Nonhearsay Categories

"Admit that bitch!" So said a student when she and her classmates were enjoying a beer and lunch at the Sunspot after my Evidence exam. Having endured four hours of hairsplitting multiple choice questions, largely on hearsay, she concluded that in future trials she should argue that most out-of-court statements ("bitches") are admissible.

And she's right. Even if a statement is hearsay, Tennessee provides 25 exceptions allowing admissibility. Moreover, many extrajudicial statements are not hearsay. In this column we'll explore the four major categories of nonhearsay.

Legally Operative Words
This category goes by different names in different textbooks. Sometimes the nomenclature is "Verbal Acts" or "Operative Facts." I've settled on the above heading.

An example from contracts law would be words of offer and acceptance. Seller writes: "I offer to sell Blackacre for $100,000." Buyers writes in response: "I accept the offer." The credibility of the declarants is immaterial. The mere use of such language forms a binding contract.

A good example from the law of torts is defamation. You can sue and recover from a defendant who accuses you of thieving from client trust funds. Obviously you will offer the defendant's statement as false rather than true. So it's nonhearsay.

Words to Prove Effect on Listener's or Reader's Mental State
My favorite category provides many examples, some of which I've recounted on earlier pages in columns or articles about legal history. Let's review a couple.

New York tried Harry Thaw for murdering architect Stanford White atop Madison Square Garden in 1906. (See my March 1999 column.) His insanity defense was based on wife Evelyn Nesbit Thaw's confession that White had seduced her as a teenager. He was sent to an asylum after two trials.

Tennessee tried Gene Blanchard for murdering Harry Gervin at the Church Street Methodist construction site in 1930. (See my June 2007 article.) His insanity defense based on wife Iva's confession of infidelity with Gervin was unsuccessful. He was sent to prison.

Words to Prove Declarant's Mental State
To prove that the testator truly wanted the will beneficiary to have his small fortune, his executor testifies: "I heard testator say that beneficiary is the object of my respect and affection." The testimony is nonhearsay because the quality of testator's beneficiary is immaterial. The testimony is offered to prove the declarant's mental state, even if misguided.

Words to Impeach by Inconsistent Statement
Your witness testifies in a wreck trial that the traffic light was still "green" when your client's car entered the intersection. I cross-examine the witness with her deposition statement that the light had turned "red" when the car entered the intersection. The deposition statement is admissible nonhearsay. Admissibility is limited to impeachment value. The jury can use the deposition to disbelieve the trial testimony, but the deposition is not substantive proof to support a verdict under state law.


Don Paine DONALD F. PAINE is a past president of the Tennessee Bar Association and is of counsel to the Knoxville firm of Paine, Tarwater, Bickers, and Tillman LLP. He lectures for the Tennessee Law Institute, BAR/BRI Bar Review, Tennessee Judicial Conference, and UT College of Law. He is reporter to the Supreme Court Advisory Commission on Rules of Practice and Procedure.