Another Appellate Criminal Court Decision With Civil Litigation Implications: A Question Can Be a Hearsay 'Statement'

The Pennsylvania Superior Court has handed down a criminal court decision which could have implications in the trial of a civil litigation matter.  

In a case of first impression entitled Commonwealth v. Parker,  2014 Pa. Super. 253, No. 918 EDA 2011 (Pa. Super. Nov. 6, 2014 Olson, Ott, Stabile, J.J.)(Opinion by Olson, J.), the Pennsylvania Superior court ruled that an out-of-court in the form of a question can be deemed to be a hearsay statement if it includes an assertion, or an implied assertion, within the question.   

According to the Opinion, the Defendant sought to have statements made by a victim to his grandmother shortly before the victim was shot and killed ruled as inadmissible hearsay.  Some of the statements at issue were in the form of a question by the victim. 

In its Opinion, the Pennsylvania Superior Court noted that, while the issue raised by the Defendant had been addressed by many other courts, no consensus had been reached.  Also, the Pennsylvania Superior Court and the Pennsylvania Supreme Court had not yet addressed the issue.

Some of the other courts that have addressed the issue have taken the position that a true question or inquiry is, by the nature of itself, incapable of being proved either true or false and, therefore, cannot be offered ‘to prove the truth of the matter asserted’ such that it does not constitute a “hearsay statement” by definition.  

The Pennsylvania Superior Court went in a different direction and instead elected to follow those jurisdictions that have held that a question can be considered to be hearsay if it contains an implied assertion offered for the truth of the matter.   The court noted that “[t]his approached ensures that the substance of an utterance, not its grammatical form, controls whether the utterance is admissible."

Accordingly, the court ruled that, when a question includes an implied assertion, the question constitutes a statement of purposes of Pennsylvania Rule of Evidence  801(a).   If such a question/statement is offered for the truth of the matter asserted, it is hearsay and generally inadmissible unless an exception to the hearsay rule is implicated.

Obviously, this Pennsylvania appellate court ruling on the Hearsay Rule under the Pennsylvania Rules of Evidence could have an impact in civil litigation matters and, as such, is reported here on Tort Talk.

Anyone wishing to review this Commonwealth v. Parker decision, may click this LINK.