ARTICLE VIII.

HEARSAY

     Rule 801  Definitions.  The following definitions apply under this article:

     "Declarant" is a person who makes a statement.

     "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.

     "Statement" is an oral assertion, an assertion in a writing, or nonverbal conduct of a person, if it is intended by the person as an assertion. [L 1980, c 164, pt of §1; gen ch 1985; am L 2002, c 134, §3]

RULE 801 COMMENTARY

  This rule is identical with Fed. R. Evid. 801(a), (b), and (c).  The substance of Fed. R. Evid. 801(d) (prior witness statements and party admissions) is treated in Rules 802.1 and 803(a) infra.

  Paragraph (1):  The definition of "statement" includes some nonverbal conduct as well as express oral or written assertions, see McCormick §250.  The definition expresses an important limitation, however.  A "statement" must be intended by the declarant to be an "assertion," that is, a declaration of fact or belief.  This limitation is relevant primarily to nonverbal rather than oral or written conduct.  "It can scarcely be doubted that an assertion made in words is intended by the declarant to be an assertion," Fed. R. Evid. 801, Advisory Committee's Note.

  The determination of intent in relation to nonverbal conduct is not always simple.  Patently assertive gestures such as nodding to signal acquiescence or, in the instance of a mute, using hand-signing offer no problem.  "[W]here the gesture or other act is done, so far as appears, solely for the purpose of expression it is on a parity ... with any purely verbal statement," McCormick §250.  However, much nonverbal conduct, although tending logically to prove the actor's belief in an event or condition, is not motivated by the intent to assert that belief and should not be considered hearsay.  An example of nonassertive, non-hearsay conduct is the treatment of a patient by a physician for a particular ailment.  The physician's conduct on this occasion logically evidences his belief that the patient is so afflicted, but the intent to assert is lacking, and thus the conduct does not constitute a "statement," even though offered to prove that belief.  Other than in instances in which the assertive intent of nonverbal conduct is clear and unambiguous, the issue is properly one for preliminary determination by the court in accordance with Rule 104.

  Paragraph (3):  This definition of "hearsay" is identical with that contained in Fed. R. Evid. 801(c).  It is also consistent with recent expressions of the Hawaii Supreme Court, see Kekua v. Kaiser Foundation Hosp., 61 H. 208, 217, 601 P.2d 364, 370 (1979) ("Extrajudicial statements ... offered in evidence for the truth of the matter asserted therein"); State v. Murphy, 59 H. 1, 16, 575 P.2d 448, 458-59 (1978).  Compare Territory v. Williams, 41 H. 348 (1956), where the statements were not offered to prove the truth of the matters asserted but rather to prove that the declarant understood the English language and the nature of an oath.  In such a case the court can minimize the danger that the trier of fact may consider the statements as proof of the matters asserted by delivering an instruction pursuant to Rule 105.

  Another class of non-hearsay statements is illustrated in State v. Iwasaki, 59 H. 401, 581 P.2d 1171 (1978), where the defendant was charged with managing a prostitution business.  Testimony by undercover police officers that alleged prostitutes had solicited the officers and discussed sexual activities was objected to as hearsay, but the court held that the prostitutes' statements "were [admissible as] part of the transaction constituting the alleged violation."  The court also characterized the statements as "verbal acts" and as part of the "res gestae."  To the same effect was Wilson v. Von Holt, 25 H. 529 (1920), where the conversation served to explain the purpose and nature of the delivery of a painting.  The statements, although perhaps assertive in nature, were an integral part of the transaction and thus acquired a measure of independent legal significance, similar to the words of a contract or a marriage ceremony.

  In determining whether or not a statement is offered "to prove the truth of the matter asserted," the proposition sought to be proved by the proponent of the statement must be evaluated.  In Kainea v. Kreuger, 31 H. 108 (1929), for example, a predecessor in possession of land had told witnesses that "the property belongs to them."  Ownership of the property was very much in question, but the proponent of the statement claimed title through adverse possession, and the statement was offered, not for the truth of the assertion, but rather to show that the declarant had given "notice to the world that the possession which he was holding was hostile to all others."  31 H. at 113.  In such cases where statements are offered to show notice, limiting instructions under Rule 105 may be in order.

RULE 801 SUPPLEMENTAL COMMENTARY

  The Act 134, Session Laws 2002 amendment clarifies the definition of "Statement" by substituting "assertion in a writing" for "written assertion".  Accordingly, an entire written narrative will not qualify as a single "statement" under Rules 802.1, 803, and 804.  The intent is to codify Williamson v. United States, 512 U.S. 594 (1994) (admission of declarant's entire written confession, which contained inculpatory and noninculpatory elements, as a "statement" against interest was erroneous because "statement" means a "single declaration or remark", and the noninculpatory portions of the narrative should have been excluded), and State v. Ortiz, 91 H. 181, 981 P.2d 1127 (1994) (admission of entire transcription of police interview of witness as a prior inconsistent "statement" was erroneous because portions of the narrative were not inconsistent with trial testimony and the trial court should not have viewed the interview "as a single 'statement'").  As amended, the definition bears resemblance to the definition of "statement" found in Uniform Rules of Evidence Rule 801(a)(3).

  Although technically not applicable to the hearsay rules of article 8, Rule 1001(1)'s expansive definition of "writing" may usefully inform the meaning of that term in this rule.

Case Notes

  Declarant's statement offered for truth of contents, not for fact that statement was made.  67 H. 499, 692 P.2d 1158 (1985).

  Written document, alleged contract, was not hearsay and was properly admitted into evidence by trial court.  10 H. App. 15, 859 P.2d 935 (1993).

  Officer's testimony was not hearsay because it did not go to show the truth of the statement, but to establish the basis for the officer's subsequent actions in arresting defendant.  79 H. 175 (App.), 900 P.2d 172 (1995).

  Complainant's out-of-court statements not hearsay where offered by State not for their truth, but to show that police had reasonable grounds under §709-906 to issue warning citation which defendant subsequently violated.  82 H. 381 (App.), 922 P.2d 994 (1996).

  Where store security manager's testimony regarding the price/value of items, based on a universal price code with the price on the item that the manager verified through the store register system, was inadmissible hearsay, State failed to introduce substantial evidence of the value of the items necessary to support the charged offense of second or third degree theft; however, evidence was sufficient to support conviction of lesser included offense of fourth degree theft.  95 H. 169 (App.), 19 P.3d 752 (2001).

  Where exhibit was not authenticated by a citation to a verified source, and without this certification, the document was hearsay and did not fall under any hearsay exception, by applying rules 901 and 902 and this rule, the exhibit was inadmissible and could not be considered by the trial court.  114 H. 56 (App.), 156 P.3d 482 (2006).

  In light of the record, where the two hearsay statements under this rule could have been, but was not, validly objected to by defense counsel and excluded from evidence, trial court did not violate a duty not to admit inadmissible hearsay testimony into evidence or a duty to strike inadmissible hearsay testimony after it was admitted into evidence and defendant was not the victim of the trial court's plain error; however, defendant had the right to attempt to prove, in a post-conviction/appeal proceeding pursuant to HRPP rule 40, that defendant's trial counsel's failure to object to the statements was ineffective assistance of counsel.  120 H. 73 (App.), 201 P.3d 586 (2005).