Circuit Consensus: When Are Questions "Statements" For Hearsay Purposes?

In trial for distributing crack, admitting confidential informant's testimony that the defendant's associate "asked if he was 'with Black,'" the defendant, during an arranged drug buy because the associate's words formed, and was intended as, a question, not a statement or assertion, in United States v. Love, __ F.3d __ (7th Cir. Feb. 7, 2013) (No. 11-2547)

In assessing FRE 801's application, the analyst can often puzzle over how broadly to interpret the concept of "statement" for purposes of the hearsay rule. After all, it is possible that exclamations or questions can be construed to be "statements" for purposes of FRE 801, if among other things, the words “both intentionally express and communicate ideas or information.” 4 Christopher B. Mueller & Laird C. Kirkpatrick, Federal Evidence § 8:6 (3d ed. 2007). As noted by the Seventh Circuit recently, the federal circuits also appear to require a second requirement be met for this objective measure of what is a statement. This aspect focuses on whether the declarant intended the words as a statement. Under this reasoning, if the declarant intends his or her words as a question, rather than as a statement or assertion of information, even if the words used also express information or ideas, it will not be a statement subject to the hearsay rule. The Seventh Circuit recently cited six circuits as sharing this dual requirement for determining a statement.

In the case, during defendant Love's trial for distributing and conspiring to distribute crack cocaine a major prosecution witness was the confidential informant (CI) who had called the defendant in an attempt to buy drugs from him. The defendant was willing to deal and several buys were initiated and completed before officers arrested the defendant. The CI "testified extensively about his role" as a CI, which was collaborated by evidence from police phone logs, videotapes, audio recordings, and law officer's testimony. The defendant presented no witnesses on his behalf, nor did he testify.

The jury convicted the defendant and he appealed, contending in part that the trial court erred in admitting the CI testimony. He argued that it was inadmissible hearsay. Specifically, the defendant claimed that the CI's testimony about what a collaborator of Love's who delivered the drugs had asked. The CI testified that this associate initiated their first exchange by asking the CI when he approached him if he was "with Black" during the alleged drug transaction. The circuit noted that the issue this testimony raised concerned whether it was a statement and what it was offered as proof of.

The Seventh Circuit acknowledged that the challenge to admission of the CI testimony had "some force." The circuit then explained why the CI testimony was not hearsay:

Questions [such as that asked by the associate] seek information, but they convey information, too. A speaker who asks, “Son, is it raining outside?” clearly intends to get information about the weather, but the speaker also implicitly communicates information—for instance, that he or she is probably indoors, is interested in the weather, and has a son. This fact has led some commentators to argue that “we should view both imperatives and questions as ‘statements' for purposes of the hearsay doctrine” because “both intentionally express and communicate ideas or information.”

Unfortunately for Love, the federal courts do not take this approach. We held in United States v. Thomas that questions are not “statements” and therefore are not hearsay.
Love, __ F.3d at __ (citing United States v. Thomas, 453 F.3d 838, 845 (7th Cir. 2006); 4 Christopher B. Mueller & Laird C. Kirkpatrick, Federal Evidence § 8:6 (3d ed.2007).

The circuit noted that "Our sister circuits agree" with the approach. In light of its listing, below, the circuit considered that "overwhelming precedent" would support the view "that Love's question was not hearsay." The court cited the following as in support of the Seventh Circuit position:

  • Second Circuit: United States v. Oguns, 921 F.2d 442, 449 (2d Cir. 1990) ("Because a question cannot be used to show the truth of the matter asserted, the dangers necessitating the hearsay rule are not present.")
  • Third Circuit: Lexington Ins. Co. v. W. Pa. Hosp., 423 F.3d 318, 330 (3d Cir. 2005) ("Courts have held that questions and inquiries are generally not hearsay because the declarant does not have the requisite assertive intent, even if the question 'convey[s] an implicit message' or provides information about the declarant's assumptions or beliefs.") (citation omitted)
  • Fifth Circuit: United States v. Lewis, 902 F.2d 1176, 1179 (5th Cir. 1990) ("The questions asked by the unknown caller, like most questions and inquiries, are not hearsay because they do not, and were not intended to, assert anything.")
  • Sixth Circuit: United States v. Wright, 343 F.3d 849, 865 (6th Cir. 2003) ("[A] question is typically not hearsay because it does not assert the truth or falsity of a fact. A question merely seeks answers and usually has no factual content.")
  • Seventh Circuit: United States v. Thomas, 453 F.3d 838, 845 (7th Cir. 2006) ("Thomas's first remark was not a statement, it was a question.")
  • Eighth Circuit: United States v. Thomas, 451 F.3d 543, 548 (8th Cir. 2006) ("Questions and commands generally are not intended as assertions, and therefore cannot constitute hearsay.")
  • Tenth Circuit: United States v. Jackson, 88 F.3d 845, 848 (10th Cir. 1996) ("The mere fact, however, that the declarant conveyed a message with her question does not make the question hearsay.")

But if the intent of the declarant plays such a large role in whether a communication or a question is "intended," the Seventh Circuit found considerable support in another case involving a declarant's question to police that was admitted as non-hearsay. This case was a Tenth Circuit case, United States v. Summers, 414 F.3d 1287 (10th Cir. 2005)(nothing is an assertion” for purposes of Rule 801 “unless intended to be one.”). The Seventh Circuit reasoned that like the declarant in the Summers case, the declarant in the defendant's case, while in the form of a question "was intended to be an assertion" as it was “'designed to elicit information and a response.'” Love, __ F.3d at __ (citing United States v. Summers, 414 F.3d 1287, 1300 (10th Cir. 2005)). The intent in Summers was as clear as it was in the present case as:

In Summers, a co-defendant being arrested for bank robbery exclaimed to police, “How did you guys find us so fast?” The trial court admitted the statement, but the Tenth Circuit held that it should have been excluded, “It begs credulity,” the court wrote, “to assume that in [posing] the question [the declarant] was exclusively interested in modern methods of law enforcement, including surveillance, communication, and coordination. Rather, fairly construed the statement intimated both guilt and wonderment at the ability of the police to apprehend the perpetrators of the crime so quickly.” This, the court found, distinguished the declarant's question from questions that are “designed to elicit information and a response, rather than assert the defendant's involvement in criminal activity.” Accordingly, the declarant's “intent to make an assertion was apparent and that his question directed to police officers on the scene constituted hearsay.”
Love, __ F.3d at __ (citing United States v. Summers, 414 F.3d 1287, 1298-1300 (10th Cir. 2005))


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