Let us examine meaning, intention, and the hearsay rule
Hearsay problems are language problems.
The hearsay rule
proscribes the repetition in court of out-of-court statements offered
"to prove the truth of the matter asserted."'
To determine whether
a statement is being offered to prove the truth of the matter it
asserts, a court must determine what the statement means.
respect, applying the hearsay rule is similar to interpreting a
statute or a contract: in each case, the court must interpret
language at a remove from the context of its utterance.
have long recognized that questions about statutory and contract
interpretation are questions about meaning, and they have
effectively used linguistic analysis to elucidate these and other
Surprisingly, however, relatively little effort
has been made to apply linguistic principles in the study of the
I amindebted to Ronald Allen,
Georgia Green, Lash LaRue, Shaun Shaughnessy, Brian Tamanaha, Peter Tiersma, Glen
Weissenberger, and the participants in a writer's workshop at St. John's for their comments
on earlier drafts of this Article.
1. FED. R. EvID. 801(c) ("Hearsay' is a statement, other than one made by the declarant
while testifying at the trial or hearing, offered in evidence to prove the truth of the matter
2. See, e.g., M.B.W. Sinclair, Law and Language: The Role of Pragmatics in Statutory
Interpretation, 46 U. PrrT. L. REV. 373 (1985); Lawrence M. Solan, Learning OurLimits: The
Decline of Textualism in Statutory Cases, 1997 WIS.L. REV. 235 (1997); Peter Meijes Tierama,
The Language ofPerjury: "Literal Truth,"Ambiguity, and the False StatementRequirement,
63 S. CAL. L. REv. 373 (1990); Peter Meijes Tiersma, Comment, The Language of Offer and
Acceptance: Speech Acts and the Question of Intent, 74 CAL. L. REv. 189 (1986).
3. One example of the use of language philosophy in the analysis of the hearsay rule is
Craig Callen's use of Paul Grice's cooperative principle as an aid in understanding the
purposes motivating the rule and in distinguishing hearsay from nonhearsay. See Craig R.
Callen, Hearsay and Informal Reasoning, 47 VAND. L. REV. 43 (1994). Professor Callen
argues that an out-of-court statement should be considered hearsay
(i) if the proponent offers it to establish any inference that the actor generally
In this Article, I draw on insights from the linguistic discipline of
pragmatics to offer another way to understand and apply the
definition of hearsay in the Federal Rules of Evidence. Pragmatics
is concerned with how we use language in real-world contexts to
accomplish various objectives.' By identifying the conventions that
govern language usage, pragmatics provides ways to analyze what
a speaker means when he says something and how meaning is
conveyed through language.5 Pragmatics thus has obvious utility
for the study of hearsay.
The philosopher Paul Grice looms over the field of pragmatics.
His theory of conversational implicature revolutionized linguists'
understanding of how we communicate.6 It is Grice's pragmatic
theory of meaning, however, that has the greatest import for me.
Meaning is an extraordinarily difficult concept. No single theory of
meaning has been accepted for all purposes. I will argue, however,
that the definition of hearsay in Federal Rule of Evidence 801 (Rule
801) requires an inquiry into what linguists call "speaker's
meaning." I will then offer a formula for identifying hearsay based
on Grice's theory of speaker's meaning. Finally, I will apply my
approach both to basic situations and to a number of hearsay
problem areas to demonstrate how it can facilitate the resolution of
even the most intractable hearsay issues while effecting the
rationale underlying the hearsay rule.
My objectives are twofold. First, by showing how hearsay
problems fit into an established linguistic framework, I hope to
respond to some of the criticism of the prevailing understanding of
would have intended the audience to draw from the communication, and (ii) if
assessment of the degree of accuracy of the actor's implicit claim of co-operation
would be essential to a thoughtful, unprejudiced factfinder's determination of
the inference's reliability.
Id. at 86-87 (footnotes omitted).
4. STEPHEN C. LEVINSON, PRAGMATICS 5 (1983) ("[J]ust as, traditionally, syntax 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 the study of language usage.").
5. Id. at 53 (describing pragmatics as the study of language users' ability to "compute
out of sequences ofutterances, taken together with background assumptions about language
usage, highly detailed inferences about the nature of the assumptions participants are
making, and the purposes for which utterances are being used").
6. Id. at 97 ("The notion of conversational implicature is one of the single most
important ideas in pragmatics ....").
276 [Vol. 43:275
20011 MEANING, INTENTION, AND THE HEARSAY RULE 277
the hearsay rule.7 I attempt to show that, contrary to that criticism,
the definition of hearsay in Rule 801 can be consistently and
rationally applied even in difficult cases. Second, I propose a
hearsay formula that I hope can assist judges in resolving realworld
hearsay problems. Specifically, I will argue that judges
should focus on the communicative intention motivating the
statement, and that recognizing that intention requires a focus on
preexisting understandings between the declarant and her
I. THE DEFINITION OF HEARSAY IN RULE 801
A. The Implied Assertion Problem
A prerequisite to understanding the modern hearsay rule is
understanding the historical debate about the scope of the rule.
This debate has its origin in the celebrated nineteenth-century case
of Wright v. Tatham.' A Dickensian epic that meandered through
England's courts for the better part of a decade, Wright was a suit
by an heir at law to recover land from a devisee under a will.9 The
case turned on the validity of the will, specifically on the testator's
mental capacity.10 As evidence of the testator's capacity, the
defendant offered several letters written to the testator in the years
prior to his death.1 None of the letters expressly commented on the
testator's mental capacity, but the content suggested that the letter
writers believed the testator was competent. This inference was
offered as evidence that the testator was in fact competent. 12 The
case went all the way to the House of Lords, and the letters
7. See infra note 37 (citing articles critical of the hearsay definition in Rule 801, as
interpreted by the Advisory Committee).
8. 112 Eng. Rep. 488 (KB. 1837).
9. Id. at 489. The case labored through trials and appeals for eight years before its final
resolution in the House of Lords. Id. at 469, 524 (noting that the case began in 1830 at the
Lancaster Spring Assizes and was resolved in 1838 in the House of Lords).
10. Id. at 488.
11. Id. at 490-94. Aletter from the testator's cousin inVirginiadiscussingfamilymatters
and a letter from a local vicar asking the testator to arrange for his attorney to resolve a
dispute between the decedent and the township were among those forming the heart of the
dispute. Id. at 490-91, 496.
12. Id. at 493-94.
WILLIAM AND MARY LAW REVIEW
ultimately were declared inadmissible hearsay because their
relevance depended on the credibility of the nontestifying letter
writers.13 That is, the letters were hearsay because the factfinder
was being asked to trust the memory, perception, narrative
capacity, and sincerity of the letter writers without the benefit of
Wright may be known best for a hypothetical suggested in dicta
by Baron Parke, the author of the most influential opinion. Parke
posited a hypothetical in which the seaworthiness of a vessel is at
issue, and as evidence of seaworthiness, a party calls a witness to
testify that the captain of the ship inspected it at the dock and then
boarded with his family.1
" Parke concluded that the witness's
testimony in that situation would be hearsay, because the captain
is in effect "testifying" to the seaworthiness of the vessel, and the
factfinder 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 factfinder was asked to
make what Christopher Mueller has described as a "two-step
" From the declarant's conduct-writing a letter
proposing a business transaction or boarding a ship-the factfinder
is asked to infer the declarant's belief about some real-world
condition, in this case the competence of the recipient or the
seaworthiness of the vessel. Based on that belief, the factfinder is
asked to infer that the real-world condition existed. This type of
evidence-now packaged under the heading"implied assertions"-is
problematic because its validity turns on the un-cross-examined
belief of the declarant. Its treatment has informed the debate about
the definition of hearsay for over 150 years.'8
13. Id. at 514 (opinion of Baron Parke).
15. Id. at 516. Parke posited other hypotheticals as well, including: (1) proof that
underwriters 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;, and (5) proof that a physician allowed a
will to be executed, as evidence of the testator's competency. Id.
16. Id. at 516-17.
17. CHRISTOPHER B. MUELLER & LAIRD C. KIRKPATRICK, EVIDENCE § 8.2, at 1051 (1995).
18. See, e.g., Symposium on Hearsay and ImpliedAssertions: How Would (or Should) the
278 [Vol. 43:275
2001] MEANING, INTENTION, AND THE HEARSAY RULE 279
B. Hearsay Definitions Past and Present
Wright apparently represented the common law view of hearsay
at least until the beginning of the twentieth century.19 Courts
and commentators of that era typically eschewed formalistic
definitions" in favor of a loose, conceptual approach to hearsay,
focusing on the importance of the cross-examination of any witness
Supreme Court Decide the Kearley Case?, 16 Miss. C. L. REV. 1 (1995) [hereinafter Hearsay
Symposium] (electronic symposium addressing the problem of implied assertions and
featuring Professors Allen, Berger, Callen, Friedman, Kirkpatrick, Kuhns, Mosteller,
Mueller, Park, Scallen, Seidelman, Swift, and others). The symposium organizer, Craig
Callen, described four models for dealing with the implied assertion problem: (1) the
explicitness-based model; (2) the dangers-based model; (3) the communicative intentionbased
model; and (4) the system-based model Craig R. Calen, Foreward to the First Virtual
Forum: Wallace Stevens, Blackbirds and the Hearsay Rule, 16 MISS. C.L. REV. 1, 2-10 (1995).
19. It is not clear how seriously courts took the rule against hearsay prior to Wright. In
his thorough study of the history of evidence law, Thomas Gallanis concluded that, as of the
mid-1700s, the hearsay bar was seldom enforced. T.P. Gallanis, TheRise ofModern Evidence
Law, 84 IowA L. REv. 499, 512 (1999) ("Hearsay ... occupies much of the modern law of
evidence but in 1755 was accepted almost without comment.") (citation omitted). Eveninthe
years immediately preceding Wright, decisions applying the hearsay rule typically engaged
in little orno analysis of the hearsay definition. See, e.g., Foote v. Hayne, 171 Eng. Rep. 1310,
1310-11 (KB. 1824) (admittingone item of apparent hearsay and excluding another, without
20. Early American courts applying the hearsay concept generally avoided offering any
definition at all, working instead from an assumption that the hearsay character of the
evidence was inescapable. See, e.g., Insurance Co. v. Mosley, 75 U.S. (8 Wall.) 397 (1869)
(discussing admissibility of statements of physical condition and state of mind without
offering a definition of hearsay); Nicholls v. Webb, 21 U.S. (8 Wheat.) 326, 333 (1823)
(analyzing several hearsay issues, including declarations against interest and business
records, while stating only that "[tlhe 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. See, e.g., Melius v. Houston, 41 Miss. 59, 59 (1866) ("A witness will not be
permitted to testify to facts ofwhich he has no knowledge, and of which he is informed by the
statements of others not parties to the suit."); Salmon v. Orser, 12 N.Y. Super. Ct. (5 Duer)
511, 516 (1856X"T]he 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 ...."). The first great
American evidence treatise writer, Simon Greenleaf, described hearsay as "that kind of
evidence, which does not derive its value solely from the credit to be given to the witness
himself, but rests also, in part, on the veracity and competency of some other person." 1
SIMON GREENLEAF, ATREATISE ONTHE LAW OF EVIDENCE § 99, at 175-76 (3d ed. 1846). The
United States Supreme Court adopted Greenleafs terminology almost verbatim in Hopt v.
Utah, 110 U.S. 574, 581 (1884).
WILLIAM AND MARY LAW REVIEW [Vol. 43:275
whose credibility was at issue.21 This approach allowed for
essentially ad hoc judgments based on a range of credibility
concerns, freeing courts either to take the hearsay rule to its
Wright-inspired limits or to apply it more narrowly.2
In the twentieth century, the credibility-based approach
embodied by Wright began to fall out of favor. The reformist trend,
with its emphasis on black letter rules, emerged in the law of
evidence as in other common law disciplines.' Relying on Wigmore,
courts found a concise hearsay formulation in the language that
now seems so familiar, defining hearsay as "extrajudicial
utterances" offered to prove the "truth of the matter asserted.'
21. 1 GREENLEAF, supra note 20, § 98, at 175.
[Ilt is found indispensable, as a test of truth, ... that every living witness
should, if possible, be subjected to the ordealofa 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 for the hearsay rule apparently was that the statements of the outof-court
declarant were made in the absence of an oath. See Gallanis, supra note 19, at 533
(explaininghearsayrationales inthe eighteenth and nineteenth centuries). By the beginning
of the nineteenth century, that rationale had been subordinated to one focusing on the
absence of cross-examination. Id.
22. Although frequently cited by nineteenth-century treatise writers, Wright escaped
significant critical analysis for decades. See Charles T. McCormick, The Borderland of
Hearsay, 39 YALE L.J. 489, 498 (1930) (noting the absence of judicial analysis of Wright).
Most authorities simply ignored Wright's suggestion that nonassertive conduct could be
hearsay and elided the implied assertion problem presented by the letters. See, e.g., 1
GREENLEAF, supra note 20, § 124, at 213 (stating only that the hearsay rule "rejects all
hearsay reports of transactions, whether verbal or written, given by persons not produced as
witnesses"); MARCH PHILLIPPS & THOMAS JAMES ARNOLD, A TREATISE ON THE LAW OF
EVIDENCE 171-72 (4th American ed. 1859) (approvingly citing Wright's holding with respect
to letters, but implying that courts in England did not extend the holding to nonassertive
conduct). In practice, an enormous amount of "implied assertion" evidence almost certainly
came in without judges or lawyers recognizing the potential hearsay issue. See RICHARD 0.
LEMPERT & STEPHEN A. SALTZBURG, A MODERN APPROACH TO EVIDENCE 367 (2d ed. 1982)
("American courts have generally dealt with the problem of whether non-assertive conduct
is hearsay by failing to recognize that such conduct might present a hearsay problem.").
23. See MichaelAriens, ProgressIs Our Only Product: Legal Reform and the Codification
of Evidence, 17 LAw & Soc. INQUIRY 213, 219-29 (1992).
24. Fitzgerald v. State, 72 S.E. 541,543 (Ga. 1911) (quoting 3 JOHN HENRY WIGMORE, A
TREATISE ON THE SYSTEM OF EVIDENCE IN TRIALS AT COMMON LAw § 1768, at 2274 (1st ed.
1904)). Ironically, Wigmore refused to offer a formulaic hearsay definition. He would state
only that "the Hearsay rule, as accepted in our law, signifies a rule rejecting assertions,
offered testimonially, which have not been in some way subjected to the test of Crossexamination."
3 JOHN HENRY WIGMORE, A TREATISE ON THE ANGLO-AMERICAN SYSTEM OF
2001 MEANING, INTENTION, AND THE HEARSAY RULE 281
Over the next half century, the "truth of the matter asserted"
definition became internalized in the common law of evidence.'
With the passage of the Federal Rules of Evidence, it was formally
codified. Under Federal Rule of Evidence 801(c), hearsay is defined
as "a statement, other than one made by the declarant while
testifying at the trial or hearing, offered in evidence to prove the
truth of the matter asserted."6
The substitution of a single, concise rule for a vague, conceptual
principle necessitated some line drawing on the difficult issues
presented by Wright. Although influential commentators praised
Wright for its intellectual integrity, few wanted a hearsay rule as
broadly exclusionary as Wright seemed to require." In addition,
courts defining hearsay in "truth of the matter asserted" terms
increasingly held that Wright-type evidence was not hearsay.28
EVIDENCE IN TRIALS AT COMMON LAW § 1362, at 3 (2d ed. 1923). Later in the work, however,
in discussing statements that are not hearsay, such as verbal acts, Wigmore stated that "[if,
therefore, an extrajudicial utterance is offered, not as an assertion to evidence the matter
asserted, but without reference to the truth of the matter asserted, the Hearsay rule does not
apply." Id. § 1766, at 770-71. This is the language courts adopted. A handful of reported
decisions had used the phrase "truth of the matter asserted" to refer to hearsay prior to the
publication of Wigmore's treatise. E.g., Vietorv. Spalding, 84 N.E. 1016, 1017 (Mass. 1908);
Murray v. Boston & M.R.R., 54 A. 289,290 (N.H. 1903).
25. A definition centered on the "truth of the matter asserted" formula appeared in the
ill-fated Model Code of Evidence and in the slightly more successful Uniform Rules of
Evidence. UNIF.R. EVID. 63 ("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 is hearsay
evidence .. ); AMERICAN LAW INSTITUTE, MODEL CODE OF EVIDENCE, Rule 501(2), at 224
(1942) (adopted in no jurisdictions) ("A hearsay statement is a statement of which evidence
is offered as tending to prove the truth of the matter intended to be asserted .... "). The
formula got its real boost, however, from McCormick, who used it in his treatise. CHARLES
T. MCCORMICK,HANDBOOKOFTHEAWOFEVIDENCE § 225, at 460 (1954) ("Hearsay evidence
is testimony in court or written evidence, of a statement made out of court, such statement
being offered as an assertion to show the truth of matters asserted therein, and thus resting
for its value upon the credibility ofthe out-of-court asserter."). A series of Westlaw searches
showed that in the decade from 1945 through 1954, the year McCormick's treatise appeared,
eighteen reported decisions of state and federal courts used some variation of "truth of the
matter asserted" to define or refer to hearsay. In the decade following the publication of the
treatise, the number ofreported decisions using that formulation more than tripled, to sixtyfive.
In the following decade, coincidentally leading up to the promulgation of the Federal
Rules, the number more than tripled again, to 231 reported decisions.
26. FED. R. EVID. 801(c).
27. See Edmund M. Morgan, Hearsay andNon-Hearsay, 48 HARV. L. REv. 1138,1139-40
(1935) (proposing a definition 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).
28. The best known "implied assertion" cases have beenthose involving telephone orders
WILLIAM AND MARY LAW REVIEW
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 definition.
The drafters easily dispensed with the issue of nonassertive
conduct (Baron Parke's ship captain hypothetical). They accomplished
this by incorporating into Rule 801 the following
definition of "statement": "(1) an oral or written assertion or (2)
non-verbal conduct of a person, if it is intended by the person as an
assertion."29 By providing that conduct can qualify for hearsay
treatment only if it is intended as an assertion, the definition
unambiguously removes nonassertive conduct offered for the twostep
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.0 In the notes
following Rule 801, however, the Advisory Committee expressed its
intention to treat verbal assertions as not hearsay when offered for
the two-step inference. It did so by explaining why nonassertive
conduct is not hearsay. Although modern cognitive research teaches
that problems of misperception and poor memory are probably
placed to a gambling or drug-dealing operation and offered in evidence to prove the nature
of the business. Although statements of this type are directly analogous to the letters offered
in Wright, most American courts have held that they are not hearsay because they are not
offered for the truth of the matter asserted, but rather for the fact that they were made. E.g.,
People v. Reifenstuhl, 99 P.2d 564,566 (Cal. Dist. Ct. App. 1940); State v. Tolisano, 70 A.2d
118 (Conn. 1949); Friedman v. State, 13 S.E.2d 467 (Ga. 1941); Annotation, Admissibility of
Evidence of Fact of Making or Receiving Telephone Calls, 13 A.L.R. 2d 1409 (1950) (citing
29. FED. R. EVD. 801(a).
30. The uncertainty stems from the placement of the phrase "if it is intended as an
assertion" in the definition of"statement." Ithas been argued that because this phrase comes
immediately after the portion of the definition referring to nonverbal conduct, it modifies
only that portion of the definition. See David E. Seidelson, Implied Assertions and Federal
Rule of Evidence 801: A Quandary for Federal Courts, 24 DUQ. L. REv. 741,757-58 (1986). As
discussed in the following text, the Advisory Committee interpreted the final phrase to
modify the entire definition, thus bringing oral and written assertions within the definition
only to the extent that they are intended as assertions. See Paul R. Rice, Should Unintended
Implications of Speech Be Considered Nonhearsay? The Assertive INonassertive Distinction
Under Rule 801(a) of the Federal Rules of Evidence, 65 TEMP. L. REv. 529, 531 (1992)
("According to the Advisory Committee's interpretation of Rule 801(a), the last clause
modifies both subsections (1) and (2), thereby excluding from the definition 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.").
282 [Vol. 43:275
2001] MEANING, INTENTION, AND THE HEARSAY RULE
much more significant,"' 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 enunciated a rationale for the exclusion of nonassertive
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 nonverbal than with assertive verbal
Having spelled out that rationale, the Committee added one
more sentence: "Similar considerations govern nonassertive 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 (c)." 33 The Committee concluded that "tihe effect of the
definition of 'statement' is to exclude from the operation of the
hearsay rule all evidence of conduct, verbal or nonverbal, not
intended as an assertion. The key to the definition is that nothing
is an assertion unless intended to be one."3 The Committee thus
enunciated what might be termed an "intent-based" approach to the
hearsay rule. 5 The intent-based approach focuses on what the out-
31. See I. Daniel Stewart, Jr., Perception, Memory, and Hearsay: A Criticism of Present
Law and the Proposed Federal Rules of Evidence, 1970 UTAH L. REV. 1, 10-22 (1970)
(describing psychological studies showing deficiencies in human perception and memory).
32. FED. R. EVID. 801(a) advisory committee's note.
34. Id. (emphasis added).
35. Roger Park has described the approach in Rule 801 as "assertion-centered," in
contrast to the "declarant-centered" approach of the common law. Roger C. Park, 'I Didn't
Tell Them Anything About You" : Implied Assertions as Hearsay Under the Federal Rules of
Evidence, 74 MINN. L. REv. 783, 783 (1990) ("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.") (citations omitted). Because an approach focusing on
assertions need not rely on intended meaning, I do not use his terminology.
WILLIAM AND MARY LAW REVIEW [Vol. 43:275
of-court declarant intended to assert, and then asks whether
that intended assertion has been offered for its truth at trial. 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. 7
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.""8 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
36. Eileen A. Scallen, Interpreting the Federal Rules of Evidence: The Use and Abuse of
the Advisory Committee Notes, 28 Loy. L.A. L. REV. 1283, 1293-1301 (1995) (evaluating the
approaches of Justices Kennedy and Scalia in terms of their respective degrees of reliance
on Advisory Committee Notes).
37. See, e.g., Ronald J. Bacigal, Implied Hearsay: Defusing the Battle Line Between
Pragmatism and Theory, 11 S. Ill. U. L.J. 1127, 1144-45 (1987) ("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."); Michael H. Graham, "Stickperson Hearsay": A Simplified
Approach to Understanding the Rule Against Hearsay, 1982 U. ILL. L. REV. 887, 920 (1982)
(arguing 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"); Seidelson, supra note 30, at 758 ("[T]here 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."); Olin
Guy Wellborn HI, The Definition ofHearsay in the Federal Rules ofEvidence, 61 TEX. L. REV.
49, 92-93 (1982) (proposing a revised hearsay rule including all verbal inferred assertions in
definition of hearsay).
38. David E. Seidelson, Implied Assertions and Federal Rule of Evidence 801: A
Continuing Quandary for Federal Courts, 16 Miss. C. L. REV. 33, 51 (1995).
39. Rice, supra note 30, at 534. As Rice explained:
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.
20011 MEANING, INTENTION, AND THE HEARSAY RULE 285
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 potentiallyhearsay; 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.'2
40. See, e.g., KENNETH S. BROUN & 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."') (citation omitted);
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) (citing Advisory Committee Note and noting that "[raany
courts have found that words or conduct offered to show the actor's implicit beliefs do not
constitute statements under the hearsay rule"); GLEN WEISSENBERGER, FEDERAL RULES OF
EVIDENCE § 801.6, at 411 (1999) ([C]onduct 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) (arguing that foundation facts that must be assumed to
be true for a statement to make sense should be considered part of the "matter asserted").
41. 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).
42. See ARTHUR BEST, EVIDENCE: EXANPLES & EXPLANATIONS 74 (4th ed. 2001).
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
WILLIAM AND MARY LAW REVIEW
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.44 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.
43. See Ted Finman, Implied Assertions as Hearsay: Some Criticisms of the Uniform
Rules of Evidence, 14 STAN. L. Rav. 682, 697 (1962) (contending 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").
44. Id. at 696 (adapting facts from People v. Harrison, 258 P.2d 1016 (Cal. 1953)).
45. See supra notes 40-41 (citing treatises and cases endorsing intent-based approach).
286 [Vol. 43:275
20011 MEANING, INTENTION, AND THE HEARSAY RULE
II. THE CONCEPT OF MEANING IN RULE 801
A. Two Approaches to Meaning
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."6 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.49 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.5 The district court excluded as hearsay both the
paper and Williams's accompanying statement in a preliminary
hearing before the resulting murder trial.52
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.54 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 the
46. United States v. Day, 591 F.2d 861, 867 (D.C. Cir. 1978). Day pleaded guilty to the
robbery, Sheffey was acquitted. Id at 868.
47. Id. at 879.
48. Id. at 879-80.
49. Id- at 880.
52. Id. at 861-62.
53. Id. at 883.
WILLIAM AND MARY LAW REVIEW
information conveyed by the paper was "neutral."55 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:56
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
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 concluded 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 argued that the
evidence would be irrelevant if offered for any purpose other than
to prove that meaning."9 Accordingly, in the dissent's view, the note
55. Id. at 883-84. 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." Id. at 884 n.43 (citation omitted). 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.
Id. at 886. 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.
56. Id. at 883.
58. Id. at 894-95.
59. Id. at 894.
288 [Vol. 43:275
2001] MEANING, INTENTION, AND THE HEARSAY RULE 289
could only be offered for the truth of Williams's assertion and would
thus be hearsay.60
Although they surely did not realize it, the judges writing in Day
were engaged in a classic debate about meaning.6 The two authors
adopted the two primary approaches to meaning delineated by
linguists and language philosophers.62 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 the allure of
60. Id at 894-95.
61. Similar disputes about meaninghave beset other legal disciplines, mostprominently
the law of contracts.In reSoper'sEstate, 264N.W. 427 (Minn. 1935), is arepresentative case.
InIn re Soper, the decedent had faked his suicide several years before his death in order to
escape his wife and marry another woman. Id. at 428. He then took out a life insurance
policy naming his "wife" as beneficiary. Id. at 428-29. When he died, both women laid claim
to the proceeds. Id. at 429. The majority held the proceeds were properly paid to the second
woman, to whom the decedent apparently intended them to go. Id. at 431-32. 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." Id. at 433.
62. For a concise overview of the debate about meaning, see ALEXANDER MILLER,
PHILOSOPHY OF LANGUAGE 221-24 (1998).
63. 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. , JOHNLOCKE, ANESSAYCONCERNINGHUMANUNDERSTANDING 259-
60 (A.D. Woozley ed., Meridian Books 1969) (1689). The problem with this account,
sometimes called "mentalist," is that our ideas are subjective abstractions, leavingthe 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. See Frege, supra, at 202. 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 WrrTGENSTEIN, PHILOSOPHICAL INVESTIGATIONS § 43, at 20 (G.E.M.
Anscombe trans., 1967) ("[The meaning of a word is its use in the language.").
WILLIAM AND MARY LAW REVIEW
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.6 Interpreting the linguistic meaning of a language fragment
involves supplying the most salient conventional use of the
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.66 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."7 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 "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.69 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.70
64. See GEORGIAM. GREENPRAGMATICSANDNATURALLANGUAGEUNDERSTANDING6(2d
ed. 1996) ("The meanings of the basic expressions are conventional, and arbitrary except for
the vagaries of history."); Northwestern University / Washington University Law School Law
and Linguistics Conference, 73 WASH. U. L.Q. 785, 831 (1995) [hereinafter Law and
Linguistics Conference] (comments ofJerrold Sadock) (describing"literal meaning" in terms
of usage conventions).
65. Linguisticmeaningisthus sometimes referred to as"conventionalmeaning."See Law
and Linguistics Conference, supra note 64, at 831 (comments of Michael Geis).
66. See GENNARO CHIERCHIA& SALLYMCCONNELL-GINET, MEANING AND GRAMMAR, AN
INTRODUCTIONTO SEMANTICS 149-51 (1990) (distinguishingspeaker's meaningfrom linguistic
meaning). A variety of terms are used to refer to the phenomena of "speaker's meaning" and
"linguistic meaning." Speaker's meaning is sometimes referred to as "utterer's meaning" or
"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, supra note 66, at 151.
68. See Michael L. Geis, The Meaning of Meaning in the Law, 73 WASH. U. L.Q. 1125,
290 [Vol. 43:275
20011 MEANING, INTENTION, AND THE HEARSAY RULE
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.71 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.
B. The Approach to Meaning in Rule 801
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
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.72 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. As I will show in the next section, the
speaker'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,
71. See CHIERCHIA & MCCONNELL-GINET, supra note 66, at 148-63 (describing
relationship between linguistic meaning and speaker's meaning).
72. 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)
("[Ilnsincerity involves wanting others to come to believe false things and is a notion
independent of language.").
WILLIAM AND MARY LAW REVIEW
speaker's meaning offers an avenue for effectuating the purposes
behind the modern hearsay rule.7
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.7 Lexical ambiguity refers to words that
have multiple meanings, such as "bank" or "duck."5 Syntactic
ambiguity refers to the multiple meanings that can arise as a result
of the syntactic structure of a sentence.76 The sentence "Flying
planes can be dangerous" is an example. The sentence could 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 &
KIREPATRICK, supra note 17, § 8.12, at 820-21 (advocating analysis of declarants subjective
communicative intent); STEPHEN A. SALTZBURG, MICHAEL M. MARTIN & DANIEL J. CAPRA,
FEDERAL RULES OF EVIDENCE MANUAL 1472 (7th ed. 1998) ("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."); Callen, supra note 3, at 113
("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) (Ilntent to communicate is the key to distinguishing
between hearsay and nonhearsay under the federal definition.").
74. CHIERCHIA & MCCONNELL-GinT, supra note 66, at 32 (describing lexical and
292 [Vol. 43:275
2001] MEANING, INTENTION, AND THE HEARSAY RULE
Second, linguistic meanings are neither perspicuous nor stable.
Linguists refer to this problem as "vagueness."7 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.79
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.8" 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.8
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.8 2 In an
77. Id. at 81-82.
79. See generally STANLEY FISH, IS THERE A TExT IN THIS CLASS? (1980) (arguing that
texts are not stable and that interpretation is constrained by interpretive communities).
80. One of the most influential language philosophers to recognize the problem of the
instability of meaning is Saul 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). Linguists 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,
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. See Solan, supra note 2, at 260-62. Professor 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
WILLIAM AND MARY LAW REVIEW [Vol. 43:275
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.84
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. 5 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
83. See Law and Linguistics Conference, supra note 64, at 859 (comments of Jerrold
Sadock) ("[W]hether 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
84. 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), sayingWhen
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
Id. at 643-44 (citations omitted).
85. 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, "[ilt should be
possible for courts competently to assess declarant's (subjective) intent." Id. at 821.
2001] MEANING, INTENTION, AND THE HEARSAY RULE
exhaustive Federal Rules of Evidence Manual, Stephen Saltzburg,
Michael Martin, and Dan Capra advocate an intent-based approach
to Rule 801, while recognizing the difficulty in determining communicative
intention." To solve the dilemma, they propose an
"objective, rather than subjective, test of intent.""7 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."8 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.
Ill. DEFINING SPEAKER'S MEANING
Speaker'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.").
87. Id. at 1473.
WILLIAM AND MARY LAW REVIEW
promise of an escape from problems of ambiguity and vagueness.89
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,
Paul 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 1957 paper Meaning.91
He begins his analysis by distinguishing between two types of
meaning, "natural" and "nonnatural[sic]. Natural meaning
describes situations in which the existence of some condition entails
the existence of another condition.93 In contrast, non-natural
meaning is the product of human social convention." Consider the
following uses of the concept of meaning-
1) Screeching tires mean a car is stopping suddenly.
2) 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, I will italicize the words "mean" and "meaning" when I use
them to indicate non-natural meaning.
89. 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-proofregime provides the contextual conditions and defaults that make consistent,
defensible interpretations possible. See infra Part IV.
90. ANITAAVRAMIDES, MEANINGAND MIND: ANEXAMINATIONOFAGRIcEANAccOuNTOF
LANGUAGE ix (1989) ("It is no exaggeration to say that [Grice's theory ofmeaning] is one of
the most successfully developed analyses in the philosophical literature.").
91. H.P. Grice, Meaning, in BASIC ToPics IN THE PHIDSOPHY OF LANGUAGE 21 (Robert
M. Harnisch ed., 1994).
92. Id. at 21-22.
296 [Vol. 43:275
20011 MEANING, INTENTION, AND THE HEARSAY RULE
A brief description of Grice's symbolic abbreviations will help in
the following discussion."5 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.9 6 An utterance
can be any action, not just traditional communicative acts such as
speaking or writing. Grice represents the utterer as "U."97 The
utterance is indicated by "x."8 The utterer's audience is indicated
by "A."9 9 A response produced in the audience is indicated by "r."1°0
In Grice's only resort to the language of formal logic, "if' is shorthand
for "if and only if."1
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. 2 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. 10 3
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.1 4 In this situation, X wants the police to believe
95. The notations I give are from Grice's follow-up article, Utterer's Meaning and
Intentions. 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.
96. Grice, supra note 95, at 86.
97. Id. at 85.
98. Id. at 84.
99. Id. at 86.
102. Grice, supra note 91, at 25.
103. AVRALUDES, supra note 90, at 45 ("[TJhe 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.").
104. Grice, supra note 91, at 25.
WILLIAM AND MARY LAW REVIEW
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 thatXintend
the police to recognize X's intention to convince the police that Y
committed the crime. 106 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 the speaker that
the recognition of the speaker's communicative intention play a role
in inducing the belief the speaker wants the audience to acquire.0 7
In other words, as Grice formulates the revised definition, U means
105. 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. Xis 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
106. See Grice, supra note 91, at 25.
107. Id. at 26.
298 [Vol. 43:275
20011 MEANING, INTENTION, AND THE HEARSAY RULE
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." 9
Grice stopped at that point in his first paper. His theorywas
widely critiqued,110 and in a 1969 follow-up article, Utterer's
Meaning and Intentions,"' he responded to some of the criticism.
He began by redrafting his definition in a more formal style, as
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; and
(3) to fulfill (1) on the basis of the fulfillment
of (2). 112
He 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.1 4 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." 7 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.
110. See MILLER, supra note 62, at 228-43 (summarizing criticism of Grice's theory of
111. Grice, supra note 95.
112. 1& at 86, 94.
113. Id. at 87.
WILLIAM AND MARY LAW REVIEW
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; and
(3) to fulfill (1) on the basis of the fulfillment
of (2). 122
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;
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 [nonnatural] meaning.").
122. Grice, supra note 95, at 87.
123. United States v. Day, 591 F.2d 861,893-96 (D.C. Cir. 1978) (Robinson, J., dissenting).
300 [Vol. 43:275
20011 MEANING, INTENTION, AND THE HEARSAY RULE 301
(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
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.'24 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. 5 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.2
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.
IV. A SPEAKER'S MEANING APPROACH TO THE HEARSAY RULE
A. The Speaker's Meaning Hearsay Formula
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; 2 '
124. See id at 879-80.
125. See id.
126. See id.
127. Performatives, originally identified by the language philosophers J.L. Austin and
John Searle, 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. A speaker means a proposition
of fact if the speaker 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.'28
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.'29 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
(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).
note 4, at 228-29. 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 TalkingAbout It, Baron Parke!, 16 MIss. C. L. REV. 117
(1995) (arguing that statements with predominately performative aspects should not be
128. 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).
302 [Vol. 43:275
2001] MEANING, INTENTION, AND THE HEARSAY RULE 303
The key to the formula lies in its third element. The declarant
means the proposition if and only if he intends that her audience
reach a belief in the proposition based on the audience's recognition
of his communicative intention. Whenever the declarant's communicative
intention is not intended to be the basis for the audience's
belief in the proposition, 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
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, "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
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 propositionin the audience. For example, assume two
old friends get together to reminisce. They talk about the old times,
WILLIAM AND MARY LAW REVIEW
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, "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
130. 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
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 Professor Park's test would produce results
similar to those produced by the speaker's meaning test.
131. Indirect, intended meaning is conveyed through what Grice has identified as
"conversational implicature." See H.P. Grice, Logic and Conversation, in THE PHILOsoPHY
304 [Vol. 43:275
20011 MEANING, INTENTION, AND THE HEARSAY RULE 305
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 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 had no reason to intend to
produce a belief about a proposition based on the utterance, the
proposition probably was not a part of the speaker'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. Id. Grice has explained conversationalimplicature in terms of the
"cooperative principle," which holds that participants in a conversation cooperate with each
other by following four conversational maxims: 1) the maxim of quantity: a person's
contributions should be as informative as is required; 2) the maxim of quality: a person
should not make statements that are false or unsupported by evidence; 3) the maxim of
relation: every contribution should be relevant; and 4) the maxim of manner: every
contribution should be direct and unambiguous. Id. at 162. 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. Id. 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 [t]he 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. See id. It is sufficient that the doctor heard a statement that
would alert him to the possibility of a missing sponge. Id. Accordingly, the statement is not
WILLIAM AND MARY LAW REVIEW
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. 3 2 In such
a case, there is no risk of insincerity and, under the speaker's
meaning formula, the hearsay rule does not apply.
B. Applying the Formula
The test of any methodology lies in its application. In this section,
I apply my formula to show its usefulness in deciding real-world
hearsay issues. I begin with some basic scenarios to show the core
validity of the formula, and then move to some of the more vexing
1. The Basics
Consider the following classic hearsay situation: At the scene of
an accident, a bystander, A, says to another bystander, B, "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 speaker's
meaning formula. The statement is offered as evidence of the
proposition that the blue car ran the red light. The context strongly
suggests that A intended to produce a belief in that proposition in
B, intended B to recognize A's communicative intention, and
intended B's belief to result at least in part from B's recognition of
132. This is a conclusion that Richard Friedman has reached intuitively. He has said that
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... thenI think it is hearsay under the
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.
306 [Vol. 43:275
20011 MEANING, INTENTION, AND THE HEARSAY RULE
A's communicative intention. Note thatA may have any number of
motives for making the statement; A may have wanted to produce
the belief in B to enlighten B, to persuade B, to get confirmation
fromB, or for some other reason. As long as the hearsay test is met,
though, A'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, 13 3 or because they are not
offered for the truth of the matter asserted because the statement
has independent legal significance.'34 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. l
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
134. MUELLER & KIRKPATRICK, supra note 17, § 8.16, at 827.
135. See MCCORICK, supra note 40, § 249, at 378.
WILLIAM AND MARY LAW REVIEW
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
2. The Hard Cases
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 referred to as "verbal conduct
which is assertive but offered as a basis for inferring something
other than the matter asserted.""6 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." 37 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.
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
308 [Vol. 43:275
2001] MEANInG, INTENTION, AND THE HEARSAY RULE
assume that it is correct. Absent sufficient contextual evidence,
then, the evidence should not be deemed hearsay.
a. Orders and Requests
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 factflnder is asked to infer that the
callers believed the premises were used for drug dealing or
gambling;, from that inference, the factfinder 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
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
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.
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." Id 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).
WILLIAM AND MARY LAW REVIEW
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.'45 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 801.149
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
142. 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
143. 492 F. Supp. 464 (E.D. Ky. 1980).
144. Id. at 465.
147. Id. at 465, 469.
148. Id. at 466 n.7.
149. Id. at 469.
310 [Vol. 43:275
20011 MEANING, INTENTION, AND THE HEARSAY RULE 311
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.
150. Professor Park reached a similar conclusion through application of his "awareness"
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.
WILLIAM AND MARY LAW REVIEW
InAnderson 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. 5 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. 55 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. 5 Scholars taking a credibilitybased
approach, however, have argued that false statements are
hearsay because they depend on the credibility of the declarant for
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, Professor 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." Id.
312 [Vol. 43:275
20011 MEANING, INTENTION, AND THE HEARSAY RULE
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.
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. 6 ' 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. 61 In some cases, however, silence can
pose difficult hearsay problems, which can be resolved using the
speaker's meaning formula.
159. 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, 89 U. PA. L. REV. 192,209 (1940). 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 Peter Tiersma, The Language of Silence, 48 RUTGERS L. REv.
161. See, e.g., Cainv. George, 411 F.2d 572,573 (5th Cir. 1969) (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
WILLIAM AND MARY LAW REVIEW
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.'64 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.'65
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.166 The prosecution
argued that the jury could conclude from this evidence that Pacelli
must have told his family that he committed the murder." 7 The
court disallowed the evidence, holding that "[s]ince 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." 168
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
162. 491 F.2d 1108 (2d Cir. 1974).
164. Id. at 1111.
165. Id. at 1115-16.
166. Id. at 1115.
167. Id. at 1116.
168. Id. (citation omitted).
314 [Vol. 43:275
20011 MEANING, INTENTION, AND THE HEARSAY RULE
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.
d. Statements suggesting knowledge of facts or events
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,'69 in which a
child molestation victim was permitted to describe the defendant's
room as evidence that she had been there.'70 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.'72
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
169. 19 N.W.2d 529 (Wis. 1945).
170. Id. at 535.
WILLIAM AND MARY LAW REVIEW
hearsay only when offered for a proposition contained in its
nonnatural meaning, the girl's testimony was not hearsay.
e. Indirectly inculpatory statements
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 somethingthat
indirectly implicates an accomplice. This scenario formed
the basis for two Supreme Court decisions addressing implied
In Krulewitch v. United States,"'8 the defendant and a coconspirator,
Betty Sookerman, were charged with transporting a
woman named Joyce Sorrentino across state lines for purposes of
prostitution.'7 ' 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.""7 5
The lower courts had assumed that this testimony was hearsay,
but admitted it as a co-conspirator's statement.17 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. 77 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:
173. 336 U.S. 440 (1949).
174. Id. at 441.
176. United States v. Krulewitch, 167 F.2d 943, 947 (2d Cir. 1948), rev'd, 336 U.S. 440
177. Krulewitch, 336 U.S. at 442-43.
316 [Vol. 43:275
2001] MEANING, INTENTION, AND THE HEARSAY RULE
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.'78
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. 9 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,8 0 Alex Evans and Venson
Williams were charged with murdering three police officers.'8' 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
178. Id. at 442.
179. United States v. Knrlewitch, 145 F.2d 76, 77 (2d Cir. 1944), affd, 167 F.2d 943 (2d
Cir. 1948), reu'd, 336 U.S. 440 (1949).
180. 400 U.S. 74 (1970).
181. Id. at 76.
WILLIAM AND MARY LAW REVIEW
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." 18 2
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.1 8 The case reached the
Supreme Court on Evans's petition for a writ of habeas corpus
arguing that the statement was improperly admitted."8 4 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. 186
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." 7
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
182. Id. at 77. 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: "If that dirty s.o.b. Alex Evans hadn't
shot Everett we wouldn't be in this mess."
Williams v. State, 149 S.E.2d 449,457 (Ga. 1966).
183. Dutton, 400 U.S. at 78.
184. Id. at 76.
185. Id. at 80.
186. Id. at 82-83.
187. See Williams, 149 S.E.2d at 457.
318 [Vol. 43:275
20011 MEANING, INTENTION, AND THE HEARSAY RULE
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 speaker'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.l"a In Reynolds, the defendant, Parran, and a coconspirator,
Reynolds, were charged with possessing and attempting
to cash a stolen unemployment check. 89 They were seen
together purchasing a false identification and then conversing as
they walked to a bank.'a Parran kept walking while Reynolds went
in and tried, unsuccessfully, to cash the check.19 ' As he left the
bank, Reynolds was arrested by postal inspectors.'92 Parran then
returned to the scene of Reynolds's arrest, where, according to a
postal inspector making the arrest, Reynolds said to him, "I didn't
tell them anything about you."'9 At trial, the postal inspector
testified to Reynolds's statement. 19 4 Parran was convicted.' 95 He
appealed, arguing that the postal inspector's testimony was inadmissible
The Third Circuit agreed. Relying on both Krulewitch and
Dutton, the court adopted a credibility-based approach to the
188. 715 F.2d 99 (3d Cir. 1983). Reynolds was a focal point ofProfessor Park's widely-cited
article "IDidn't Tell Them Anything About You Implied Assertions as Hearsay Under the
Federal Rules of Evidence, supra note 35.
189. Reynolds, 715 F.2d at 100.
190. Id. at 101.
194. Id. at 100.
WILLIAM AND MARY LAW REVIEW
hearsay issue, focusing on the risk of ambiguity inherent in
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.19
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
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 Rule 801 and
whether it required a different result than might have been
permissible in its absence. Leaving that point aside, I have
suggested that there was also a substantive distinction between
Krulewitch and Dutton. The question for purposes of analyzing
Reynolds according to the speaker's meaning formula is whether
Krulewitch orDutton more closely resembles Reynolds. Once again,
unfortunately, there is not enough contextual evidence to say for
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. Reynolds
197. Id. at 103.
198. Id. at 104.
320 [Vol. 43:275
20011 MEANING, INTENTION, AND THE HEARSAY RULE 321
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 nonhearsay
treatment. In other words, we have to assume that Reynolds did not
intend to communicate anything about Parran's guilt to the
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."20 Reynolds's statement strongly
suggests Parran's guilt and was used to show Parran's guilt without
any rigorous testing for reliability.20 ' But concerns raised by the
199. 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 "you were involved"
when he said, "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.
200. Maryland v. Craig, 497 U.S. 836,845 (1990); see also Lillyv. Virginia, 527 U.S. 116,
141 (1999) (Breyer, J., 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 coconspirator.").
201. This is an issue that David Seidelson has recognized. Professor Seidelson cites the
potential contraction of Confrontation Clause protections as a reason for rejecting the
approach to Rule 801 that I advocate. See Seidelson, supra note 30, at 769 ("The nonhearsay
characterization [of verbal assertions offered for the two-step inference] was ajudgment call
or arbitrary determination made by the Committee. Such a determination cannot negate the
admission of this evidence do not necessarily undermine the intentbased
approach to the hearsay rule as effected by the speaker's
meaning formula. Rather, the problem lies in the uncompromising
integration of the hearsay rule and the Confrontation Clause. °2
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 nonhearsay 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.2 3
The application ofthe hearsay definition in Rule 801 turns on the
identification of intended assertions. The speaker's meaning
approach offers a guiding principle for making those determinations.
To identify the speaker's meaning, we need to know
constitutional guarantee of the confrontation clause when the evils to be met by the clause
in fact exist.").
202. 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, 497 U.S. 805,
815, 826-27 (1990) (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, 475 U.S. 387, 399-400 (1986) (holding that the government has no obligation to
produce an available co-conspirator hearsay declarant); Ohio v. Roberts, 448 U.S. 56,65-66,
73 (1980) (upholding the admissibility of agency admissions and introducing a two-prong
Confrontation Clause test); Dutton v. Evans, 400 U.S. 74, 88-89 (1970) (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, 399
U.S. 149,164 (1970) (holding that delayed cross-examination of a hearsay declarant satisfies
the Confrontation Clause); see also Glen Weissenberger, Reconstructing the Definition of
Hearsay, 57 OiO ST.L.J. 1525,1527 (1996) ("[T]he 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.").
203. Richard Friedman has advocated a Confrontation Clause approach that would offer
the protection that I suggest. He believes that the Confrontation Clause should assure crossexamination
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." See Friedman, et al., supra note 132, at 88-89 (comments of
Richard D. Friedman).
what she believed that the other participants in the conversation
already assumed. If the declarant and the audience shared a set of
common premises, the 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 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 speaker'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 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