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Saturday, December 12, 2015

Grice v Grice


Sometimes an analysis of ordinary language -- such as Grice propounded -- is based not on ordinary language but LATIN -- although it surely should be allowed Latin to have been ordinary to the Romans!

Grice was an Englishman: if you see an Englishman using Latin (cfr. Shakespeare, and his 'better Latin' than 'Greek') you have to suspect that there may be a conceptual gap in the Englishman's lexicon.

Is this the case with 'onus probandi' -- and its conceptual analysis?

The fist record of the phrase "onus probandi" is 1722, when in an act for the encouragement of silk manufacture, published in the London Gazette, one reads:

i. The onus probandi shall lie on the exporter, claimer, or owner thereof.

Today's Gazette uses a less heavy lexicon -- and since, the sellings have increased!

The second use is dated 1793, when J. Smeaton, in his narration of Edystone Lighthouse notes that

ii. The onus probandi should be upon me.

This is deictic, and has to do with that infamous lighthouse.

In 1803, in the Philosophical Transactions of the Royal Society, we read:

iii. The onus probandi ought in justice to fall to the share of those who would deny the truth of what we may call a fact.

This more or less entails that the onus probandi should fall on Witters who was always, especially in "Philosophical Investigations" rejecting his earlier views where he would 'hardly' deny the truth of what he there he (and his followers, the Wittgensteinians) call a 'fact'.

In 1842, W. G. Simms in "Beauchampe" notes that

iv. The onus probandi lies with the state.

-- a concept analysed in 'political philosophy'.

In 1885, in the Law Rep: Chancery Div., one reads (if you are into that sort of thing):

v. The onus probandi that the lease was improperly drawn would lie upon him.

In the twentieth century, the old Roman phrase was still in use. Thus, in 1936, one reads in "The Philosophical Review" a section that goes:

vi. The fixing of the onus probandi on those who 'do not wish to believe' in the dogmas.

Why such a fixing is required may be a cause of Grice's 'defense of a dogma', a few years later ("Trust him to rally to the defense of the underdogma," Strawson said -- "and the sad thing is, he rallied ME with him -- their joint "defence" of the 'dogma" that there is an analytic-synthetic distinction was meant to refudiate Quine who had used 'dogma' freely and not Catholically).

In 1964 -- the swinging sixties -- "onus probandi" is still being used (which would delight Cicero). Thus we read in the American Mathematical Monthly:

vii. The onus probandi is not in the scientist who refuses [NOT 'refudiates' -- Speranza] to call a reputed hypothesis false to show that his hypothesis can be saved by some suitable A' ".

-- which is a case of LEGALESE extending to what we may dub the analytic philosophy of science -- as when Popper generally criticised Kuhn for not reconstructing what he sees as the 'scientist''s CRITICAL attitude.

Note that the source is the Mathematical Monthly, and we are never sure if Popper followed Lakatos in thinking of mathematics as a 'science' (Lakatos did his best by titling his essay, "Proofs and refutations: the logic of mathematical discovery" combining two essays by Popper, but Popper was unconvinced).

But LEGALESE is alive and kicking by 1987 and beyond. In 1987, in the American Journal of International [granted] Law, one reads:

viii. The court has long operated with a careful respect for the onus probandi of the Roman and civil law systems.

-- which is something that would endear the American Journal to at least the good ole Romans ("of yesteryear," Geary adds).



Grice v Grice


What is the best conceptual analysis of 'onus probandi'?

To what extent is the conceptual analysis of the ordinary language and 
legalese 'proof' rooted on what the Romans had behind the 'probandi'? How 
'diachronic' should 'conceptual analysis' of "legal proof" be?

In a recent post, re: Grice v Grice, McEvoy was considering 'proof', 
'provable', and 'provability', which may be a good occasion to see if we can 
analyse this, since he is assuming a problem-solving approach that may leave, 
for a Griceian, certain items 'unclarified'.

McEvoy was approaching legal proof from a problem-solving perspective; but 
surely this perspective 'presupposes' a constellation of a conceptual
analysis  (to echo Collingwood). Consider the proof for murder and the proof for
theft  (I'm simplifying legalese). It may be argued that since the
conceptual analysis  of theft includes more elements (or necessary and sufficient
conditions) than  that of murder, the standard of proof would vary. Some legal
philosophers see  this as a paradox but not one that rejects conceptual

There are different conceptual analysis of proof'. The more philosophically
sound (qua legal philosophy) is the one more akin to the conceptual
analysis of  proof in general. But we shall see.

Problem-solving does not feature much in what analytic legal philosophers 
have considered about legal proof; instead, alternative conceptual analysis,
and  rejection of alleged counter-examples have. So one has to proceed 

First we should start with a bit of an axiom.
i. Senses should not  be multiplied beyond necessity.
ii. "Proof" has only one sense.
The idea  that there is 'legal proof' and other types of proof would then
be judged  spurious or tendentious.
LEGALESE has a  further item of cognate vocabulary -- since we should start
with 'linguistic  botanising': "probative". Thus, In reaching the verdict,
the trier of fact has  to assess the so-called "probative value" (or
"probative force") of each  individual item of evidence which has been received at
the trial. 
An analysis of the concept of "probative value" may  play a role at a prior
stage when the judge has to make a ruling on whether to  receive the

In many legal systems, if the  judge finds this "probative value"
(concerning a proposed item of evidence) to  be low and substantially outweighed by
countervailing considerations, such as  the risk of causing unfair prejudice
or confusion, the judge can refuse to let  the jury consider the evidence.
The concept of  "probative value" is sometimes confusingly referred to in
legalese (there is  legalese and there is legalese) "probative force" -- M.
A. E. Dummett would be  delighted: he loved force! The concept of "probative
value" has been analysed in  terms of a likelihood ratio. Evidence
(including hearsay evidence) can be more  or less PROBATIVE depending on the value of
the likelihood ratio. The probative  value of a blood type match may be
1.0:0.5 (or 2:1) as 50% of the suspect  population may have the same blood type
as the accused. But if the blood type is  less common and only 25% of the
suspect population has it, the probative value  of the evidence is now
1.0:0.25 (or 4:1).  The probative value is greater  in the latter than in the
former scenario.

There may be an alternative  conceptual analysis for "probative value". The
probative value of an item of  evidence is assessed contextually. The
probative value of E may be low given one  state of the other evidence and
substantial given a different body of other  evidence. If some evidence shows that
a woman has died from falling down an  escalator at a mall while she was
out shopping, her husband’s history of spousal  battery is unlikely to have
any probative value in proving that he was  responsible for her death. But if
the other evidence shows that the wife had  died of injuries in the
matrimonial home, the question is whether the injuries  were sustained from an
accidental fall from the stairs or inflicted by the  husband. The same evidence
of spousal battery will now have significant  probative value. On this
alternative conceptual analysis, the "probative value"  of an item of evidence E
is NOT measured simply by the objective context-free  likelihood ratio. The
concept of "probative value" is, now, rather, analysed as  the degree to
which E increases (or decreases) the probability of the  proposition or
hypothesis H in support of or against which E is led. The  probative value of E is
defined, conceptually, as any difference between the  probability of H given
E (the posterior probability) and the probability of H  absent E (the prior
probability). The probative value of E = P(H|E)−P(H)P(H|E)  (the posterior
probability) is derived by applying Bayes’ theorem — that is, by 
multiplying the prior probability by the likelihood ratio.

On this second  conceptual analysis, the likelihood ratio does not itself
constitute the  probative value of E, even it is nevertheless a crucial
component -- a necessary  condition -- in the analysis of the concept. A major
difficulty with both  analysis of probative value is that for most evidence,
obtaining the figures  necessary for computing the likelihood ratio is
problematic (Grice's example,  "When did you last see your father?"). 
Exceptionally, quantitative base  rates data exist, as in human blood types.  Where
objective data is  unavailable, the fact-finder has to draw on background
experience and knowledge  to come up with subjective values. With blood types, a
critical factor in  computing the likelihood ratio is the percentage of the “
suspect population” who  has the same blood type as the accused. "Reference
class" is the general  statistical term (as "most grices are extinct,
statistically") for the role that  the suspect population plays in this
conceptual analysis. But how should the  reference class of “suspect population” be
defined? Should we look at the  population of the country -- say, of
Ruritania -- as a whole? Or of the town or  the street where the palace is situated
and the the alleged murder of the King  of Ruritania occurred? What if it
occurred at an international airport where  most the people around are
foreign visitors? Or what if it is shown that both  the accused and the victim
were at the time of the alleged murder inmates of the  same prison? Should we
then take the prison population as the reference class?  The distribution of
blood types may differ according to which reference class is  selected.

Sceptics of mathematical modelling of probative value  emphasise that data
from different reference classes will have different  explanatory power and
the choice of the reference class is open to — and should  be subjected to —
contextual argument and requires the exercise of judgment.  There would
be, contra H. L. A. Hart, no a-priori, purely analytic, way of  determining
the correct reference class.  Some legal philosophers have  proposed
quantifiable ways of selecting, or assisting in the selection, of the  appropriate
reference class. On one suggestion, the court does not HAVE to  search for the
OPTIMAL reference class. A general characteristic of an  adversarial system
of trial is that the judge plays a passive role. It is up to  the parties
to come up with the arguments on which they want to rely and to  produce
evidence in support of their respective arguments. The adversarial  setting
makes the "reference class" problem more manageable as the court need  only to
decide which of the reference classes relied upon by the parties is to  be
preferred. And this can be done by applying one of a variety of technical 
criteria that statisticians have developed for comparing and selecting 
statistical models.

Another suggestion is to use the statistical method  of "feature selection"
instead. The ideal reference class is thus conceptually  analysed as the
intersection of all relevant features of the case, and a feature  is relevant
if it is correlated to the matter under enquiry. E.g. if the amount  of drug
likely to be smuggled is reasonably believed to co-vary with the airport 
through which it is smuggled, the country of origin and the time period, and 
there is no evidence that any other feature is relevant on which data is 
available, the ideal reference class is the class of drug smugglers passing 
through that airport originating from that country and during that time
period.  Both suggestions have self-acknowledged limitations: not least, they
depend on  the availability of suitable data. Now, while statistical methods
have advice to  offer on how courts should judge quantitative evidence, they
do so “in a way  that supplements normal intuitive legal argument rather
than replacing it by a  formula.

The "reference class" problem is not confined to the  probabilistic
assessment of the probative value of individual items of evidence.  It is a general
difficulty with a mathematical approach to legal PROOF, and  that's why it
is of particular interest to the analytic legal philosopher. The  same
problem arises on a probabilistic interpretation of the standard of legal  proof
when a court has to determine whether the standard is met based on all the 
evidence adduced in the case. How does the "reference-class" problem can
arises  in this connection? Let it be that the plaintiff sues Blue Bus Company
to  recover compensation for injuries sustained in an accident. The
plaintiff  testifies and the court believes on the basis of the plaintiff's
testimony, that  the plaintiff was run down by a recklessly-driven bus. It was,
alas, dark and  the plaintiff can NOT really tell whether the bus belonged to
The Blue Bus  Company. Assume that there is evidence which establishes that
The Blue Bus  Company owns 75% of the buses in the capital of Ruritania, where
the accident  occurred, and the remaining 25% is owned by The Red Bus
Company. To use the data  as the basis for inferring that there is p = 0.75 that
the bus involved in the  accident was owned by The Blue Bus Company would
seem to privilege the  "reference class" of "buses operating in the capital of
Ruritania" over other  possible reference classes such as "buses plying the
street in the capital of  Ruritania where the accident occurred" or "buses
operating at the time in  question". I.e. A different "reference class" may
produce a very different  likelihood ratio. It is crucial how the "reference
class" is CHOSEN and this is  ultimately a matter of argument and judgment.
Any choice of a "reference class"  other than the class that shares every
feature of the particular incident, which  is, in effect, the unique incident
itself, is in principle  contestable.

Critics of the mathematisation of legal "proof" raise this  point of the
arbitrariness of the 'reference class' as an example of inherent  limitations
to the axiomatic modelling of probative value. But there is an  alternative:
an explanatory analysis of legal "proof". This explanatory analysis  of
'legal proof' has the advantage of avoiding the "reference class" problem 
because it does not attempt to quantify probative value. Suppose a man is 
accused of killing his wife. Evidence is produced of the man's extra-marital 
affair. The unique "probative value" of the accused’s infidelity can NOT be 
mathematically computed from statistical base rates of infidelity and 
uxoricides. In assessing its "probative value", the court looks instead at how 
strongly the evidence of infidelity supports the explanation of the events put 
forward by the side adducing the evidence and how strongly it challenges
the  explanation offered by the opponent. The prosecution may be producing the
evidence to buttress its case that the accused wanted to get rid of his
wife so  that he could marry his mistress. The defence may be advancing the
hypothesis  that the couple was unusual in that they condoned extra-marital
affairs and had  never let it affect their marriage. How much "probative
value" the evidence of  infidelity has depends on the strength of the explanatory
connections between it  and the competing hypotheses and this is not
something that can be  quantified.

But the disagreement in this debate is not as wide as it  might appear. The
critics concede that axiomatic models for evaluating evidence  in law may
be useful. What they object to is scholarship arguing that such  models
establish the correct or accurate probative value of evidence, and thus  implying
that any deviations from such models lead to inaccurate or irrational 
outcomes. On the other side, it is acknowledged that there are limits to 
mathematical formalisation of evidential reasoning in law and that context, 
argument and judgment do play a role in identifying the "reference class". 

We have thus far concentrated on "probative value" of an individual item 
of evidence. But the conceptual analysis should extend to the TOTAL body of 
evidence presented at the trial. The law assigns the legal "onus probandi" 
between parties to a dispute. E.g. at a criminal trial, the accused is
presumed  innocent; "onus probandi" is on the prosecution to prove that the
accused is  guilty as charged. To secure a conviction, the body of evidence
presented at the  trial must be sufficient to meet the standard of "proof". A
verdict will be  given in favour of the side bearing the "onus probandi" iff,
having considered  all of the evidence, the fact-finder is satisfied that the
applicable standard  of "proof" is met.

Now, the standard of "proof" may receive different  conceptual analyses. On
one such analysis, the standard of "proof" is a  probabilistic threshold.
In civil cases, the standard is the "balance of  probabilities" or, the
"preponderance of evidence". The plaintiff may satisfy  this standard and succeed
in his claim only if there is, on all the evidence  adduced in the case,
more than 0.5 probability of his claim being true. At  a criminal trial, the
standard for a guilty verdict is -- to use a very  'dogmatic' or rather
anti-sceptical turn of phrase which is SO LEGALESE it  hurts: "legal proof beyond

a reasonable doubt". Here the probabilistic threshold  is thought to be
much HIGHER than 0.5, but courts have eschewed any attempt at  authoritative
quantification. Typically a notional value such as 0.9 or 0.95 is  assumed by
the legal philosopher for the sake of his analysis. For the  prosecution to
secure a guilty verdict, the evidence adduced at the trial must  establish
the criminal charge to a degree of probability that crosses this  threshold.
Where there is an intermediate standard of “clear and convincing  evidence”
which is reserved for special cases, the probabilistic threshold is  said
to lie somewhere between 0.5 and the threshold for "proof beyond reasonable 

Some conceptual-analytic legal philosophers employ  decision-theory to
develop a framework for setting the probabilistic threshold  that represents the
standard of legal proof. Since the attention in this area of  the law tends
to be on the avoidance of errors and their undesirable  consequences, it is
convenient to focus on disutility. The expected DISutility  of an outcome
is the product of the DISutility -- the social costs -- of that  outcome and
the probability of that outcome. Only two options are generally  available
to the court. In criminal cases, it must either convict or acquit the 
accused; in civil cases it has to give judgment either for the plaintiff or for 
the defendant. At a criminal trial the decision should be made to convict
where  the expected DISutility of a decision to acquit is greater than the
expected  DISutility of a decision to convict. This is so as to minimize the
expected  DISutilities. If we formulate the conceptual analysis axiomatically,
we  have:

pDag>(1−P)Dci -- where "p" is the probability that the accused  is guilty
on the basis of all the evidence adduced in the case; "Dag" is the 
DISutility of acquitting a guilty person and Dci" is the DISsutility of  convicting
an innocent person. A similar conceptual analysis applies to civil  cases:
the defendant should be found liable where the expected DISutility of  finding
him NOT liable when he is in fact liable exceeds the expected DISutility 
of finding him liable when he is in fact not liable. On this conceptual 
analysis, a person should be convicted of a crime only where p is greater than: 
11+DagDci. A similar conceptual analysis applies in civil cases, except
that the  two DISutilities (Dag and Dci) are replaced by their civil
equivalents, framed  in terms of the DISutility of awarding the judgment to a
plaintiff who in fact  does not deserve it and the DISutility of awarding the
judgment to a defendant  who in fact does not deserve it. On this conceptual
analysis, the crucial  determinant of the standard of "legal proof" becomes the
ratio of the two  DISutilities. In the civil context, the DISutility of an
error in one direction  is deemed equal to the DISutility of an error in the
other direction. Hence, a  probability of liability of greater than 0.5 would
suffice for a decision to  enter judgment against the defendant. The
situation is somewhat different at a  criminal trial: Dci, the DISutility of
convicting an innocent person is  considered far greater than Dag, the disutility
of acquitting a guilty person.  Hence, the probability threshold for a
conviction should be much higher than  0.5.

An objection to this conceptual analysis may be that it is  incomplete, and
that it allows for alleged counter-examples, as Grice would put  it. Thus,
it is not enough to compare the costs of erroneous verdicts. The  utility of
an accurate conviction and the utility of an accurate acquittal  should
also be considered and factored into the equation. This results in the 
following modification of the conceptual analysis for setting the standard of 
legal "proof":

11+Ucg−UagUai−Uci -- where "Ucg" is the utility of  convicting the guilty,
"Uag" is the utility of acquitting the guilty, "Uai" is  the utility of
acquitting the innocent and "Uci" the utility of convicting the  innocent.
Since the relevant utilities depend on the individual circumstances,  such as
the seriousness of the crime and the severity of the punishment, this 
decision-theoretic conceptual analysis of the standard of legal "proof" leads to 
the conclusion that the probabilistic threshold should vary from case to case
--  which should not please all legal philosophers (it pleased H. L. A.
Hart). In  other words, the standard of "legal proof" is flexible or as Hart
has it,  "floating". This conceptual analysis is perceived by some to be
problematic.  First, the conceptual analysis falls short descriptively. The law
is alleged to  require the court to apply a FIXED standard of "legal proof"
for ALL cases  within the relevant category. All criminal cases are governed
by the same high  standard; all civil cases are governed by the same lower
standard. That said, it  is unclear whether fact-finders in reality adhere
strictly to a FIXED standard  of "legal proof" (but this does not mean that
'proof' now has two  senses!).

The conceptual analysis includes a valuational component: it  advances a
claim about what the law OUGHT to be, is DEEMED to be, and not what  it
perhaps alas is. The standard of "legal proof" ought to vary from case to  case.
But this conceptual analysisl faces a second objection. In principle,  civil
litigants have the same two rights that we shall identify. Moral harm 
arises as an objective moral FACT when a person is erroneously convicted of a 
crime. Moral harm is distinguished from, to use McEvoy's favourite adjective, 
"mere" harm (in the form of pain, frustration, deprivation of liberty and
so  forth) that is suffered by a wrongfully convicted and punished person.
While an  accused person does have a right not to be convicted if innocent, an
accused  person does NOT have the right to the most accurate procedure
possible for  ascertaining their guilt or innocence. However, an accused person
does have the  right that a certain weight or importance be attached to the
risk of moral harm  in the design of procedural and evidential rules that
affect the level of  accuracy. An accused person has, further, the right to a
consistent weighting of  the importance of moral harm and this further right
stems from their right to  equal concern and respect. Such a conceptual
analysis carries an implication. It  is arguable that to adopt a "floating"
standard of "legal proof" offends the  second right insofar as it means
treating an accused person differently with  respect to the evaluation of the
importance of avoiding moral harm. This  difference in treatment is reflected in
the different level of the risk of moral  harm to which an accused person is

There is a still another  objection to the "floating" standard of legal
"proof". Fact-finding is a  theoretical exercise that engages the question of
what to believe about the  disputed facts. What counts as "reasonable" for
the purpose of applying the  standard of legal "proof beyond reasonable doubt"
is, accordingly a matter for  theoretical (or as Grice prefers, 'alethic'),
not practical, reasoning. Only  reasons for BELIEF are germane in "alethic"
reasoning. While considerations that  bear on the assessment of utility and
disutility provide rather "practical"  reasons for action, and thus,
analytically, not a reason TO BELIEVE in the  accused’s guilt. Thus, it is
alleged, a decision-theoretical conceptual analysis  cannot therefore be used to
support a variable application of the standard of  legal "proof beyond

reasonable doubt".

Another criticism of a conceptual  analysis of a flexible standard of
"legal proof" is that it would seem that the  maximisation of expected utility is
a criterion for selecting the appropriate  probabilistic threshold to apply
but that it should play no further role in  deciding whether that
threshold, once selected, is met on the evidence adduced  in the particular case. It
is not incompatible with the decision-theoretic  analysis to insist that the
question of whether the selected threshold is met  should be governed
wholly by "alethic" reasons. However, it is arguable that  what counts as good or
strong enough theoretical reason for judging, and hence  alethically
BELIEVING, that something is true is dependent on the context, such  as what is at
stake in believing that it is true. Intuitively, as far as  ordinary
language goes (to stick with Grice's methodology), more is at stake at  a trial
involving the death penalty than in a case of petty shop-lifting. 
Accordingly, there should be stronger "alethic" justification for a finding of  guilt
in a trial involving the death penalty (Grice is killed) than in a case of 
petty shop-lifting (a grice, an extinct Scottish pig, is stolen). The 
conceptual-analytic literature on alethic contextualism and on interest-relative 
accounts of knowledge sd justified true belief can thus be drawn upon to
support  a variant standard of legal "proof".

Behind this criticism to this type  of conceptual analysis is that the
trier of fact has to make a finding on a  disputed factual proposition based on
his alethic BELIEF in the proposition.  This is contentious. It may be
argued that, as far as ordinary language goes,  some beliefs are involuntary. It
would seem that we cannot believe something by  simply DECIDING to believe
it. The dominant view is that beliefs are  context-independent. At any given
moment, we cannot believe something in one  context and not believe it in
another. On the other hand, legal fact-finding  involves choice and decision
making and it is dependent on the context. E.g.  evidence that is strong
enough to justify a finding of fact in a civil case may  not be strong enough to
justify the same finding in a criminal case where the  standard of "legal
proof" is higher. The fact-finder has to base his findings,  allegedly, not
on what he believes but what he accepts. Belief and acceptance  are what
Grice calls 'psychological attitudes". They are different psychological 
attitudes that one can have in relation to a proposition. To *accept* that p is  to
have or adopt a policy of deeming, positing or postulating that p, i.e. of 
including that proposition or rule among one’s premises for deciding what
to do  or think in a particular context.

So perhaps we should go back to an  axiomatic conceptual analysis of 'legal
proof'. Alas, understanding standards of  "legal proof" in terms of
mathematical probabilities has been found to be  controversial. It is said to raise
a number of paradoxes. E.g. The defendant,  Blue Bus Company, owns 75% of
the buses in the capital of Ruritania where the  plaintiff was injured by a
recklessly driven bus and the remaining 25% is owned  by The Red Bus Company.
No other evidence is presented. Leaving aside the  reference class problem
there is a p = 0.75 that the accident was caused by a  bus owned by the
defendant. On the probabilistic interpretation of the  applicable standard of
"legal proof", i.e. the balance of probabilities, the  evidence should be
sufficient to justify a verdict in the plaintiff’s favour.  But lawyers seem to
think that the evidence is insufficient. The puzzle is why  this is so.
Various attempts have been made to solve this puzzle. On one  solution, the
statistical evidence -- the 75% ownership of buses -- is not  CAUSALLY CONNECTED
with the fact sought to be proved (the accident) and as such  cannot
justify belief in or knowledge of the fact (vide Grice "The Causal Theory  of
Perception"). But it is questionable that the court should aim at knowledge  of
the disputed fact and not simply at accuracy in its finding. Another paradox
in the mathematical interpretation of the standard of "legal proof" is the
"conjunction paradox". To succeed in a civil claim or a criminal
prosecution,  the plaintiff or the prosecution will have to PROVE the facts -- or
"elements,"  as legalese goes (legalese can be corpuscularianistic) -- that
constitute the  civil claim or criminal charge that is before the court.
Imagine a claim under  the law of negligence that rests on two elements: a breach
of duty of care by  the defendant (element A) and causation of harm to the
plaintiff (element B). To  win the case, the plaintiff is legally required to
PROVE "A and B". Let "A and  B" be mutually independent events. Suppose the
evidence establishes "A" to a p =  0.6 and "B" to a p = 0.7. On the
mathematical interpretation of the standard of  "legal proof", the plaintiff should
succeed in his claim since the probability  with respect to each of the
elements exceeds 0.5. However, according to the  multiplication rule of
conventional probability calculus, the probability that  "A and B" are both true is
the product of their respective probabilities. In  this example, p s only
0.42 (= 0.6 x 0.7). Thus, the overall probability is  greater that the
defendant deserves to win than that the plaintiff deserves to  win and yet the
verdict is awarded in favour of the plaintiff. One way of  avoiding this
"conjunction" paradox is to take the position that it should not  be enough for
each "element" to cross the probabilistic threshold. The plaintiff  or the
prosecution should win iff the probability of the plaintiff’s or  prosecution’
s case as a whole exceeds the applicable probabilistic threshold.  So, the
plaintiff should lose since the overall p < 0.5. But this suggested  solution
may not satisfy all. The required level of overall probability would  then
turn on how many "elements" the civil claim or criminal charge happens to 
have. The greater the number of elements, the higher the level of probability
to  which, on average, each of them must be PROVED. This is thought to be
arbitrary  and hence objectionable. As commentators have noted, the legal
conceptual  anaysis of "theft" contains more "elements" than the legal
conceptual analysis  of "murder". Criminal law is not the same in all countries --
never mind  Ruritania. We may take the following as a convenient
approximation of what the  law is in some countries, including Ruritania.

"X has murdered Y" iff  (i) X's act caused the death of Y & (ii) that was
done with the intention of  causing the death.

"X has robbed Y" iff (i) X intends to take Y's  property & (ii) X is
dishones in taking the Y's property & (iii) X  removes Y's property from Y's
possession & (iv) Y lacks consent 

Since the conceptual analysis of the offence of theft contains twice the 
number of "elements" (or necessary and sufficient conditions, or 'throngs',
to  use Grice's jargon) as compared to the conceptual analysis of the offence
of  murder, the individual elements for theft would have to be PROVED to a
much  higher level of probability, in order for the probability of the
"conjunction"  of (i) & (ii) & (iii) & (iv) to cross the overall threshold than
the  individual elements for the much more serious crime of murder. This is 
intuitively unacceptable, even for a thief, if not a  murderer!

Fortunately, there is another conceptual analysis we can bring  in to
resolve the "conjunction" paradox, which, admittedly, moves away from  thinking
of the standard of "legal proof" as a quantified threshold of absolute 
probability. We may analyse it, instead, as a probability ratio. The fact-finder 
has to compare the probability of the evidence adduced at the trial under
the  plaintiff’s theory of the case with the probability of the evidence
under the  defendant’s theory of the case (the two need not add to 1), and award
the  verdict to the side with a higher probability. One criticism of this 
interpretation of the standard of "legal proof" is that it ignores, and does
not  provide a basis for ignoring, the margin by which one probability
exceeds the  other, and the difference in probability may vary significantly for
different  elements of the case.

But one may allege there is a deeper problem with  the probabilistic
conception of the standard of "legal proof", and it is that  there does not seem
to be a satisfactory interpretation of probability that  suits the forensic
context. The only plausible candidate is the subjective  probability
according to which probability is construed as the strength of  alethic belief. The
evidence is sufficient to satisfy the legal standard of  proof on a disputed
question of fact—for example, it is sufficient to justify  the positive
finding of fact that the accused killed the victim—only if the  fact-finder,
having considered the evidence, forms a sufficiently strong belief  that the
accused killed the victim. Guidance on how to process evidence and form 
beliefs can be found in a mathematical theorem known as Bayes’ theorem; it is 
the method by which an ideal rational fact-finder would revise or update his 
beliefs in the light of new evidence. To return to our earlier hypothetical
scenario, suppose the fact-finder initially believes the odds of the
accused  being guilty is 1:1 (prior odds) or, putting this differently, that
there is a  0.5 probability of guilt. The fact-finder then receives evidence
that blood of  type A was found at the scene of the crime and that the accused
has type A  blood. 50% of the population has this blood type. On the
Bayesian approach, the  posterior odds are calculated by multiplying the prior odds
(1:1) by the  likelihood ratio which is 2:1. The fact-finder’s belief in
the odds of guilt  should now be revised to 2:1. The probability of guilt is
now increased to 0.67.  The subjectivist Bayesian theory of legal
fact-finding has come under attack. 

1) ascertainment of the likelihood ratios is highly problematic.
2)  Bayesi's theory is not sensitive to the weight of evidence which,
roughly put,  is the amount of evidence that is available.
3) While Bayes's theorem offers  a method for updating probabilities in the
light of new evidence, it is silent  on what the initial probability should
be. In a trial setting, the initial  probability cannot be set at zero
since this means certainty in the innocence of  the accused. No new evidence can
then make any difference. Whatever the  likelihood ratio of the evidence,
multiplying it by zero (the prior probability)  will still end up with a
posterior probability of zero. On the other hand,  starting with an initial
probability is also problematic. This is especially so  in a criminal case. To
start a trial with some probability of guilt is to have  the fact-finder
harbouring some initial belief that the accused is guilty and  this is not easy
to reconcile with the presumption of innocence.The suggestion  of starting
the trial with prior odds of 50:50 can and has be criticised.
4)  we have thus far relied for ease of illustration on highly simplified—
and  therefore unrealistic—examples. In real cases, there are normally
multiple and  dependent items of evidence and the probabilities of all possible
conjunctions  of these items, which are numerous, will have to be computed.
These computations  are far too complex to be undertaken by human beings. The
impossibility of  complying with the Bayesian model undermines its
prescriptive value.
5)  Bayes's  theory has it the wrong way round. What matters is not the 
strength of the fact-finder’s belief itself. The standard of proof should be 
understood instead in terms of what it is reasonable for the fact-finder to 
believe in the light of the evidence presented, and this is a matter of the
degree to which the belief is warranted by the evidence. Evidence is
legally  sufficient where it warrants the contested factual claim to the degree
required  by law. Whether a factual claim is warranted by the evidence turns
on how  strongly the evidence supports the claim, on how independently
secure the  evidence is, and on how much of the relevant evidence is available to
the  fact-finder, i.e. , the comprehensiveness of the evidence. Some are
against  identifying degrees of warrant with mathematical probabilities.
Degrees of  warrant do not conform to the axioms of the standard probability
calculus. For  instance, where the evidence is weak, neither p nor not-p may be
warranted; in  contrast, the probability of p and the probability of not-p
must add up to 1.  Further, where the probability of p and the probability of
q are both less than  1, the probability of p and q, being the product of
the probability of p and the  probability of q, is less than the probability
of either. On the other hand, the  degree of warrant for the conjunction of
p and q may be higher than the warrant  for either. We can have a  legal
application of a general theory of  epistemology.
6) Research in experimental psychology suggests that  fact-finders do not
evaluate pieces of evidence one-by-one and in the  unidirectional manner
required under the mathematical model. A holistic approach  is taken instead
where the discrete items of evidence are integrated into large  cognitive
structures variously labelled as mental models, stories, narratives  and theories
of the case, and they are assessed globally against the legal  definition
of the crime or civil claim that is in dispute. The reasoning -- vide  Grice,
"Aspects of reason" -- does not progress linearly from evidence to a 
conclusion; it is bi-directional, going forward and backward: as the  fact-finder’
s consideration of the evidence inclines him towards a particular  verdict,
his leaning towards that conclusion will often produce a revision of  his
original perception and his assessment of the evidence.

The holistic  nature of evidential reasoning as revealed by these studies
has inspired  alternative conceptual analyses that are of a non-mathematical
nature.  One alternative, already mentioned, is the explanatory or relative
plausibility  one. This analysis contends that fact-finders do not reason in
the fashion  portrayed by the Bayesian model. Instead, they engage in
generating explanations  or hypotheses on the available evidence by a process of
abductive reasoning or  drawing “inferences to the best explanation”, and
these competing explanations  or hypotheses are compared in the light of the
evidence. The comparison is not  of a hypothesis with the negation of that
hypothesis, where the probability of a  hypothesis is compared with the
probability of its negation. Instead, the  comparison is of one hypothesis with
one or more particular alternative  hypotheses as advocated by a party or as
constructed by the fact-finder himself.  On this approach, the plausibility
of X, the factual account of the case that  establishes the accused’s guilt
or defendant’s liability, is compared with the  plausibility of a hypothesis
Y, a specific alternative account that points to  the accused’s innocence
or the defendant’s non-liability, and there may be more  than one such
specific alternative account.

On this theory, the evidence  is sufficient to satisfy the preponderance of
proof standard when the  best-available hypothesis that explains the
evidence and the underlying events  include all of the elements of the claim.
Thus, in a negligence case, the  best-available hypothesis would have to include
a breach of duty of care by the  plaintiff and causation of harm to the
defendant as these are the elements that  must be proved to succeed in the
legal claim. For the intermediate  clear-and-convincing standard of legal proof,
the best-available explanation  must be substantially better than the
alternatives.To establish the standard of  proof beyond reasonable doubt, there
must be a plausible explanation of the  evidence that includes all of the
elements of the crime and, in addition, there  must be no plausible explanation
that is consistent with innocence. Now, the  relative plausibility theory
itself is perceived to have a number of  shortcomings.
1) the theory portrays the assessment of plausibility as an  exercise of
judgment that involves employment of various criteria such as  coherence,
consistency, simplicity, consilience and more. However, the theory is  sketchy
on the meaning of plausibility and the criteria for evaluating  plausibility
are left largely unanalyzed.
2) Despite the purported utilisation of “inference to the best explanation”
  reasoning, the verdict is not controlled by the best explanation. For
instance,  even if the prosecution’s hypothesis is better than the defence’s
hypothesis,  neither may be very good. In these circumstances, the court must
reject the  prosecution’s hypothesis even though it is the best of
alternatives. One  suggested mitigation of this criticism is to place some demand on
the epistemic  effort that the trier of fact must take (for example, by
being sufficiently  diligent and thorough) in constructing the set of
hypotheses from which the best  is to be chosen
3) While it may be descriptively true that fact-finders  decide verdicts by
holistic evaluation of the plausibility of competing  explanations,
hypotheses, narratives or factual theories that are generated from  the evidence,
such forms of reasoning may conceal bias and prejudice that stand  greater
chances of exposure under a systematic approach such as Bayesian  analysis. A
hypothesis constructed by the fact-finder may be shaped  subconsciously by a
prejudicial generalisation or background belief about the  accused based on
a certain feature, say, his race or sexual history.  Individuating this
feature and subjecting it to Bayesian scrutiny has the  desirable effect of
putting the generalisation or background belief under the  spotlight and
forcing the fact-finder to confront the problem of  prejudice.

But problems are fine, if legal philosophy's problems were all  solved,
legal philosophy, understood as the conceptual analysis of legalese --  as this
legalese is akin to ordinary language (alla Grice or  Hart) -- would be 




Grice, The causal theory of perception, Aristotelian Society.
Grice,  Way of Words
Grice, Aspects of Reason: the John Locke Lectures, Oxford: Clarendon
Hart, The concept of law
Toulmin, Probability, in Flew, "Conceptual  Analysis".

Wednesday, December 9, 2015

Grice v Grice

Grice v Grice

Grice v Grice


Let us analyse the hearsay rule in terms of Grice's concept of meaning (itself analysed in terms of intending).

After all, the alleged problems brought by the 'hearsay rule' are alleged, again, to be mere *language* problems.

The "hearsay rule" merely proscribes the repetition, in court, of any "out-of-court" statement, "p", where "p" is offered to prove the truth of the matter asserted or stated in "p".

Of course, to determine whether a statement, "p", is being offered to prove the truth of the matter "p" asserts, a court needs to determine what the statement "p" means in the first place.

In this respect, applying the "hearsay rule" is similar to interpreting a statute or a contract.

In all these cases, the court interprets a language, alas, at one remove from the context of its utterance (hence "hear-say").

Scholars have long recognised that problems about statutory and contract interpretation are questions about Griceian meaning.

What's more, legal philosophers have effectively used conceptual analysis of a Griceian type to elucidate these and other interpretive questions.

Surprisingly, however, relatively little effort has been made to apply the same Griceian considerations in the conceptual analysis of the "hearsay rule"

Roughly, the concept of "hearsay" is analysed as a "statement", i.e. an utterance where there is "matter stated" or "matter asserted", other than a statement explicitly made by the declarant (hereinafter utterer U) while testifying at the trial or hearing -- when this utterance is offered in evidence to prove the truth of the "matter asserted" -- or the "matter stated" by the assertion or statement.

References of the Griceian type for statutes and contracts may include essays such as Sinclair, Solan, and Tiersma.

We can even quote at least one case of the application of the philosophy of language in terms of implicature in the analysis of the hearsay rule.

Callen uses Grice's "cooperative principle" -- Grice's joke on Kant -- however, as a mere auxiliary aid in understanding the very purpose motivating -- and giving a RATIONALE -- and explanatory adequacy -- to the hearsay rule and also in demarcating the analysis of the concept of "hearsay" from "non-hearsay".

Callen argues that an "out-of-court" statement "p" should be considered as falling under the concept of "hearsay" iff


U offers "p" to establish a piece of reasoning (e.g. "q") that U would have m-intended his addressee A to draw from "p",



an assessment of the degree of accuracy of U's implicit claim of co-operation or helpfulness (as Grice says in his 1964 lectures at Oxford on implicature) is essential to a thoughtful, unprejudiced, fact finder's determination of this piece of reasoning's reliability.

Legal philosophers thus have drawn on insights from the discipline of philosophy of language Grice specifically refers to as "pragmatics" ("do not multiply senses beyond necessity") to offer a way to understand (and surely apply in the real-world) the definition of the concept of "hearsay", as expressed in the federal rules of evidence -- where "matter asserted" is used.

Pragmatics is here understood as that field of philosophy concerned with how we use language in real-world contexts to accomplish various objectives, goals, purposes, or intentions.

By identifying the convention, rule, or, as Grice prefers, 'procedure' that "govern" language usage (as a rational and reasonable activity), pragmatics provides a way to analyse what an utterer U means when U says -- e.g. states -- something, "p", and how meaning is conveyed through his utterance.

Grice distinguishes, with Austin, between, 'by uttering x, U means that p' and 'In uttering x, U means that p', and by sticking with 'by' he has been called a 'perlocutionarist'.

Pragmatics of the Griceian type has then obvious utility for the analysis of the concept of "hearsay"

Grice looms all over the field of pragmatics -- and it actually he supersedes our beloved H. L. A. Hart here (Hart admired Grice too)

Grice's theory of implicature simply revolutionised philosophers's understanding of how they had previously misunderstood Plato's claim that knowledge does not entail belief.

It does!

It is, in a nutshell, Grice's pragmatic conceptual analysis of "mean" (on which his theory of what an U "implicates" rests) that has the greatest import for an analysis of the concept of "hearsay" in the hearsay rule.

The English verb, "to mean" (cognate with German "meinen" and Latin "mentare" and "mentire") is an extraordinarily difficult concept to analyse, even to Grice -- it took him some 30 years to reach some more or less sufficient and necessary conditions.

And some still think that no single theory of meaning has been accepted for all purposes.

The definition of "hearsay" in the federal rule of evidence (Rule No. 801 -- not the first one, and thus hardly the main one!) requires an inquiry into what Grice call "utterer's meaning."

What we offer is a formula for the provision of a conceptual analysis of "hearsay" based on Grice's theory of utterer's meaning.

We can apply this approach both to basic situations and to a number of alleged "hearsay" problems

Ultimately, Grice's analysis facilitates the resolution of even the most intractable "hearsay" issues while effecting the RATIONALE underlying the hearsay rule.

It has explanatory adequacy.

Our conceptual objectives here are twofold.

First, by showing how "hearsay" cases fit into an established philosophical framework, to wit, the Griceian one, we hope to respond to some of the criticism around the prevailing understanding of the hearsay rule.

Just as, traditionally, syntactics is taken to be the study of the combinatorial properties of words and their parts, and semantics to be the study of meaning, so pragmatics is, for Grice, the analysis of language usage, i.e. implicature and disimplicature.

We can describe Griceian pragmatics as the conceptual analysis of the utterer's ability to compute out of sequences of utterances, taken together with background assumptions about language usage, highly detailed inferences about the nature of the assumptions utterer and addressee are making, and the goal or intention for which the utterance is offered as a means.

The notion of conversational implicature is one of the single most important ideas in pragmatics and philosophy in general.


Contrary to some very weak criticism, a conceptual analysis of "hearsay" (in Rule 801, for example) is consistently and rationally applied even to difficult Griceian cases.

Since there is always room for disagreement, we have entitled this: Grice v. Grice.

But we have another, more conceptual, objective.

We are proposing an analysis for the concept of "hearsay" that we hope can assist a Griceian judge (if we find him) in resolving real-world "hearsay" problems -- "outside the Griceian box," as it were.

Specifically, we advsie that judge to be Griceian, and focus on the communicative INTENTION motivating the STATEMENT.

The judge should first recognise that the intention behind the utterance requires a focus on pre-existing understandings (what Grice calls the uncontroversial common ground) between the declarant U and her addressee A.

A pre-requisite to understanding the "hearsay rule" may well to understand some of thehistorical debate about the scope of the rule.

This debate around the hearsay rule has a specific origin: the celebrated nineteenth-century case of Wright v Tatham.

A Dickensian epic that meandered through English courts for the better part of a decade, Wright v Tatham is a suit by an heir at law to recover land from a devisee under a will.

Wright v Tatham turns on the validity of the will, specifically on the testator's sanity, no less (He was called "mad hatter" since his profession was indeed that of a hatter).

As evidence of the testator's sanity, U offers a few letters written to the allegedly insane testator in the years prior to his death.

None of the letters expressly -- or via explicature -- comments on the testator's sanity ("Hey, hatter, you're mad").

But the content of some of the assertions suggested that the letter "utterers" believed the testator was SANE.

This inference -- the letter "utterers" believe the testator was sane -- is then offered as evidence that the testator was, in fact, sane.

The case went all the way to the House of Lords.

The letters were, alas, ultimately declared "inadmissible hearsay" because their relevance depended on the credibility of the non-testifying letter writers, anathema for English law.

We were saying part of our intention is to address some spurious criticism against the analysis of the concept of hearsay' in Rule 801. Some of the essays critical of the hearsay definition in Rule 801, as interpreted by the Advisory Committee should be known by heart, since many of them are pretty bad.

In any case, the Wright v Tatham case laboured through trials and appeals for 8 long years before its final resolution in the House of Lords.

The Wright v Tatham case had began in 1830 at the Lancaster Spring assizes but was resolved in 1838 in the House of Lords.

Two letters, one from the testator's cousin in Virginia discussing family matters and one letter from a local vicar asking the testator to arrange for his attorney to resolve a dispute between the decedent and the township are among those forming the heart of the Wright v Tatham case.

The letters ARE "hearsay" because the fact finder is being asked to trust the memory, perception, narrative capacity, and sincerity of the letter writers, without the benefit of cross-examination.

Wright  v Tatham may be known best for a hypothetical suggested in dicta by Parke, the author of the most influential opinion.

**************************** PARKE'S SHIP ******************************

Parke posits a hypothetical in which the sea-worthiness of a ship is at issue.

As evidence of sea-worthiness of the ship, a party calls a witness to testify that the ship's captain inspected it at the dock and then boarded with his family.

Parke concludes that the witness's testimony in that situation would fall under the concept of "hearsay".


Well, first, because the captain is in effect testifying to the sea-worthiness of the vessel.

Second, because the fact-finder is being asked to rely on the captain's perception, memory, and sincerity without the benefit of cross-examination.

For both the letters actually offered in Wright and the ship-captain hypothetical given in dicta, the fact finder is asked to make what has described as a "two-step inference."

1. From U's conduct -- writing a letter proposing a business transaction and boarding a ship -- the fact finder is asked to infer U's BELIEF (or Lockean idea) about some REAL-WORLD condition -- in the sanity of the letters's addressee and the seaworthiness of the ship.

Based on that belief, the fact finder is then asked to infer that the real-world condition existed.

Grice, following the Kiparskys, calls this 'factivity'.

i. The addressee of the letter is sane.
ii. The ship is sea-worthy.

The evidence -- now packaged under the heading"implied assertions"-- is however problematic to some legal philosophers because its validity turns on the un-cross-examined belief of U.

Parke's treatment has informed the debate about the definition of the concept of hearsay for over 150 years.

Parke posited other hypotheticals as well; to wit:

(1) a proof that under-writers have paid the amount of the policy
------------ as evidence of the loss of a ship.

(2) proof of payment of a wager.
---------------  as evidence of the happening of the event that was the subject of the bet.

(3) precautions taken by a family
----------------- to show that the person involved was insane

(4) the election of a person to office
---------------- as evidence of sanity.

(5) proof that a physician allowed a will to be executed
--------------- as evidence of the testator's competency.

See also the symposium on hearsay and implied assertions: how Would (or Should) the Supreme court decide the Kearley case?

Wright represents what we may dub the "common law" analysis of the concept of "hearsay" at least until the beginning of the twentieth century.

Courts and commentators of that era typically eschewed formal conceptual analysis in favour of a loose, if still conceptual, approach to "hearsay", focusing on the importance of the cross-examination of any witness.

This hearsay symposium, incidentally, addresses the problem of implied assertions and features, among others, Allen, Berger, Callen, Friedman, Kirkpatrick, Kuhns, Mosteller, Mueller, Park, Scallen, Seidelman, and Swift.

C. Callen goes on to describe in some detail four models for dealing with the "implied assertion" problem. Grice's is just MODEL I:

MODEL I: Grice's communicative intention-based model.

MODEL II: the explicitness-based model.

MODEL III: the dangers-based model -- cfr. Popper on problem-solving.

MODEL IV: the system-based model.

It is not clear how seriously courts took the hearsay rule against hearsay PRIOR to Wright v Tatham.

In his thorough study of the history of evidence law, "The rise of modern evidence law", T. Gallanis concludes that, as of the mid-1700s, the hearsay bar was seldom enforced.

The concept of "hearsay" occupies much of the modern law of evidence.

Until 1755, it was accepted almost without comment.

Even in the years immediately preceding Wright v Tatham, some decisions applying "the hearsay rule" engage, alas, in little or no analysis of the concept of "hearsay".

Foote v. Hayne admits a gone item of apparent hearsay and excludes another, without explanation.

On the other side of the pond, American courts which did apply the concept of "hearsay" generally avoided offering any analysis of the concept at all, working instead from the assumption that the hearsay character of the evidence was inescapable.

Thus, Insurance Company v. Mosley discusses admissibility of statements of physical condition and state of mind without offering an analysis of the concept of "hearsay".

Nicholls v. Webb analyses several hearsay issues, including declarations against interest and business records, but states only that the general objection to evidence, of the character of that now before the court, is, that it is in the nature of "hearsay", and that the party is deprived of the benefit of cross-examination.

Those courts that offered more were extremely conclusory.

In the case of Melius v. Houston, a witness is not be permitted to testify to facts of which he has no knowledge, and of which he is informed by the statements of others not parties to the suit.

In Salmon v. Orser, the declaration of a third party, out of court, not examined as a witness, is not evidence of the fact stated in such declaration. It is "mere" hearsay (to use McEvoy's favourite adjective).

The first great evidence treatise writer, S. Greenleaf in "A treatise on the law of evidence", goes to analyse the concept of "hearsay" as evidence which does not derive its value from the credit to be given to the witness himself but rests in part on the veracity and competency of some OTHER person.

The United States supreme court adopts Greenleafs terminology almost verbatim in Hopt v. Utah, whose credibility was at issue.

This approach, however, allows for essentially pretty "ad hoc" judgements based on a range of credibility concerns, freeing courts either to take the hearsay rule to its Wright v Tatham-inspired limits, or to apply it more narrowly.

In the twentieth century, the credibility-based approach embodied by Wright v Tatham began to fall out of favour. At the same time, Grice was growing.

The "reformist" trend, with its emphasis on black-letter rules, emerges in the law of evidence as in other common-law disciplines.

Relying on Wigmore, courts find a concise analysis of the concept of "hearsay".

The concept of hearsay is analysed as extra-judicial utterances offered to prove the truth of the "matter asserted" or "matter stated".

It is found indispensable, as a test of truth, that every living witness should, if possible, be subjected to the ordeal of a cross-examination, that it may appear, what were his powers of perception, his opportunities for observation, his attentiveness in observing, the strength of his recollection, and his disposition to speak the truth.

The original motivation or RATIONALE for "the hearsay rule" is that the statements of the out-of-court declarant U are made in the absence of a Kantian oath.

Gallanis explains hearsay rationales in the eighteenth and nineteenth centuries.

By the beginning of the nineteenth century, that rationale was subordinated to one focusing on the absence of cross-examination.

Although frequently cited by nineteenth-century treatise writers, Wright v Tatham escaped significant critical analysis for decades.

C. McCormick (in "The borderland of hearsay") notes the absence of judicial analysis of Wright v Tatham.

Most authorities simply ignore Wright v Tatham's suggestion that NON-assertive conduct (or something which is NOT a statement) can be hearsay and elided the alleged "implied assertion problem" (the addressee of the letters is not insane) presented by the letters.

Greenleaf notes that the hearsay rule rejects all hearsay reports of transactions, whether verbal or written, given by persons not produced as witnesses.

M. Phillipps and T. Arnold in "A treatise on the law of evidence" approvingly cite Wright v Tatham's holding with respect to letters, but implying that courts in England did not extend the holding to NON-assertive conduct.

In practice, an enormous amount of allegedly "implied-assertion" evidence almost certainly came in without judges or lawyers recognising the potential hearsay issue.

American courts have generally dealt with the problem of whether non-assertive conduct falls under the concept of "hearsay" by failing to recognize that such conduct might present a hearsay problem.

See: M. Ariens, "Progress is our only product: legal reform and the codification of evidence.

Fitzgerald v. State quotes J. Wigmore, "A treatise on the Anglo-American system of evidence in trials at common law".

Ironically, Wigmore refuses to offer a formulaic definition (never mind analysis) of the concept of 'hearsay'.

Wigmore merely states that "the hearsay rule" signifies a rule rejecting assertions, offered testimonially, which have not been in some way subjected to the test of cross-examination.

Over the next half century, the "truth-of-the-matter-asserted" definition became internalised in the common law of evidence.

With the passage of the federal rules of evidence, "hearsay" is axiomatically codified.

Under federal rule of evidence 801, the concept of "hearsay" is analysed as a statement, p, other than one made by the declarant U, while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted in p.

The substitution of a single, concise rule for a vague, conceptual principle necessitated some line drawing on the difficult issues presented by Wright v. Tatham.

Although influential commentators praised Wright v Tatham for its intellectual integrity, few wanted a hearsay rule as broadly exclusionary as Wright v Tatham seems to require.

Furthermore, courts defining "hearsay" in truth-of-the-matter-asserted terms increasingly held that Wright-type evidence was NOT hearsay.

In discussing statements that are not hearsay, such as verbal acts, Wigmore states that if an extra-judicial utterance IS offered which is not as an assertion to evidence the matter asserted, without reference to the truth of the matter asserted, the hearsay rule should not apply.

This is the language courts adopt.

A handful of reported decisions use the phrase "truth-of-the matter-asserted" to refer to "hearsay" prior to the publication of Wigmore's treatise.

Vietor v. Spalding endorses a definition centered on the "truth-of-the-matter-asserted" formula which appeared in the ill-fated model code of evidence and in the slightly more successful uniform rules of evidence.

"Hearsay" is evidence of a statement which is made other than by a witness while testifying at the hearing offered to prove the truth of the matter stated.

This was never adopted in any jurisdictions

A "hearsay statement" is a statement of which evidence is offered as tending to prove the truth of the matter M-INTENDED to be asserted or stated.

The formula got its real boost, however, from C. McCormick, who used it in his treatise, "HANDBOOK OF THE LAW OF EVIDENCE".

"Hearsay" is evidence or testimony in court or written of a statement made out of court where such statement being offered as an assertion to show the truth of matters asserted therein, and thus resting for its value upon the credibility of the out-of-court asserter.

A series of West Law searches show that in the decade from 1945 through 1954, the year McCormick's treatise was published, 18 reported decisions of state and federal courts use some variation of "truth of the matter asserted" to analyse the concept of hearsay.

In the decade following the publication of McCormick's treatise, the number of reported decisions using that formulation more than tripled, to 65.

In the following decade, coincidentally leading up to the promulgation of the federal rules, the number more than tripled again, to 231 reported decisions.

In "Hearsay and Non-Hearsay", E. Morgan proposes an analysis of the concept of "hearsay" that would include evidence offered for a two-step inference within the scope of the hearsay rule but admit it under an exception in most cases.

The best known "implied assertion" cases have been those involving telephone orders

These trends forced the codifiers of the federal rules of evidence to decide how evidence offered for the two-step inference should be treated under their analysis of the concept of 'hearsay'.

The drafters easily dispense with the issue of non-assertive conduct -- Baron Parke's ship captain hypothetical.

They accomplished this by incorporating into Rule 801 the following definition of a "STATEMENT" as:

(1) an ASSERTION (oral or written) or
(2) non-verbal conduct of a person, if it is m-intended by the utterer as an ASSERTION.

By providing that conduct can qualify for "hearsay" treatment only if it is m-intended as an assertion, the analysis unambiguously removes non-assertive conduct offered for the two-step inference from the scope of the "hearsay rule".

The rule is not as clear with respect to verbal assertions offered for the two-step inference, as in the letters in Wright v. Tatham.

In the notes following Rule 801 however the advisory committee expresses its intention to treat verbal assertions as NOT hearsay when offered for the two-step inference.

It did so by explaining WHY non-assertive conduct is NOT hearsay.

Modern cognitive research teaches that problems of mis-perception and poor memory are placed to a gambling or drug-dealing operation and offered in evidence to prove the nature of the business.

Statements of this type are directly analogous to the letters offered in Wright v Tatham.

Yet, most American courts hold that they are NOT hearsay because they are not offered for the truth of the matter asserted.

Rather they are offered for the mere fact that they were made.

Vid: People v. Reifenstuhl; State v. Tolisano; Friedman v. State; "Annotation: admissibility of evidence of fact of making or receiving telephone calls".

The uncertainty stems from the placement of the phrase "if it is m-intended as an assertion" in the definition of "statement" qua assertion.

Because this phrase comes immediately after the portion of the analysis referring to nonverbal conduct, it modifies only that portion of the analysis.

(See D. Seidelson, "Implied assertions and federal rule of evidence 801: a quandary for federal courts").

On the other hand, the advisory committee interprets the final phrase to modify the entire conceptual analysis, thus bringing oral and written assertions within the definition only to the extent that they are intended as assertions.

See P. Rice, "Should unintended implications of speech be considered non-hearsay? the assertive/non-assertive distinction under Rule 801 of the federal rules of evidence".

According to the advisory committee's interpretation of rule 801, the last clause modifies subsections (1) and (2), thereby excluding from the analysis of the concept of hearsay both conduct and verbal utterances that are offered to prove something other than what the speaker or actor intended to communicate by his conduct or words.

Much more significantly, legal commentators have tended to see the risk of insincerity as the most problematic of the four testimonial infirmities.

Following that line of reasoning, the advisory committee enunciates a rationale for the exclusion of non-assertive conduct grounded in the reduced risk of insincerity associated with that kind of evidence.

Admittedly, nonverbal conduct is untested with respect to the perception, memory, and narration (or their equivalents) of the actor.

But the advisory committee is of the view that these dangers are minimal in the absence of an intent to assert and do not justify the loss of the evidence on hearsay grounds.

No class of evidence is free of the possibility of fabrication, but the likelihood is less with non-verbal than with assertive verbal conduct.

Having spelled out that rationale, the committee added one more sentence.

Similar considerations govern non-assertive verbal conduct and verbal conduct which is assertive but offered as a basis for inferring something other than the matter asserted, also excluded from the definition of hearsay by the language of subdivision.

The committee concludes that the effect of the conceptual analysis of 'statement' is to exclude from the operation of the hearsay rule all evidence of conduct, verbal or non-verbal, not intended as an assertion.

The key to this conceptual analysis is that nothing is an assertion unless intended to be one.

What can be more Griceian than that?

The Committee thus enunciates what might be termed a Griceian "intent-based" approach to the hearsay rule.

The intent-based approach focuses on what the out-of-court declarant intends to assert, and then asks whether that intended assertion has been offered for its truth at trial.

I. Stewart ("Perception, Memory, and Hearsay: A Criticism of Present Law and the Proposed Federal Rules of Evidence") describes psychological studies showing deficiencies in human perception and memory.

R. Park describes the approach in Rule 801 as "assertion-centered," in contrast to the "declarant-centered" approach of the common law ("'I didn't tell them anything about you": implied assertions as hearsay under the federal rules of evidence").

Under an assertion definition, an out-of-court statement is hearsay when offered in evidence to prove the truth of the matter asserted.

Under a declarant definition, an out-of-court statement is hearsay when it depends for value on the credibility of the declarant.

Because an approach focusing on assertions need not rely on intended meaning, we do not use his terminology.

If the statement is offered for something other than its intended assertion, it is not hearsay. Legitimate questions have been raised both about the degree of authority that should be afforded the Advisory Committee's Notes in general 8 and about the validity of the intent-based approach.

For example, a leading critic, David Seidelson, has argued that to draw a distinction between express and implied assertions is "to elevate form over substance and amorphous rules of grammar over the realities of the litigation process.""

Another critic, Paul Rice, has argued that the Advisory Committee's interpretation fails the test of its own logic because it potentially allows evidence bearing the risk of insincerity-an allowance that the approach is designed to prevent.

E. Scallen, in "Interpreting the federal rules of evidence: the use and abuse of the advisory committee notes," evaluates the approaches of Justices Kennedy and Scalia in terms of their respective degrees of reliance on Advisory Committee Notes.

See, e.g., Ronald J. Bacigal, "Implied Hearsay: Defusing the Battle Line Between Pragmatism and Theory".

A return to the foundation of the hearsay rule and a proper emphasis on protecting the right of cross-examination is not only the proper academic approach, it is also the common sense approach and the easiest approach to apply in practice.

M. H. Graham ("Stick person Hearsay": a simplified approach to understanding the rule against hearsay") argues that the hearsay rule should be revised to include any statement whose relevance depends upon the matter asserted being true, without reference to whether a further inference is then going to be drawn.

There is nothing in the legislative history of the Rule to indicate that Congress affirmatively acquiesced in the Advisory Committee's conclusion that [assertive verbal conduct offered as a basis for inferring something other than the matter asserted] should be treated as nonhearsay.").

O. Wellborn in "The Definition of Hearsay in the Federal Rules of Evidence" proposes a revised hearsay rule including all verbal inferred assertions in definition of hearsay.

D. Seidelson, "Implied Assertions and Federal Rule of Evidence 801: A Continuing Quandary for Federal Courts".

As Rice explains, it is illogical to conclude that the question of sincerity is eliminated and that the problem of unreliability is reduced for unintended implications of speech if that speech might have been insincere in the first instance, relative to the direct message intentionally communicated.

If potential insincerity is injected into the utterance of words that form the basis for the implied communication, the implication from the speech is as untrustworthy as the utterance upon which it is based.

Nevertheless, most leading treatises" and recent judicial opinions seem to accept the Advisory Committee's understanding."

As a result, under the prevailing view, Rule 801 draws a line between the risk of sincerity and the other testimonial risks.

Evidence that implicates the sincerity of an out-of-court declarant is potentially hearsay; evidence that does not implicate the sincerity of an out-of-court declarant is not hearsay.

Because evidence offered to prove something other than what the declarant intended to assert-whether the evidence describes verbal assertions or assertive conduct-does not implicate the sincerity of the declarant, it is not hearsay.

See, e.g., KENNETH S. BROUN and WALKER J. BLAKEY, EVIDENCE 136 (3d ed. 2001) ("Under Federal Rule 801 evidence of an out-of-court statement offered to prove an apparent but unstated belief of the speaker (an implied assertion!) for the purpose of proving that the belief is true is excluded from the definition of hearsay.").

CHARLES T. MCCORMICK, MCCORICKONEVIDENCE§ 250, at 382 (JohnW. Strong ed., 5th ed. 1999) ("Ain out-of-court assertion is not hearsay if offered as proof of something other than the matter asserted. The theory is that questions of sincerity are generally reduced when assertive conduct is 'offered as a basis for inferring something other than the matter asserted."')

MUELLER & KIRKPATRICK, supra note 17, § 8.12, at 819

For purposes of the hearsay doctrine, finding the 'matter asserted' leads the court to a subjective inquiry because the term refers to the points declarant intended to express or communicate."); PAUL F. ROTHSTEIN ET AL., EVIDENCE IN A NUTSHELL: STATE AND FEDERAL RULES 390 (3d ed. 1997).

A 'statement' is a verbal or written assertion, and may not be implied except from something intended at the time as a substitute for the statement."); JACK B. WEINSTEIN & MARGARET A. BERGER, WEINSTEIN'S FEDERAL EVIDENCE § 801.1012][c] (Joseph M. McLaughlin ed., 2d ed. 2001) (cites Advisory Committee Note and noting that for any courts have found that words or conduct offered to show the actor's implicit beliefs do not constitute statements under the hearsay rule.


Conduct and oral communications intended to be assertive, but offered to prove something distinct from the fact intended to be communicated, are not hearsay.

But see MICHAEL H. GRAHAM, FEDERAL PRACTICE & PROCEDURE: EVIDENCE § 7001 (Interim ed. 2001) argues that foundation facts that must be assumed to be true for a statement to make sense should be considered part of the "matter asserted..

See, e.g., Quartararo v. Hanslmaier, 186 F.3d 91, 98 (2d Cir. 1999) (finding that an out-of-court statement is nothearsay when it is not offered for an intended assertion); United States v. Jackson, 88 F.3d 845, 848 (10th Cir. 1996) (same); United States v. Ybarra, 70 F.3d 362, 366 n.1 (5th Cir. 1995) (same); United States v. Oguns, 921 F.2d 442, 448-49 (2d Cir. 1990) (same); United States v. Day, 591 F.2d 861,886 (D.C. Cir. 1978) (same); United States v. Zenni, 492 F. Supp. 464, 467-69 (E.D. Ky. 1980) (same); see also Park, supra note 35, at 810-13 (citing cases excludingimplied assertions from the operation of the hearsay rule). But see United States v. Reynolds, 715 F.2d 99, 100 (3d Cir. 1983) (finding that an out-of-court statement assumed to be offered for an implied assertion is hearsay).


The Federal Rules reject the Wright approach on the theory that the risk of lying about a particular subject is greatest when an out-of-court statement is

Unfortunately, the matter does not end there.

Simply saying that only statements offered for their intended assertions can be hearsay does not erase the interpretive issues.

Courts must now identify the assertions in a statement.

Experience has shown this to be an exceedingly difficult task.

To take just one example, assume the police obtain a confession from an injured suspect after getting permission from his doctor to interrogate him. At trial, the prosecution offers the doctor's permission as evidence that the suspect was competent to confess.

Is this hearsay?

It depends on whether the permission was an assertion about the suspect's capacity.

Without a way to recognize assertions that can count as hearsay, there is simply no means of consistently distinguishing hearsay from nonhearsay.

The process of recognizing the assertions in a statement boils down to the determination of meaning.

To know what assertions are intended in an utterance, we must know the meaning of the utterance. While most courts and many commentators have been willing to accept that the Federal Rules cover only intended assertions,' they have often struggled in the search for the meaning of the statement.

Reaching an understanding of the concept of meaning as it is incorporated into Rule 801 is the first step in devising a consistent hearsay methodology. explicitly about that subject. If a conclusion about one subject can be drawn from a speaker's statements on another subject, the chances that the speaker made a false statement about the second subject to create a false impression about the first subject are slight. Id. 43.

Ted Finman ("Implied Assertions as Hearsay: Some Criticisms of the Uniform Rules of Evidence") contends that a hearsay definition nearly identical to that in the Federal Rules of Evidence is unclear because courts still must decide (a) that the actor did intend to assert the proposition his conduct is offered to prove, and thus that the offered evidence is hearsay, or (b) that the actor had no such intent, and thus that the evidence is nonhearsay"), adapting facts from People v. Harrison, and citing treatises and cases endorsing intent-based approach.

In 1976, three men, later identified by police as Lawrence T. ("Beanny") Day, Eric J. Sheffey, and Gregory Williams, robbed a sporting goods store in Washington, D.C., stealing shotguns and personal items from the store's customers."

In the days following the robbery, Williams had a falling out with Day and Sheffey, and became convinced that they were out to get himY Williams told a friend, Kerry Mason, about the robbery and about his fear of Day and Sheffey."

He gave Mason a slip of paper that read

"Beanny, Eric, 635-3135,"

the number being the telephone number for a house where the guns stolen in the robbery were located.

He told Mason that if he, Williams, was not back by 3:00 the next day, Mason should call the police, give them the paper, and tell them what Williams had told him.'

Williams was subsequently shot and killed by Day.

The district court excluded as hearsay both the paper and Williams's accompanying statement in a preliminary hearing before the resulting murder trial.

In an interlocutory appeal, the D.C. Circuit held that the paper should come in and that Mason should be allowed to testify that Williams gave it to him, but that Mason was properly barred from testifying to what Williams told him.

The majority held that the paper should be admitted as circumstantial evidence of an association between Williams, Day, and Sheffey.

It dismissed arguments that the real evidentiary significance of the paper was in the inference the jury could be expected to draw about Williams's belief that Day and Sheffey planned to kill him, finding that information conveyed by the paper was neutral.

Vide: United States v. Day.

Day pleaded guilty to the robbery, Sheffey was acquitted.

Looking only to the surface meaning of the paper, it concluded that the paper was not being offered for anything it asserted, and so was not hearsay.

The words themselves do not assert anything except that Beanny and/or Eric might have a particular telephone number.

The statement is not being offered as proof that Beanny and/or Eric had that telephone number, and hence, we conclude that the statement is not within the definition of hearsay evidence

The dissent took a very different approach to the meaning of Williams's note.

Instead of evaluating the note outside the context of its creation and transmission-its "utterance" in linguistic terms -- the dissent looked at the intention motivating the words on the paper.

The dissent concludes that the note was intended as a message from Williams to the police to the effect that, should he die, Beanny Day and Eric Sheffey were his probable killers.

In other words, the note meant

"I believe Beanny and Eric plan to kill me and in the event of my demise, evidence against them can be found at the following phone number."

The dissent argues that the evidence would be irrelevant if offered for any purpose other than to prove that meaning.

Accordingly, in the dissent's view, the note was meaningful.

The majority opined that if the writing on the slip contained a statement to the effect that 'I am afraid I will be killed by Eric and Beanny', we would not characterize the information as neutral.

The risk that the jury would draw an inference about Williams's fear was precisely what motivated the court to exclude Williams's statement to Mason accompanying the paper.

The hearsay danger posed by Williams's statement to Mason is that the jury might conclude from the statement that Day bore ill will toward Williams and had reason to cause him harm.

The jury might infer from the slip, apart from the statement, that Williams was associated with defendants.

That is a permissible inference since there is nothing in the slip of the paper itself that would lead the jury to conclude that defendants had a reason to kill Williams.

Of course, his belief that Day and Sheffey were out to get him is exactly what Williams intended the note to convey.

The court's superficial analysis of the note allowed it to elide the hearsay problem the note presented.

It could only be offered for the truth of Williams's assertion and would thus be hearsay.

Although they surely did not realize it, the judges writing in Day were engaged in a classic debate about meaning.

The two authors adopted the two primary approaches to meaning delineated by linguists and language philosophers.

The first of these, and the one favored by the Day majority, is linguistic meaning.

Linguistic meaning is a semantic concept referring to the meaning a lexical form has outside the context of its utterance. 3

When statutory interpretation theorists refer to "plain meaning" or "textualism," they are referring to linguistic meaning. Although this has allure one has to be careful.

Similar disputes about meaninghave beset other legal disciplines, most prominently the law of contracts.

In re Soper's Estate, 264N.W. 427 (Minn. 1935), is a representative case.

In In re Soper, the decedent had faked his suicide several years before his death in order to escape his wife and marry another woman.

He then took out a life insurance policy naming his "wife" as beneficiary.

When he died, both women laid claim to the proceeds.

The majority held the proceeds were properly paid to the second woman, to whom the decedent apparently intended them to go.

The dissenting judge argued that the first woman-the decedenfs legal wife-should receive the proceeds.

A man can have only one wife.

The contract in this case designates the wife' as the one to whom the money was to be paid.

I am unable to construe this word to mean any one else than the only wife of Soper then living.


Three approaches to linguistic meaning have dominated the philosophy of language.

One account takes the position that meaning lies in the relationship between the lexical form and the real-world item to which the form refers.

The most influential proponent of this view of meaning was the German philosopher Gottlob Frege.

The core of Frege's philosophy of meaning was the distinction he drew between "sense" and 'reference." For Frege, "sense" described the objective meaning of a language fragment for those who understand the language. "Reference" described the item in the world to which the language fragment refers. Gottlob Frege, On Sense and Meaning (1892), reprinted in THE PHILOSOPHY OF LANGUAGE 200 (A.P. Martinich ed., 1985).

One major problem with this account, which is often called "referential" or "denotational," is that many words, like "and" or "because," do not refer to any tangible item in the world.

Another account treats meaning as lying in the ideas we conjure in our minds to give content to symbols. E.g. , John Locke, An essay concerning humane understanding (A.D. Woozley ed., Meridian Books 1969) (1689).

The problem with this account, sometimes called "mentalist," is that our ideas are subjective abstractions, leaving the theory without any explanation of the apparent commonality of understanding among speakers of a language.

This was the basis for Frege's attack on Locke.

The third account, which has come to dominate theories of linguistic meaning, defines meaning in pragmatic terms, as a product of the uses of the language within a given community of speakers.

See Ludwig Witters, "Philosophical Investigations", tr. G.E.M. Anscombe.

The meaning of a word is its use in the language.

Linguistic meaning lies in its promise of objective, literal determinations of meaning, virtually all linguists now recognize that meaning does not inhere in language.

It is, instead, a product of the conventions of the community using the language.

Understanding the meaning of the words of a language means understanding the conventions governing the possible uses of the words.

Interpreting the linguistic meaning of a language fragment involves supplying the most salient conventional use of the language.

The second type of meaning, which the dissent in Day relied on, is speaker's meaning.

Speaker's meaning refers to the import a sentence has when it is uttered in a given context.

It is a function of the speaker's intention.

When a speaker uses language in its direct, "literal" sense, speaker's meaning corresponds with linguistic meaning.

But often people use language indirectly to communicate meaning that does not correspond to linguistic meaning.

An example of how speaker's meaning can diverge from linguistic meaning is the sentence

i. Can you reach the salt?

The linguistic meaning of this sentence is an inquiry into whether an unspecified hearer has the physical ability to grasp the salt.

But when uttered in a particular context, for example at a dinner table, the sentence has a speaker's meaning of a request to a dinner partner to retrieve the salt and give it to the speaker.

The meanings of the basic expressions are conventional, and arbitrary except for the vagaries of history.

"Literal meaning" can be analysed in terms of usage conventions.

Linguistic meaning is thus sometimes referred to as"conventional meaning."

See Law and Linguistics Conference, comments of Michael Geis).

See GENNARO CHIERCHIA& SALLYMCCONNELL-GINET, MEANING AND GRAMMAR, AN INTRODUCTIONTO SEMANTICS 149-51 (1990) distinguishes speaker's meaning from linguistic meaning.

A variety of terms are used to refer to the phenomena of "speaker's meaning" and "linguistic meaning."

Utterer's meaning is sometimes referred to as "conveyed meaning" and linguistic meaning is referred to as "sentence meaning" or "literal meaning." See LEvINSON, supra note 4, at 17-18. 67.

See CHIERCHIA & MCCONNELL-GINET. See Michael L. Geis, "The Meaning of Meaning in the Law".

In many cases, the distinction between linguistic meaning and speaker's meaning has little or no significance, because they are equivalent.

When a person uses language "literally," she intends to communicate what the conventional meaning of her words would indicate.

Speaker's meaning and linguistic meaning differ primarily in the cases of metaphor, sarcasm, exaggeration, understatement, and related discursive techniques.

As Day shows, however, the class of utterances in which linguistic meaning and speaker's meaning diverge is large enough to have significant hearsay ramifications.

To resolve hearsay problems in a consistent fashion, an approach to meaning in Rule 801 must be specified.

The modem hearsay rule as encapsulated in Rule 801 is premised on the notion that the risk of insincerity is the predominant testimonial concern.

The rule covers only intended assertions because people generally do not lie about things they do not intend to talk about.

Given this background, the rule makes sense only if it is interpreted to require a search for the speaker's intended meaning.

Deception is an intentional act.

 It is the act of wanting an audience to believe a proposition, p, when the speaker believes a contrary proposition, not-p.

If a person does not intend to produce a belief in another person about a matter, then there is no danger of insincerity with respect to that matter.

For hearsay purposes, we can rule out statements not bearing a risk of insincerity if we can identify those matters about which a speaker intends to produce a belief in his audience.

U's intention regarding the beliefs produced in his audience is the dispositive factor in speaker's meaning. By providing a mechanism for evaluating the speaker's communicative intent, See CHIERCHIA & MCCONNELL-GINET, supra note 66, at 148-63, describing relationship between linguistic meaning and speaker's meaning.

See Philip R. Cohen & Hector J. Levesque, Rational Interaction as the Basis for Communication, in INTENTIONS IN COMMUNICATION 230 (Philip R. Cohen et al. eds., 1990)

Insincerity involves wanting others to come to believe false things and is a notion independent of language.

Utterer's meaning offers an avenue for effectuating the purposes behind the modern hearsay rule.

Linguistic meaning, in contrast, bypasses the speaker's subjective intention in favor of a search for the most conventional "literal" meaning of the words used.

Because it ignores the declarant's intentions in uttering a statement, the use of linguistic meaning disregards the rationale behind the switch from a definition based on credibility concerns to a definition based on sincerity concerns.

Furthermore, linguistic meaning's promise of simplified, objective interpretations is illusory.

First, linguistic meaning is always subject to the possibility of ambiguity.

Ambiguity can take two forms, lexical or syntactic.

Lexical ambiguity refers to words that have multiple meanings, such as "bank" or "duck."

Syntactic ambiguity refers to the multiple meanings that can arise as a result of the syntactic structure of a sentence.

The sentence

iii. Flying planes can be dangerous.

is an example.

(iii) can mean either that it can be dangerous to fly a plane or that planes can be dangerous in flight.

As a result of the potential for ambiguity, language fragments, whether at the sentential or subsentential level, often have multiple linguistic meanings.

Typically the only way to identify the "correct" meaning of a particular utterance is to evaluate the situation-specific context of utterance.

That looks very much like a slide into speaker's meaning. 73. Anumberofinfluential commentators have argued that Rule 801 requires an inquiry into the declarant's intended meaning rather than a literalist interpretation. MUELLER and  KIREPATRICK advocate analysis of declarants subjective communicative intent.


We believe that a statement should be treated as hearsay whenever it is offered to prove the truth of either an express or implied assertion, so long as the trial judge finds that the declarant intended to communicate that assertion when he made the statement.

When deciding whether a statement is hearsay for a particular purpose, courts should recognize that propositions the speaker generally intends the hearer to understand from the communication should be part of an assertion for purposes of the hearsay rule.

Paul S. Milich, Re-Examining Hearsay Under the Federal Rules: Some Method for the Madness, 39 U. KAN. L. REV. 893, 907 (1991)

Intent to communicate is the key to distinguishing between hearsay and nonhearsay under the federal definition.

CHIERCHIA & MCCONNELL-GinT, supra note 66, at 32 describes lexical and syntactic ambiguity). 75. Id. 76. Id.

Second, linguistic meanings are neither perspicuous nor stable. Linguists refer to this problem as vagueness.

Even the most straightforward terms, like "chair," have uncertain applications.

At some width a chair becomes a loveseat, and the transition will occur at different points for different people.

The problem of vagueness is well-known to legal scholars familiar with postmodernist attacks on the cult of plain meaning.

As Stanley Fish has persuasively argued, all language is subject to interpretation.

There is no such thing as "objective" literal meaning, even for the simplest terms.

That does not mean that it is useless to talk about linguistic meaning.

It does mean, however, that linguistic meaning is inherently uncertain and malleable.

At best, we can hope to find paradigm cases, or prototypes; that is, when interpreting the word "chair" we can consciously choose to apply the term to items that we think most members of the relevant linguistic community would consider a chair.

Finally, literalism does not avoid the search for a communicative intention motivating the interpreted statement, it just relocates it.

To understand a statement, an interpreter must always assume the existence of an intentional actor making the statement.

In an 77. Id. at 81-82. 78. Id. 79.

See generally STANLEY FISH, IS THERE A TExT IN THIS CLASS? (1980) argues that texts are not stable and that interpretation is constrained by interpretive communities).

One of the most influential language philosophers to recognize the problem of the instability of meaning is Kripke.

Kripke denies the possibility of sentences being true or false.

He argues that meaning is best understood as reflecting the acceptable uses of language within a linguistic community.

Saul Kripke, On Rules and Private Language, in SAUL A. KIPKE, WrITGENSTEIN ON RULES AND PRIVATE LANGUAGE (1982), reprinted in THE PHILOSOPHY OF LANGUAGE 479, 488-89 (A.P. Martinich ed., 1985).

Philosophers implicitly recognize Kripke's skepticism-as well as his solution to the skeptical dilemma-when they speak of linguistic meaning as conventional meaning.

The imprecision of language has not escaped the great legal minds.

As Justice Holmes said, a word is not a crystal, transparent and unchanged, it is the skin of a living thought and may vary greatly in color and content according to the circumstances and time in which it is used.

Towne v. Eisner, 245 U.S. 418, 425 (1918). 81.

See CHIERCHIA & MCCONNELL-GINET, supra note 66, at 82.

Larry Solan has pointed out that in the interpretation of statutes, many judges do not even rely on prototype analyses, instead using dictionary definitions that sometimes produce highly questionable results.

Solan argues against textualism in statutory interpretation because textualism excludes important evidence of context that provides clues to the legislature's intended meaning. Id. 82. See STANLEY FISH, DOING WHAT COmS NATURALLY 100 (1989) ("One cannot

In the immediate case, the actor is apparent and the actor's intentions often can be gleaned from context.

But where a statement is removed from the context of its utterance, an interpreter must supply an intention motivating the statement.

This is often a subconscious step.

As a consequence, even plain-meaning interpretation requires an inquiry after an authorial intention.

Rather than seeking the specific intention of the actual speaker, however, plain meaning supplies an intention based on the interpreter's personal, often subconscious, judgments about the likely intention motivating the utterance.

Interpreters who believe they are being objective are merely applying what to them appears to be the most obvious conventional meaning.

Debunking the literalist objectivity myth will accomplish very little if nothing emerges to take the place of plain meaning.

If we cannot find a way to define and identify the declarant's intended meaning, we may as well let judges speculate under the guise of plain-meaning interpretation.

To date, efforts by those commentators who espouse an intent-based approach to meaning to solve this problem have met with little success.

For example, in their understand an utterance without at the same time hearing or reading it as the utterance of someone with more or less specific concerns, interests, and desires, someone with an intention.

See Law and Linguistics Conference, supra note 64, at 859 (comments of Jerrold Sadock)

Whether you pretend to or not, you will always import ideas of intent and purpose in the interpretation of words to try to find out what the actual sentence meaning is.

Chief Justice Traynor of the California Supreme Court indicted judicial reliance on plain-meaning interpretation in the seminal parol evidence case Pacific Gas & Electric Co. v. G.W. Thomas Drayage & Rigging Co., 442 P.2d 641 (Cal. 1968).

When a court interprets a contract without examining contextual evidence, it determines the meaning of the instrument in accordance with the "... extrinsic evidence of the judge's own linguistic education and experience.

The exclusion of testimony that might contradict the linguistic background of the judge reflects ajudicial belief in the possibility ofperfectverbal expression.

This belief is a remnant of a primitive faith in the inherent potency and inherent meaning of words. Id. at 643-44

See MUELLER & KIRKPATRIC, supra note 17, § 8.12, at 820-21. Professors Mueller and Kirkpatrick advocate the use of the declarant's subjective intent, and offer a "broad idea of intent" and a "narrow idea of intent." Id But their discussion of examples is largely conclusory.

They do not provide a mechanism for identifying communicative intention, instead declaring that, through examination of contextual information, it should be possible for courts competently to assess declarant's subjective intent.

An exhaustive Federal Rules of Evidence Manual, Stephen Saltzburg, Michael Martin, and Dan Capra advocate an intent-based approach to Rule 801, recognises the difficulty in determining communicative intention.

To solve the dilemma, they propose an "objective, rather than subjective, test of intent.

But they then explain their test as asking whether a reasonable person making a statement such as the declarant made would have intended to communicate the implied assertion that the proponent is offering for its truth.

The problem with that test is that it begs the question of communicative intent.

Casting the declarant as a reasonable person does not solve the basic dilemma.

What does it mean to intend to communicate an assertion?

Certainly, judges and juries lacking omniscience, any investigation will have to rely on objective evidence of what the declarant, or a reasonable person posing as the declarant, intended to communicate.

The problem remains, however, of defining the speaker's meaning so that we know which evidence of communicative intention is relevant.

These questions lie at the heart of the confusion surrounding the Rule 801 definition of hearsay.

The rule can seem arbitrary because of the absence of a cogent formula for identifying the assertions that are intended in a statement.

As a result, those who are willing to retain the rule as drafted often favor misleading plain-meaning interpretations as an easy way out.

Even those who desire an approach more consistent with the purposes motivating the rule often end up back at linguistic meaning because they lack a definition of speaker's meaning.

Pragmatics offers a definition of speaker's meaning that points the way out of this thicket.

Utterer's meaning, unlike linguistic meaning, is concerned with the speaker's goals in issuing a certain utterance.

It explicitly addresses the situation-specific context of utterance. By concentrating on the communicative intentions of the speaker, it holds the 86.

SALZBURG, MARTIN, & CAPRA, supra note 73, at 1472.

Here is some indeterminacy in the application of any intent-based test.

Utterer's meaning offers a promise of an escape from problems of ambiguity and vagueness.

The interpreter of speaker's meaning accepts that words and sentences can have multiple meanings and looks for meaning in what the speaker intended to accomplish in uttering particular words and sentences.

Although different theories of linguistic meaning have proliferated, one definition of speaker's meaning has dominated for four decades.

Although not without its detractors, Grice's theory of speaker's meaning, or, in his terminology, utterer's meaning, has been widely accepted as the standard.

The heart of Grice's theory appears in his 1948 essay Meaning.

He begins his analysis by distinguishing between two types of meaning, "natural" and "non-natural [sic]. (The thinks the use of 'artificial' is artificial).

Natural meaning describes situations in which the existence of some condition entails the existence of another condition.

In contrast, non-natural meaning is the product of human social convention." Consider the following uses of the concept of meaning-

i. Screeching tires MEAN a car is stopping suddenly.

ii. A red light MEANS cars must stop.

In the first example, what is "meant" necessarily follows from the observed fact. Tires screech when a car stops suddenly as a result of the natural operation of physical laws.

The "meaning" of the screeching tires is not conventionally determined as a matter of language. A red light, on the other hand, could mean anything.

It has the meaning ascribed only because of a social convention to that effect.

Grice's theory addresses only this latter type of meaning.

For clarity, we will use asterisks on the words "mean" and "meaning" when we  do not use them to indicate non-natural meaning.

In reality, of course, this promise can never be fully realized, because we can never know what another person is thinking.

But "given certain contextual conditions or defaults," a pragmatic approach to meaning can "define a ranking oflikely candidates for the intended interpretation of an utterance ..... GREEN, supra note 64, at 9.

In the hearsay context, the burden-of-proof regime provides the contextual conditions and defaults that make consistent, defensible interpretations possible.


It is no exaggeration to say that Grice's theory of meaning is one of the most successfully developed analyses in the philosophical literature.

H.P. Grice, Meaning (1948, read at the Oxford Philosophical Society), in BASIC ToPics IN THE PHIDSOPHY OF LANGUAGE 21 (Robert M. Harnisch ed., 1994). 92. Id. at 21-22. 93. Id. 94. Id.

A brief description of Grice's symbolic abbreviations will help in the following discussion."

Grice speaks in terms of "utterances" rather than "statements" or "sentences" in order to make clear that any communicative act is a candidate for meaning.

An utterance can be any action, not just traditional communicative acts such as speaking or writing. Grice represents the utterer as "U."

The utterance is indicated by "x."

The utterer's addressee is indicated by "A."

A response produced in the audience is indicated by "r."

In Grice's only resort to the language of formal logic, "iff" is shorthand for "if and only if".

Grice begins his account of meaning by positing that an utterer U means something in uttering x if U utters x with the intention of producing a certain belief in A, provided that U intended A to recognize U's intention to produce that belief.

Grice is attempting to account for meaning in terms of intentions as a way around the problems associated with linguistic meaning. Communication is an act, and it is an act motivated by an intention to produce certain beliefs in an audience, A.

Meaning is thus a function of U's intention and the belief inA that U seeks to produce.

A's recognition of U's intention is critical because without that element, the definition would sweep in any action intended to produce a belief in another person, including action that clearly cannot be associated with the concept of meaning.

An example of the overbreadth that would result from leaving out that element is a scenario in which X leaves Ys clothing at the scene of a crime in order to frame Y.

In this situation, X wants the police to believe

The notations I give are from Grice's follow-up article, Utterer's Meaning and Intentions (the fourth William James Lecture, Harvard, 1967)

See H.P. Grice, Utterer's Meaning and Intentions, in THE PHILOSOPHY OF LANGUAGE 84 (A.P. Martinich ed., 1985).

For simplicity, I discuss the two articles together and use the same notations throughout.

Grice, supra note 95, at 86. 97. Id. at 85. 98. Id. at 84. 99. Id. at 86. 100. Id. 101. Id. 102. Grice, supra note 91, at 25. 103. AVRALUDES, supra note 90, at 45.

The difference between a mere sound and an act of communication is that when there is communication, human beings with appropriate audience-directed beliefs and intentions produce the sounds.

Grice, supra note 91, at 25. 297

 that Y committed the crime, but by leaving the clothing X did not mean that Y committed the crime.00 1

That is, the belief that Y committed the crime is not produced as a result of social convention.

The definition excludes this case by requiring that X intend the police to recognize X's intention to convince the police that Y committed the crime.

Absent that intention, the act of leaving the clothing has no non-natural meaning.

Grice's initial formulation, while a good first step, still sweeps in too much.

Assume a friend asks me to play basketball with him this afternoon.

In response, I hold up my wrist, which is in a cast.

My action has natural meaning.

It means that my hand is immobilized.

But I also intend it to have non-natural meaning.

I mean that I cannot play basketball.

With respect to both the natural and nonnatural meanings, I intend my friend to acquire a belief about my circumstances and I intend him to recognize that I intend him to acquire that belief.

The difference between the two-and the key ingredient in non-natural meaning-is that in the latter case I intend the recognition of my communicative intention to be the basis for my friend reaching the desired conclusion.

Even if my friend misunderstands my intention, he can recognize that my hand is immobilized; the fact of immobilization follows necessarily from the fact that my hand is in a cast.

But in order to understand that I mean I cannot play basketball, my friend must recognize my communicative intention; he must understand that I intend my action as a response to his inquiry.

To differentiate between natural meaning and non-natural meaning, then, Grice has to add another condition to his definition.

Meaning must include an intention on the part of U that the recognition of the U's communicative intention play a role in inducing the belief the speaker wants the audience to acquire.0
In other words, as Grice formulates the revised definition,

U means

Note that the fact that Y's clothing is at the scene of the crime will have natural meaning for the police. It will mean that at some point some person was at the scene with an item of Y's clothing and left the item there.

X is counting on the police drawing further, and inaccurate, inferences from that natural meaning-specifically, that Y was at the scene and inadvertently left the clothing behind.

But X's action has no nonnatural meaning because the meaning and the inferences X hopes will be drawn from it do not depend on communicative conventions. 106. See Grice, supra note 91, at 25. 107. Id. at 26. 298 [Vol. 43:

 something by uttering x if U intends the utterance of x to produce some effect in A by means of the recognition of U's intention."'

What U means is determined by the effect he intended."

Grice stopped at that point in his first paper.

His theorywas widely critiqued, and in a 1967 follow-up lecture, "Utterer's Meaning and Intentions" (the fourth William James Lecture at Harvard) he responded to some of the criticism.

Grice begins by redrafting his definition in a more formal style, as follows:

U meant something by uttering x iff, for some audience A, U uttered x intending A

(1) to produce a particular response r
(2) to think (recognize) that U intends A to produce r
(3) to fulfill (1) on the basis of the fulfillment of (2).

Grice then acknowledged that he needed to add some additional conditions to the definition.

The most significant is the addition of a condition directed at the form of the utterance.'

The problem with the definition as drafted is that it encompasses situations in which an utterer induces a response without employing non-natural meaning.

For example, assume a prisoner of war is believed by his captors to possess certain information."'

They want him to divulge this information and he knows they want him to divulge it."' Being a patriot, he refuses."

His captors apply thumbscrews in an attempt to compel disclosure. 118 The act of applying the thumbscrews satisfies Grice's initial definition.

The captors want the prisoner to divulge the information; they want him to recognize that intention; and they want him to divulge the information based 108. Id. at 27. 109. Id. 110.

See MILLER, supra note 62, at 228-43 (summarizing criticism of Grice's theory of meaning). 111. Grice, supra note 95. 112. 1& at 86, 94. 113. Id. at 87. 114. Id- 115. Id. 116. Id- 117. Id. 118. Id.

at least in part on his recognition of their intention." 9 But the act of applying the thumbscrews is merely an inducement. It does not have non-natural meaning because its meaning is not tied to social convention: pain is pain in any language.uo

The reason the definition sweeps in the inducement case is that it does not distinguish among the different ways an actor can reveal an intention.

To have non-natural meaning, the audience's recognition of the utterer's intention must be tied to the utterance-that is, to the aspects of conventional usage that give the utterance significance.

2' The audience must recognize the utterer's intention at least in part from the form of the utterance. The revised definition including this condition looks like this:

U meant something by uttering x iff, for some audience A, U uttered x intending A

(1) to produce a particular response r
(2) to think (recognize), at least in part from the utterance of x, that U intends A to produce r
(3) to fulfill (1) on the basis of the fulfillment of (2).

This seems daunting, but it makes sense when applied to an actual utterance.

Take the note from United States v. Day as an example. The dissent argued that Williams intended to communicate to the police that, in the event of his demise, Day and Sheffey were his probable killers." We can use Grice's theorem to verify that conclusion. Williams is U. His note "Beanny, Eric, 635-3135" is x. The police are A. And the belief that Beanny Day and Eric Sheffey are responsible for Williams's death is r. Now plug these into the definition: Williams uttered"Beanny, Eric, 635-3135" intending the police: (1) to believe that Beanny Day and Eric Sheffey are responsible for Williams's death; 119. Id. 120. Id. 121. AVRAMIYDES, supra note 90, at 47

By ensuring that the audience's recognition of the speaker's intention is based on the audience's recognition of some feature of the utterance, the analysis is made to square more firmly with our intentions about what is to count as a genuine case of non-natural meaning.

Grice, supra note 95, at 87. 123. United States v. Day, 591 F.2d 861,893-96 (D.C. Cir. 1978) (Robinson, J., dissenting).

 (2) to recognize, based on the note, that Williams intended them to believe that Beanny Day and Eric Sheffey are responsible for Williams's death; and
(3) to reach the desired belief on the basis of their recognition of Williams's intention that they reach that belief.

All of these conditions appear to be satisfied.

The context indicates that Williams thought Day and Sheffey planned to kill him and wanted the police to have that information.

It was critical for the successful communication of that information that the police understand that that was what Williams wanted to communicate by the note.

Finally, Williams certainly intended the recognition of his communicative intention to be the basis for the police reaching the desired conclusion-he intended the police to reach the conclusion based on their understanding of his message.

Grice further refined his theory, making it substantially more complex.

The refinements account for a number of difficult hypotheticals raised in the many critiques of the first article. For my purposes, the more extensive refinements are unnecessary.

A limited version of the refined theory provides a sufficient account of speaker's meaning to allow workable hearsay determinations. In the next section, I offer such an account.

The intent-based hearsay approach espoused by the advisory committee, and now widely accepted, focuses on the risk of the declarant's insincerity.

That risk exists only with respect to statements that assert some proposition of fact, either directly or indirectly.

Although a form of insincerity can infect other types of utterances, such as performatives, those types of utterances do not raise hearsay concerns because they do not have truth values.

Performatives, originally identified in Scots law by the language philosophers J.L. Austin are utterances that do things rather than assert things.

See LEVINSON, supra WILLIAM AND MARY LAW REVIEW only a proposition of fact can be offered "for its truth." Thus, for hearsay purposes, only utterances in which the speaker meant a proposition of fact demand attention.

U means a proposition of fact if U  intends to produce a belief in that factual proposition in her audience by means of the recognition of her intention-that is, in Grice's definition, if r is a belief in a proposition of fact.

Rule 801 provides that hearsay is a statement, defined in terms of intended assertions, made out of court and offered in evidence to prove the truth of the matter asserted.

Combining this definition with the speaker's meaning definition leads to a concise formula for identifying hearsay under an intent-based approach: An out-of-court statement is offered to prove the truth of the matter asserted when it is offered as evidence of a proposition P, and:

(1) The declarant intended the audience to believe P
(2) The declarant intended the audience to recognize the intention in (1); and
(3) The declarant intended the audience's belief in P to result at least in part from the audience's recognition of the intention in (1).

Examples are promises, threats, warnings, apologies, and the like.

See id. Performatives can be insincere. For example, I can utter words suggesting a promise whether I intend to fulfill the promise or not. See John R. Searle, What is a Speech Act?, in THE PHILOSOPHYOFLANGUAGE 125,133-34 (A.P. Martinich ed., 1985) (distinguishing sincere and insincere promises). But these sorts of statements typically are not covered by the hearsay rule because they are not offered for "the truth of the matter asserted." They are, to use the colloquial term, "verbal acts."

See Christopher B. Mueller, Incoming Drug Calls and Performative Words: They're Not Just Talking About It, Baron Parke!, 16 MIss. C. L. REV. 117 (1995) (arguing that statements with predominately performative aspects should not be considered hearsay).

In other words, the response r must be a belief in the proposition of fact.

Defining r in a way that satisfactorily would account for all types of meaning proved to be the most problematic aspect of Grice's theory.

In response to criticism directed at this problem, Grice further revised his definition, making it significantly more formal and complex. Grice, supra note 95, at 94-100.

For purposes of using the definition in hearsay analysis, however, there is no need to follow Grice all the way down his path.

Given the limited types of meaning implicating the hearsay rule, it is sufficient to define r solely in terms of the audience's belief in a factual proposition.

129. FED. R. EVID. 801(c).

The key to the formula lies in its third element.

The declarant U means the proposition "p" iff U intends that A reach a belief in the proposition based on A's recognition of his communicative intention.

Whenever the declarant U's communicative intention is not intended to be the basis for A's belief in the proposition p, there can be no hearsay issue.

This requirement excludes from the hearsay rule a large quantity of information arguably contained in and transmitted by language.

Most importantly, it removes from the rule any proposition about which the parties are already in agreement and know they are in agreement prior to the utterance, where there is no communicative reason for drawing one or both parties' attention to the agreed upon proposition.

In such a case, the declarant would not intend the audience to reach a belief about the proposition based on the audience's recognition of his communicative intention.

He assumes that the audience holds the belief irrespective of his communicative intention.

As a result of this requirement, a proposition implicit in a statement typically will not be covered by the rule because the declarant typically will not have intended to produce a belief about the proposition based on the audience's recognition of the declarant's communicative intention.

For example, assume I say to a friend

i. Let's go to the movies tonight. I'll pick you up at eight.

This statement arguably contains the proposition that I have, or have ready access to, a car.

But ifI have a car, and my friend knows that I have a car, and I know that my friend knows that I have a car, I do not mean in uttering this statement that I have a car.

We share a common understanding about my car ownership before the statement is made, so I have no reason to produce a belief that I have a car through my utterance.

If my statement is later offered as evidence that I had a car at the time, the statement should not be hearsay.

On the other hand, information conveyed expressly in a statement will almost always be a part of the speaker's meaning and so potentially hearsay, even when there is a pre-existing mutual understanding, because the decision to make a proposition explicit is invariably motivated by a desire to produce a response linked to that proposition in the audience.

For example, assume two old friends get together to reminisce.

They talk about the old times, both assuming that the other already knows about the events. But in talking about the events, they intend to change the nature of their beliefs to make what had been a latent or dormant belief active.

That intention to create an active, current belief is sufficient to satisfy the definition. Because it is rare that a person makes explicit reference to a fact without some desire to focus the audience's attention on the fact, express statements of fact will virtually always satisfy the speaker's meaning hearsay formula.

Between these extremes, a significant amount of implicit information will fall within the speaker's meaning hearsay formula.

Whenever U intends A to recognize U's belief in some proposition based on A's recognition of U's communicative intention, U means that proposition, regardless of whether the proposition is stated expressly.

Returning to the earlier example, assume I have not had a car in the past, but today on impulse I bought one. I want to let my friend know of my purchase, but I want to be coy about it. So I say,

i. Let's go to the movies tonight, I'll pick you up at eight.

I make this statement intending that my friend will recognize my intention to suggest that I have a car.
I mean that I have a car, even though that proposition does not appear expressly in my utterance.

If my statement is offered in court as evidence that I had a car at the time of the utterance, it is hearsay."'

The range of utterances bearing this sort of indirect intended meaning is limitless."' The difficulty for a court lies in segregating

Professor Park has suggested a hearsay analysis that has strong similarities to the one that I propose.

He suggests the following: Let PF be the fact the proponent proposes to have the trier of fact infer from the declarant's words.

When the proponent asks the trier to believe that the declarant desired to send the message PF with the words, the utterance is hearsay whatever its form.

When it appears likely that the declarant was aware that someone would find the declarant's words useful in inferring or remembering PF, then the utterance is also hearsay.

When the [declarant] was apparently unaware that the utterance might be useful to infer or remember PF, then the words are not hearsay because they are not offered for the truth of any assertion they contain. Roger C. Park, The Definition of Hearsay: To Each Its Own, 16 MISS. C. L. REV. 125, 131 (1995).

Although"awareness that an utterance will be useful" might be broader than "intent to produce a response," it seems likely that Park's test would produce results similar to those produced by the speaker's meaning test.

Indirect, intended meaning is conveyed, inter alia, through what Grice identifies as "conversational implicature."

See H.P. Grice, "Logic and Conversation" (2nd William James lecture), in THE PHILOsoPHY

 the intended meanings from the unintended presuppositions.

Clues to the intended meanings must be gleaned from context.

In the example just given, a judge, in deciding whether my statement was intended to ASSERT OR STATE (never mind MEAN) that I had a car, should look for clues about the assumptions existing between my friend and me at the time of the utterance.

Evidence that my friend knew that I did not have a car previously and had not spoken to me earlier that day, coupled with evidence that I made the purchase on the spur-of-the-moment, would suggest that I meant that I had a car.

Again, the key is the underlying assumptions.

If the declarant U had no reason to intend to produce a belief about a proposition based on the utterance, the proposition p probably was NOT a part of U's meaning.

Significantly, the results reached by applying the speaker's meaning formula square with the rationale advanced by the Advisory Committee for excluding unintended assertions from the scope of the rule.

The rule, at least in the Advisory Committee's view, is designed to cover only statements bearing a sincerity risk.

When the parties to a conversation share an understanding about the background assumptions underlying the conversation, there is OF LANGUAGE 159, 160-61 (A.P. Martinich ed., 1985).

Conversational implicature accounts for an enormous range of information communicated indirectly or nonliterally, including irony, exaggeration, metaphor, even tactful understatement.

A conversational implicature is a proposition implied by and intended in a statement but not expressed by the linguistic meaning of the statement.

In the 1967 William James lectures, but not in the Oxford lectures by the same title given two years earlier (where he speaks of principles and desiderata, of clarity, candour, conversational benevolence, and conversational self-interest) Grice explains conversational implicature in terms of the Kantian over-arching "cooperative principle," which holds that participants in a conversation cooperate with each other by following four conversational CATEGORIES. Grice is playing a pun on Kant.


the maxim of quantity: a person's contributions should be as informative as is required.


 the maxim of quality: a person should not make statements that are false or unsupported by evidence;


the maxim of relation: every contribution should be relevant; and


the maxim of manner: every contribution should be direct and unambiguous.

The cooperative principle is not always explicitly followed.

Rather, we enter discourse with the assumption that our conversational partners will follow it. Id. at 164.

When they apparently fail to do so, we interpret what they said so as to conform to the maxims. Id Conversational implicatures are the result.

Craig Callen has used the cooperative principle in analyzing hearsay by arguing that a statement is not hearsay when the factfinder has no need to evaluate the declarant's implicit claim of cooperation. See Callen, supra note 3, at 78-82.

For example, assume a doctor leaves a sponge in a patient during surgery. Id. at 79 (relating the facts of Smedra v. Stanek, 187 F. 2d 892 (10th Cir. 1951)).

A nurse says the sponge count did not come out right.

Id. (quotingSmedra, 187 F. 2d at 893).

To use this statement to demonstrate that the doctor was on notice, the factfinder does not need to evaluate the statement in light of the conversational maxims.

It is sufficient that the doctor heard a statement that would alert him to the possibility of a missing sponge. Accordingly, the statement is not hearsay.

virtually no risk of one of the parties attempting to mislead the other about those assumptions.

The attempt would be futile.

It would be met with confusion or simple dismissal.

This is true in every case in which a statement is offered for a proposition that all parties to the conversation believed prior to the conversation and that was understood by all to be believed by the others.

In such a case, there is no risk of insincerity and, under the speaker's meaning formula, the hearsay rule does not apply.

The test of any methodology lies in its application.

In this section, we apply the formula to show its usefulness in deciding real-world hearsay issues.

We begin with some basic scenarios to show the core validity of the formula, and then move to some of the more vexing implied-assertion problems.

Consider the following classic hearsay situation.

At the scene of an accident, a bystander, A, says to another bystander, B,

ii. The blue car ran the red light.

At the trial many months later, A has disappeared, so B testifies to A's statement.

This is a hornbook example of hearsay, and it also clearly fits under the U's meaning formula.

The statement (ii) is offered as evidence of the proposition that the blue car ran the red light.

The context strongly suggests that U intended to produce a belief in that proposition in A, intended A to recognize U's communicative intention, and intended A's belief to result at least in part from A's recognition of

This is a conclusion that Richard Friedman has reached intuitively.

He has said that if conduct merely takes the proposition as a premise, reflecting the actor's belief that the proposition is true and her assumption that her listener also accepts the proposition as true it seems to me that it should not be deemed hearsay within the Federal Rules' approach.

But if part of the aim is to communicate the truth of the proposition to the other party then I think it is hearsay under the Rules' approach. Richard D. Friedman, et al., Discussion: Confrontation and the Utility of Rules, 16 MisS. C. L. REv. 87, 91 (1995) (comments of Richard D. Friedman).

My formula gives a theoretical justification for that conclusion.

Note that U may have any number of motives for making the statement.

U may have wanted to produce the belief in A to enlighten A, to persuade A, to get confirmation from A, or for some other reason.

As long as the hearsay test is met, though, U's motivation is irrelevant.

The risk of insincerity is present and the statement is hearsay, albeit probably admissible as a present-sense impression or excited utterance.

The speaker's meaning hearsay formula also produces outcomes consistent with hearsay doctrine in the most common situations involving out-of-court statements that are not hearsay.

For example, traditional hearsay doctrine holds that verbal acts, such as contractual promises, defamation, and fraud, are not hearsay either because they are nonassertive,

or because they are not offered for the truth of the matter asserted because the statement has independent legal significance.

Another way to think about verbal acts is to say that they are not being offered as evidence of a factual proposition that was a part of the speaker's meaning. In the contract example, for instance, if I say words in an appropriate context that a reasonable person would construe as an offer, I may be found to have made a binding offer even if I had no intention of making an offer in uttering those words.

What matters in this situation is linguistic meaning, not speaker's meaning; the court supplies the most conventional meaning available and asks whether an offer appears.

The law is simply not concerned with what propositions of fact the speaker meant.

Another important category of nonhearsay encompasses statements offered for their effect on the listener, such as statements that give notice of a dangerous condition or threatening statements offered to show the reasonableness of the listener's fear.

These statements are not considered hearsay under traditional doctrine because they are offered not for the truth of the matter asserted, but rather for the fact that the listener heard them.

Statements of this type are not hearsay under the speaker's meaning formula because the value of the evidence depends on the propositions that 133. See MCCORlMnCIc, supra note 40, § 249, at 377; 6 JOHNHENRYWIGMORE, ATRETIsE ONTHEANGLO-AMERIcAN SYSTE ON EVIDENCE INTRIAIS AT COMMON LAW § 1772, at 191 (3d ed. 1940). 134. MUELLER & KIRKPATRICK, supra note 17, § 8.16, at 827. 135. See MCCORICK, supra note 40, § 249, at 378.

 appear as part of the linguistic meaning. If the linguistic meaning of the statement suggests a warning or a threat, the speaker's meaning is irrelevant. Establishing that the speaker's meaning formula accounts for routine cases is important-no hearsay theory could claim legitimacy if it could not clear that hurdle-but the real test of the theory is its ability to guide resolution in the difficult cases. I take up that challenge next.

With Rule 801's unambiguous removal of nonassertive conduct from the scope of the hearsay rule, the difficult hearsay cases now involve what the Advisory Committee refers to as verbal conduct which is assertive but offered as a basis for inferring something other than the matter asserted.

While the range of cases potentially raising this issue is limitless, some recurring problem areas exist, and I will concentrate on these areas in the following analysis.

Besides showing how the speaker's meaning concept can be used to apply Rule 801, the analysis reveals a frequent lack of significant contextual evidence of communicative intention in the reported decisions.

Whether the evidence was available and simply not utilized by the courts or was not available at all is an open question. Its absence suggests that the more difficult questions may often be resolved simply through the allocation of the burden of proof.

According to the Advisory Committee's note to Rule 801, "[tihe rule is so worded as to place the burden upon the party claiming that the assertive intention existed; ambiguous and doubtful cases will be resolved against him and in favor of admissibility.

While the Advisory Committee's understanding has not gone unchallenged,'38 for purposes of this Article, I will 136. FED. R. EvID. 801 advisory committee's note. 137. Id. 138. See Seidelson, supra note 30, at 764 ("I don't think the 'rule is so worded as to place the burden upon the party claiming that the intention existed' with regard to ... an extrajudicial declaration which consists of an oral assertion.") (citation omitted). I agree with the Advisory Committee's interpretation, although I recognize the potential difficulties this position raises in regard to criminal defendants. To the extent my approach results in hearsay determinations that unduly affect the rights of criminal defendants, I believe the proper remedy is a more vigorous Confrontation Clause analysis rather than a more assume that it is correct.

Absent sufficient contextual evidence, then, the evidence should not be deemed hearsay.

The nature of a request can suggest important facts about the people making and receiving the request and about the subject matter of the request.

Requests raise potential hearsay issues most frequently in drug and gambling cases in which the prosecution offers evidence of drug or gambling orders placed to a particular premises in order to show that the premises were used for drug sales.. 9 or betting.

Typically, an investigating officer searching the premises takes a phone call in which the caller requests drugs or places a bet.

The officer then testifies to the substance of the call. The evidence is offered for the two-step inference: from the substance of the calls, the fact finder is asked to infer that the callers believed the premises were used for drug dealing or gambling;, from that inference, the fact finder is asked to infer that the premises were in fact used for drug dealing or gambling.

American courts have generally held that the evidence is not hearsay because the callers made no assertion about the nature of the premises.

A striking feature of these decisions is the absence of any thorough analysis of the actual statements.

The courts typically simply declare that the callers requested drugs or placed bets expansive hearsay definition. See infra notes 202-03 and accompanying text (suggesting confrontation approach). 139. See, e.g., United States v. Oguns, 921 F.2d 442 (2d Cir. 1990); United States v. Lewis, 902 F.2d 1176 (5th Cir. 1990); United States v. Giraldo, 822 F.2d 205 (2d Cir. 1987). 140. See, e.g., United States v. Southard, 700 F.2d I (lst Cir. 1983); United States v. Zenni, 492 F. Supp. 464 (E.D. Ky. 1980); People v. Barnhart, 153 P.2d 214 (Cal. Dist. Ct. App. 1944). 141. See United States v. Long, 905 F.2d 1572 (D.C. Cir. 1990). In Long, the police were searching a co defendant's apartment when the phone rang. Id. at 1579. A police officer answered and an unidentified woman asked whether "Keith" (Long's first name) "still had any stuff."

She then arranged to come to the apartment to pick up "a fifty." Id The trial court admitted evidence of the phone calls and the court of apeals affirmed, finding that "Long has not provided any evidence to suggest that the caller, through her questions, intended to assert that he was involved in drug dealing." Id. at 1579.

Within the last decade, in keeping with the Wright tradition, the English House of Lords held that calls of this type requesting drugs were inadmissible hearsay. See Regina v. Kearley, 95 Crim. App. R. 88 (H.L. 1992).

without recounting the conversation."4 2 At most, they recite a single sentence requesting the drugs or placing the bet. To adequately evaluate the declarant's communicative intention, more contextual data is required. United States v. Zenni"3 shows why. Zenni involved a police raid on a betting parlor.' While at the premises, the police took a number of phone calls from people who wanted to place bets on various sporting events.

The prosecution offered the calls as evidence that the premises were being used for gambling. 46 The defense raised a hearsay objection, but the court held the evidence admissible. 47 In reaching its decision, the court never recounted the conversations.

It offered one representative statement, apparently as a hypothetical:

Put $2 to win on Paul Revere in the third at Pimlico.

No context was given.

Mixing verbal-act justifications with a literal-meaning interpretation of the statement, the court concluded that the statement was not offered for the truth of any assertion contained in it and so was not hearsay under Rule 801.

The court was probably correct that the utterer of the quoted statement did not intend to assert, and did not mean that the premises were used for gambling.

There is not, however, enough contextual evidence to say for certain.

To be hearsay, the caller must have intended his audience to produce an active belief that the establishment was used for gambling and to produce the belief based on the recognition of the caller's intention. Normally, a caller does not have that intention.

Most people who call a betting parlor and place an order using that kind of truncated language do so under an assumption that all parties to the transaction share a preexisting understanding of the nature of the transaction and

See, e.g., Southard, 700 F.2d at 13 (describing evidence as "a tape of three telephone conversations" which [i lfbelieved, ... showed ratherconclusively that Brian and Kachougian operated a gambling business"); United States v. Pasha, 332 F.2d 193, 196 (7th Cir. 1964) ("[In response to the caller's question, 'Who is this?', [the agent] gave the name of one or the other of the defendants as the person speaking, and the caller then placed a bet or asked for racing information."). 143. 492 F. Supp. 464 (E.D. Ky. 1980).

character of the establishment.

The caller who is comfortable enough to make such a call probably has a relationship with the bookmakers such that he assumes that they assume he is calling with reference to their gambling operations.

He has no reason to try to communicate anything about the nature of the establishment.5 0 There may be situations, however, in which a caller attempting to place a telephone bet does intend to communicate something about the nature of the establishment.

If the bookmakers are operating on the sly, and the caller does not have a pre-existing relationship with them, he may need to convey to them that his call relates to their betting operations. He will want his audience to assume the role of bookmaker, which involves the audience recognizing, in something more than a subconscious way, the nature of the business.

The most effective way of doing that without raising suspicion might be to call and announce a bet using the appropriate jargon. In that situation, the caller does intend the proposition that the establishment is used for betting to be a part of his speaker's meaning.

If his statement is later offered in evidence for that proposition, it is hearsay. This possibility could be explored with minimal additional evidence about the context of the call.

The judge could rule out this scenario simply through evidence that the caller did not identify himself or identified himself using a nickname or other shortened name.

That would indicate a pre-existing relationship, which would negate the need for the caller to produce a response linked to the nature of the operation. If no additional evidence were available, the judge would have to let the evidence in based on the defendant's failure to meet his burden of proof on the admissibility issue.

That result seems justified, because, in most cases, the caller would not intend to assert the offered proposition.

Park reached a similar conclusion through application of his "awareness" test.

The intercepted utterance "Put $5 on Nick's Arrival in the 5th7 would not be hearsay when offered to show that the intended addressee was a bookmaker. Unless one assumes unusual facts, the declarant would not have thought that the utterance provided information that anyone would find useful in drawing an inference about the addressee's status as a bookmaker. Park, supra note 130, at 131.

In Anderson v. United States,'m a number of government officials were prosecuted for conspiring to rig an election.1 5 2 Two of the defendants had given perjured testimony in the form of false statements about the number of people who had voted in the election, and this testimony was used by the prosecution against the other defendants.

The defendants argued that this evidence was hearsay and, furthermore, was not admissible as statements of co-conspirators because the conspiracy had ended.'" The Supreme Court held that the statements were not hearsay.

In the Court's view, since the statements were false and were offered as evidence of the defendants' guilty minds, they were not offered to prove the truth of the matter asserted.1 6 On the same rationale, other courts have consistently held that false statements are not hearsay when offered to show guilty knowledge.

Scholars taking a credibilitybased approach, however, have argued that false statements are hearsay because they depend on the credibility of the declarant for value.1 58 Under a speaker's meaning approach, false statements are not hearsay when offered to show guilty knowledge because they are not offered as evidence of any proposition contained in the speaker's meaning. For example, assume that a defendant is charged with car 151. 417 U.S. 211 (1974). 152. Id at 213. 153. Id. at 216-17. 154. Id. at 216-18. 155. Id. at 219. 156. Id. at 219-20. 157. See, e.g., United States v. Kirk, 844 F.2d 660, 663 (9th Cir. 1988) (stating that misrepresentations of the defendant offered in a fraud case were not hearsay because they were not offered for truth of matter asserted); United States v. Perholtz, 842 F.2d 343, 357 (D.C. Cir. 1988) (discussing a racketeering case in which evidence of a "script" prepared by one defendant for another person was not hearsay because it was offered to prove falsity); United States v. Hathaway, 798 F.2d 902, 905 (6th Cir. 1986) (same). 158. See Roger C. Park, McCormick on Evidence and the Concept of Hearsay: A Critical Analysis Followed by Suggestions to Law Teachers, 65 MINN. L. REV. 423, 426 (1981).

In describing his category of "declarant-oriented" hearsay definitions, Park posits a case in which a wife lies to police about the whereabouts of her husband on the day of a crime. Id. Professor Park states that "[u]nder a declarant-oriented definition, ... the statement would be hearsay because the trier's use of it requires reliance on the wife's powers of memory, perception, and narration."

theft, and the prosecution offers evidence that when the defendant was stopped, his companion falsely told police that the car belonged to her brother.'59 The companion wanted the police to believe that the car was her brother's, she wanted them to recognize her intention to create that belief, and she wanted them to produce that belief based on their recognition of her intention. She clearly meant that the car belonged to her brother.

She in no way wanted them to recognize her intention to mislead them or her belief in the guilt of her companion.

Therefore, when the statement is offered to show her belief in her companion's guilt, it is not offered to prove the truth of any matter she intended to assert. c. Silence Courts have long struggled with the hearsay implications of silence.

The situation comes up most often in civil cases where a defendant wants to prove the absence of complaints to refute an allegation of a dangerous condition.

Courts in these cases have typically held that the absence of complaints is not hearsay because the people who did not complain did not intend to assert anything by their failure to complain.

In some cases, however, silence can pose difficult hearsay problems, which can be resolved using the speaker's meaning formula.

The example is taken from CHmSTOPHER B. MUELLER & LAiRD C. KMRKPATRICK, EVIDENCE UNDERTHE RULES 175 (3d ed. 1996). 160.

See Judson F. Falknor, "Silence as Hearsay".

Silence is also an aspect of the doctrine of adoptive admissions, by which a party to an action may be held to adopt statements made in her presence by third parties where the statements would normally provoke a denial.

For a discussion ofthis hearsay doctrine and of the legal effect of silence generally, see P. Tiersma, "The Language of Silence".

See, e.g., Cain v. George, holding that evidence that guests in a hotel room prior to plaintiffs had not complained about carbon monoxide leaking from a gas heater was not hearsay); Silver v. New York Central R.R., 105 N.E.2d 923,925-27 (Mass. 1952) (allowing evidence that passengers in car on which plaintiffwas traveling had not complained of cold). But see Menard v. Cashman, 55 A.2d 156, 160-61 (N.H. 1947) (holding that evidence that no other tenants had complained about lighting on a stairway where plaintiff fell was hearsay).

In some cases, silence is clearly assertive, for example, when a doctor examining a patient tells the patient to speak out when the patient feels pain.

In that case, as long as the patient does not speak out, he is "asserting" that he does not feel pain.

In United States v. Pacelli,6 2 Pacelli was arrested for murdering a government witness."

Lipsky, who had been with Pacelli when the murder was committed, testified that after Pacelli's arrest, Lipsky met with members of Pacelli's family and discussed the arrest.

Although Pacelli's uncle expressed frustration that the body of the victim had not been disposed of more thoroughly, none of Pacelli's family members protested that Pacelli was innocent.'

The prosecution offered this testimony as evidence that Pacelli's family knew he was guilty.

If they had believed that he was not guilty, the prosecution argued, they would have expressed dismay at the arrest of their innocent family member.

The prosecution argued that the jury could conclude from this evidence that Pacelli must have told his family that he committed the murder."

The court disallowed the evidence, holding that since the extrajudicial statements clearly implied knowledge and belief on the part of third person declarants not available for cross-examination as to the source of their knowledge regarding the ultimate fact in issue, i.e., whether Pacelli killed Parks, Lipsky's testimony as to them was excludable hearsay evidence."

For the evidence in Pacelli to be hearsay using the speaker's meaning formula, Pacelli's family had to intend to assert through their silence that he was guilty.

In other words, the family members had to mean that they believed he was guilty when they failed to protest his arrest.

It seems likely that they did not. For a member of Pacelli's family, his wife for instance, to mean that Pacelli was guilty, she had to intend the other family members to conclude, based on her silence in response to the discussion of his arrest, that Pacelli was guilty.

But she had no reason to harbor that intention, because the context suggests that everyone involved in the exchange shared a common understanding prior to the conversation.

She was almost certainly operating within an assumption that everyone present already held a belief as to Pacelli's guilt and already knew her belief about his guilt. Because she had no incentive to produce a belief regarding his guilt based on her silence, she probably did not mean that he was guilty.

Her silence is not hearsay when offered for the proposition that he was guilty.

Sometimes a statement is offered as evidence of the speaker's knowledge on the theory that the speaker could not talk about the matter unless she had knowledge about it.

In one manifestation, this theory would allow evidence that a speaker uttered a grammatical sentence in Spanish as evidence that the speaker has some understanding of the Spanish language.

Probably the most famous case applying this theory is Bridges v. State,  in which a child molestation victim was permitted to describe the defendant's room as evidence that she had been there.

The Wisconsin Supreme Court held that the child's testimony was admissible for that purpose, although it would not have been admissible to prove what the defendant's room looked like.

The court found that, when offered in conjunction with other evidence about what the defendant's room looked like, the child's description was circumstantial evidence of her knowledge, and not hearsay.

The court's terse analysis suggests that it had difficulty enundating a rationale for finding the girl's testimony nonhearsay. Viewed in speaker's meaning terms, though, the case is relatively simple.

The easiest way to understand it is to go back to the distinction between natural meaning and nonnatural meaning.

The girl's statement certainly had nonnatural meaning: she meant that the defendant's room looked the way she described it.

But the statement was not offered for that proposition. Instead, it was offered for its natural meaning.

The fact that she was able to describe the room meant, in a natural sense, that she had perceived the room before.

Her communicative intention played no role in the understanding of that meaning. Because a statement can be thus made.

There's hearsay only when offered for a proposition contained in its non-natural meaning, the girl's testimony was not hearsay.

Among the most interesting implied assertion cases, because they raise significant Confrontation Clause issues in addition to pure hearsay issues, are the cases in which a suspect says something that indirectly implicates an accomplice.

This scenario formed the basis for two supreme court decisions addressing implied assertions.

In Krulewitch v. United States, the defendant and a coconspirator, Betty Sookerman, were charged with transporting a woman named Joyce Sorrentino across state lines for purposes of prostitution.

At the defendant's trial, Sorrentino testified that Sookerman met with her after Sorrentino's arrest, and the following conversation took place.

She asked me, she says, "You didn't talk yet?"

And I says, "No."

And she says, "Well, don't," she says, "until we get you a lawyer."

And then she says, "Be very careful what you say."

And I can't put it in exact words.

But she said, "It would be better for us two girls to take the blame than Kay (the defendant) because he couldn't stand it, he couldn't stand to take it."

The lower courts had assumed that this testimony was hearsay, but admitted it as a co-conspirator's statement.

The Supreme Court agreed that the statement was hearsay, but held that the coconspirator exception did not apply because the conspiracy had ended before the statement was made.

The Court's analysis of the hearsay character of the statement is sparse, but it suggests an expansive approach to meaning.

The court found that the case was complex.

Vide: United States v. Krulewitch.

The statement plainly implied that petitioner was guilty of the crime for which he was on trial. It was made in petitioner's absence and the Government made no effort whatever to show that it was made with his authority.

The testimony thus stands as an unsworn, out-of-court declaration of petitioner's guilt.

Krulewitch was decided twenty-five years before the promulgation of the Federal Rules, at a time when the hearsay definition, although crystallizing, was still open to differing interpretations.

The Court could have adopted a credibility-based analysis, and that may be what it intended. Under a credibility analysis, the Court's decision is entirely defensible.

If the case were to come up today under the Federal Rules, however, it would likely come out differently.
Sookerman may have conveyed the impression that the defendant was guilty, but she did not mean that he was guilty.

The contextual evidence suggests that she entered into the conversation believing that Sorrentino already believed both that the defendant was guilty and that Sookerman believed that he was guilty.

Sorrentino testified at trial that she and Sookerman had been living together and working as prostitutes in New York and that, at the defendant's urging, they went to Miami with the defendant and worked as prostitutes there.

Because they apparently shared a common understanding about the defendant's role, Sookerman had no reason to intend to produce a belief in Sorrentino that the defendant was guilty.

Sookerman's statement would not be hearsay under Rule 801 if offered to prove her belief that he was guilty.

Twenty years later, still prior to the Federal Rules, the Court took up another case in which an accomplice made an inculpatory jailhouse remark.

In Dutton v. Evans, Alex Evans and Venson Williams were charged with murdering three police officers.

At Evans's trial, the prosecution called a man named Shaw. The Supreme Court described Shaw's testimony as follows.

He testified that he and Williams had been fellow prisoners in the federal penitentiary in Atlanta, Georgia, at the time.

Vide: United States v. Knrlewitch.

Williams was brought to Gwinnett County to be arraigned on the charges of murdering the police officers.

Shaw said that when Williams was returned to the penitentiary from the arraignment, he had asked Williams

"How did you make out in court?" and that Williams had responded:

"If it hadn't been for that dirty son-of-a-bitch Alex Evans, we wouldn't be in this now."

The testimony was admitted by the trial court, which apparently assumed that it was hearsay but found that it fell within Georgia's exception for co-conspirator's statements.

The case reached the Supreme Court on Evans's petition for a writ of habeas corpus arguing that the statement was improperly admitted.

The Supreme Court also assumed, without any analysis at all, that the testimony was hearsay."

Finding that the testimony fit within the Georgia exception and that the exception was constitutional, however, the Court denied the petition.

Although the Court did not provide enough contextual evidence for a conclusive explication, it appears that this situation is different from the one in Krulewitch.

The circumstances of Shaw's conversation with Williams are not clear, but it appears that Shaw was not affiliated with the conspiracy.

He knew Williams and spoke with Williams in the prison hospital after Williams was indicted.

Assuming that Shaw had not had earlier conversations with Williams about the crime-an assumption that could easily have been checked-he probably was not privy to the details of the crime at the time of the prison conversation.

In that case, for Williams's expression of disgust with Evans to make sense to Shaw, Shaw had a responsibility.

An earlier opinion by the Georgia supreme court on the appeal of the original decision described a slightly different statement by Shaw.

Lynn W. Shaw testified that he is a prisoner in the United States penitentiary at Atlanta.

He stated that he knew the defendant and had had a conversation with him in the hospital at the prison after the defendant had been indicted for the killing of the three officers.

Shaw asked the defendant how he came out at the hearing, and the defendant replied:

iii. If that dirty son of a bitch Alex Evans hadn't shot Everett we wouldn't be in this mess.

Vide: Williams v. State.

One is to be made aware of Evans's role in the crime.

Williams's statement must have been intended to convey that message as well as the more overt message about Williams's disgust.

In utterer's meaning terms, Williams apparently intended Shaw to believe, based on Shaw's recognition of Williams's communicative intention, that Evans participated in the crime.

Thus, when offered as evidence of Williams's belief that Evans participated in the crime, Williams's statement is hearsay.

Later courts interpreting Krulewitch and Dutton have not seen any difference in the cases.

The cases relying on them typically cite them as generalized support for a credibility-based approach to the hearsay rule, even though most cases in this camp post date the Federal Rules.

The most celebrated case of this type is United States v. Reynolds.

In Reynolds, the defendant, Parran, and a coconspirator, Reynolds, were charged with possessing and attempting to cash a stolen unemployment check.

They were seen together purchasing a false identification and then conversing as they walked to a bank.

Parran kept walking while Reynolds went in and tried, unsuccessfully, to cash the check.

As he left the bank, Reynolds was arrested by postal inspectors.

Parran then returned to the scene of Reynolds's arrest, where, according to a postal inspector making the arrest, Reynolds said to him the following:

"I didn't tell them anything about you."

At trial, the postal inspector testified to Reynolds's statement.

Parran was convicted.

Parran appealed, arguing that the postal inspector's testimony was inadmissible hearsay.

The third circuit agreed.

Relying on both Krulewitch and Dutton, the court adopted a credibility-based approach to the case.

Reynolds was a focal point of Park's widely-cited article "I didn't Tell Them Anything About You Implied Assertions as Hearsay Under the Federal Rules of Evidence.

In the hearsay issue, he focuses on the risk of ambiguity inherent in Reynolds's statement.

Reynolds's statement is ambiguous and susceptible to different interpretations. As the government uses it, the statement's probative value depends on the truth of an assumed fact it implies.

Unless the trier assumes that the statement implies that Reynolds did not tell the postal inspectors that Parran was involved in the conspiracy to defraud, even though Parran was in fact involved, the statement carries no probative weight for the government's case.

Concluding that it could not find any distinction of substance between Reynolds's statement and the statements at issue in Krulewitch and Dutton, the court held that the statement was hearsay.

Of course, an important difference between Reynolds on the one hand and Krulewitch and Dutton on the other is that the former was decided under the federal rules of evidence while the latter were not.

The third circuit avoided any discussion of the hearsay rule and whether it required a different result than might have been permissible in its absence.

Leaving that point aside, we have suggested that there was also a substantive distinction between Krulewitch and Dutton.

The question for purposes of analysing Reynolds according to the utterer's meaning formula is whether Krulewitch or Dutton more closely resembles Reynolds.

Once again, unfortunately, there is not enough contextual evidence to say for certain.

The analysis depends on several factors.

One important issue involves Reynolds's intended audience. Assume first that Reynolds thought he was out of earshot of anyone but Parran.

In that situation, the statement potentially resembles the statement in Krulewitch.

If Parran and Reynolds were complicitous in the scheme, then they both would have believed that Parran was involved and that the other believed that he was involved.

The utterer would not have made the statement intending Parran, on the basis of the statement, to produce a belief that he was involved."

On the other hand, it is possible that Reynolds knew that he would be overheard by the arresting postal inspectors.

He could have intended to impart blame to Parran as a strategy for mitigating his own dire circumstances.

In other words, he could have intended the postal inspectors to believe that Parran was involved in the scheme and to reach that belief based on their recognition of his intention.

If that were the case, his statement clearly would be hearsay.

But in the absence of sufficient contextual evidence on these points, and it is hard to imagine such evidence existing, the issue has to be resolved in favor of non-hearsay treatment.

In other words, we have to assume that Reynolds did not intend to communicate anything about Parran's guilt to the arresting officers.

To the extent that a finding that the statement is not hearsay results in its admission, that conclusion raises troubling confrontation concerns.

As the supreme court has explained, the central concern of the confrontation clause is to ensure the reliability of the evidence against a criminal defendant by subjecting it to rigorous testing in the context of an adversary proceeding before the trier of fact.

Reynolds's statement strongly suggests Parran's guilt and was used to show Parran's guilt without any rigorous testing for reliability.

But concerns were raised.

Even if Reynolds intended his statement to be heard by Parran only, he could have intended to communicate the proposition that Parran was, or could be considered, partly culpable.

Assume that Parran had no active role in the crime. Reynolds might have wanted to suggest to Parran the possibility that Parran could be implicated as a way to keep Parran from talking.

If that were the case, he might have meant the proposition

i. You were involved.

when he said

ii. I didn't tell them anything about you.

The statement would be hearsay if offered as evidence that Parran was involved.

Again, though, given the burden-of-proof regime in Rule 801, that possibility must be discounted absent more substantial evidence.

Vide Maryland v. Craig and  Lillyv, concurring.

As traditionally understood, the right was designed to prevent, for example, the kind of abuse that permitted the crown to convict Sir Walter Raleigh of treason on the basis of the out-of-court confession of Lord Cobham, a co-conspirator.

This is an issue that D. Seidelson has recognized.

Seidelson cites the potential contraction of confrontation clause protections as a reason for rejecting the approach to Rule 801 that we advocate.

The non-hearsay characterization of verbal assertions offered for the two-step inference was a judgement call or arbitrary determination made by the committee.

Such a determination cannot negate the admission of this evidence do not necessarily undermine the intent-based approach to the hearsay rule as effected by the utterer's meaning formula.

Rather, the problem lies in the uncompromising integration of the hearsay rule and the confrontation clause.

There is nothing in the text of the confrontation clause that requires a mechanical decision in which any out-of-court statement found to be non-hearsay must also be found to pass constitutional muster.

Divorcing hearsay analysis from confrontation analysis would free courts to make consistent hearsay determinations while still guaranteeing the reliability of evidence against criminal defendants under the Confrontation Clause.

Statements like that in Reynolds, although clearing the hearsay hurdle, might still be excluded on constitutional grounds.

The application ofthe hearsay definition in Rule 801 turns on the identification of intended assertions.

The utterer's-meaning approach offers a guiding principle for making those determinations.

To identify the utterer's meaning, we need to know constitutional guarantee of the confrontation clause when the evils to be met by the clause in fact exist.

Over the last three decades, the confrontation clause has become inextricably intertwined with the operation of the hearsay rule.

See, e.g., Idaho v. Wright, finding a violation of the Confrontation Clause where an unavailable child's out-of-court declaration was admitted under a state residual exception.

United States v. Inadi, holding that the government has no obligation to produce an available co-conspirator hearsay declarant.

Ohio v. Roberts, upholding the admissibility of agency admissions and introducing a two-prong Confrontation Clause test.

Dutton v. Evans, holding that admission of hearsay statements under a state co-conspirator exception did not violate the confrontation clause because of sufficient "indicia of reliability".

California v. Green, holding that delayed cross-examination of a hearsay declarant satisfies the Confrontation Clause.

The development of the confrontation clause of the sixth amendment has created a body of law that barely diverges from the "hearsay" system as it is codified in the federal rules of evidence.

R. Friedman has advocated a confrontation-clause approach that would offer the protection that we suggest.

Friedman believes that the confrontation clause should assure cross-examination of any witness against a defendant, and defines a witness against a defendant as anybody who makes a statement knowing that itwould likely be used in the investigation or prosecution of a crime.

It would be otiose that she would try to mislead his addressee about what she believed that the other participant in the conversation already assumed.

If the declarant and the addressee shares a set of common premises, the utterer/declarant probably would not have intended to assert anything about those premises, absent some reason for bringing them to the forefront of the others' minds-as in the cases of reminding or reviewing facts.

A statement offered as evidence of a proposition relating to those premises should not be considered hearsay.

This makes good sense as an organizing principle for the hearsay rule.

The rule does not cover m-unintended assertions because of the minimal insincerity risk associated with that kind of communication.

A person is not likely to try to mislead another person about something that both of them presuppose.

In many cases, sufficient contextual evidence will exist to make an informed judgment about the utterer's presuppositions.

In some cases like Reynolds, however, that will not be possible.

In those cases, because the party opposing the admission of the evidence has the burden of proving that an out-of-court statement is offered for the truth of an m-intended assertion, the evidence should be admitted.

The risk of unreliable evidence coming in through this method can be addressed through a more aggressive confrontation clause approach.



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