Meaning, Intention, and the Hearsay Rule

INTRODUCTION Hearsay problems are language problems. The hearsay rule proscribes the repetition in court of out-of-court statements offered "to prove the truth of the matter asserted." (1) To determine whether a statement is being offered to prove the truth of the matter it asserts, a court must determine what the statement means. In this respect, applying the hearsay rule is similar to interpreting a statute or a contract: in each case, the court must interpret language at a remove from the context of its utterance. Scholars have long recognized that questions about statutory and contract interpretation are questions about meaning, and they have effectively used linguistic analysis to elucidate these and other interpretive questions. (2) Surprisingly, however, relatively little effort has been made to apply linguistic principles in the study of the hearsay rule. (3) In this Article, I draw on insights from the linguistic discipline of pragmatics to offer another way to understand and apply the definition of hearsay in the Federal Rules of Evidence. Pragmatics is concerned with how we use language in real-world contexts to accomplish various objectives. (4) By identifying the conventions that govern language usage, pragmatics provides ways to analyze what a speaker means when he says something and how meaning is conveyed through language. (5) Pragmatics thus has obvious utility for the study of hearsay. The philosopher Paul Grice looms over the field of pragmatics. His theory of conversational implicature revolutionized linguists' understanding of how we communicate. (6) It is Grice's pragmatic theory of meaning, however, that has the greatest import for me. Meaning is an extraordinarily difficult concept. No single theory of meaning has been accepted for all purposes. I will argue, however, that the definition of hearsay in Federal Rule of Evidence 801 (Rule 801) requires an inquiry into what linguists call "speaker's meaning." I will then offer a formula for identifying hearsay based on Grice's theory of speaker's meaning. Finally, I will apply my approach both to basic situations and to a number of hearsay problem areas to demonstrate how it can facilitate the resolution of even the most intractable hearsay issues while effecting the rationale underlying the hearsay rule. My objectives are twofold. First, by showing how hearsay problems fit into an established linguistic framework, I hope to respond to some of the criticism of the prevailing understanding of the hearsay rule. (7) I attempt to show that, contrary to that criticism, the definition of hearsay in Rule 801 can be consistently and rationally applied even in difficult cases. Second, I propose a hearsay formula that I hope can assist judges in resolving real-world hearsay problems. Specifically, I will argue that judges should focus on the communicative intention motivating the statement, and that recognizing that intention requires a focus on preexisting understandings between the declarant and her audience. I. THE DEFINITION OF HEARSAY IN RULE 801 A. The Implied Assertion Problem A prerequisite to understanding the modern hearsay rule is understanding the historical debate about the scope of the rule. This debate has its origin in the celebrated nineteenth-century case of Wright v. Tatham. (8) A Dickensian epic that meandered through England's courts for the better part of a decade, Wright was a suit by an heir at law to recover land from a devisee under a will. (9) The case turned on the validity of the will, specifically on the testator's mental capacity. (10) As evidence of the testator's capacity, the defendant offered several letters written to the testator in the years prior to his death. (11) None of the letters expressly commented on the testator's mental capacity, but the content suggested that the letter writers believed the testator was competent. This inference was offered as evidence that the testator was in fact competent. …