killing); State v. Marlow, 334 N.C. 273 (1993) (“Clearly, Horton's oral assertion that he told Howell ‘not to come back around. To stay away,’ constituted hearsay under Rule 801(a).”).
At least one case has held that a composite image prepared by a police sketch artist is not hearsay, even though that sketch is based on (and presumably reflects) the out-of-court descriptions of the perpetrator provided by other witnesses. See State v. Patterson, 332 N.C. 409 (1992) (composite sketch, based on descriptions given by eyewitnesses, was not hearsay – however, state failed to lay a proper foundation to show that sketch accurately portrayed the men the witnesses had seen); State v. Jackson, 309 N.C. 26 (1983) (noting that, if properly authenticated, “sketches, and composite pictures are admissible to illustrate a witness's testimony”); see also State v. Commodore, 186 N.C. App. 472 (2007) (unpublished) (yearbook photos used by victim to identify suspects were not hearsay).