The Delaware Rules of Evidence provide that “hearsay,” as defined in the Rules, is not admissible except as provided by law or by the Rules.1

The definition of “hearsay” in the Rules is phrased in terms of a “statement” made by a “declarant.” A “statement” is defined as “an oral or written assertion” or’ “nonverbal conduct of a person if it is intended by him as an assertion.”2 A “declarant” is defined as “a person who makes a statement.”3 “Hearsay” is defined as “a statement, other than one made by a declarant while testifying at a trial or hearing, offered in evidence to prove the truth of the matter asserted.”4 Thus, the issue of “hearsay” arises in the context of testimony by a witness or in a writing describing what another person said or did. If the other person is a party to the lawsuit, his or her statements are likely to constitute admissions or confessions and are not subject to the hearsay rules applicable to non-party declarants.5

There are two significant omissions from this definition. First, the definition of “statement” does not include verbal or non-verbal conduct that is not intended to be an assertion. This has the effect of excluding from the category of hearsay words and conduct not intended to be an assertion, even though the effect of the words or conduct is to constitute an assertion.6 Thus, a question is not an assertion for hearsay purposes, at least to the extent that the question is not intended to state facts.6.1  Similarly, an instruction is not deemed to be an assertion of fact.6.2

Second, the definition of “hearsay” includes only verbal and non-verbal conduct offered in evidence to prove the truth of the matter asserted and thus excludes non-assertive words and conduct and also words and conduct intended to assert something different from what is sought to be proved. Both exclusions eliminate from the definition of hearsay verbal acts such as words uttered by a declarant in appointing an agent. These have traditionally been excluded from the category of inadmissible hearsay.7 The second exclusion permits the admission in evidence of assertions the truth of which is immaterial, such as those used where the evidentiary value is to explain a person’s conduct or to prove that a person had notice or knowledge of something7.1, or to show the effect of the statement on the listener.7.2 These also have been traditionally excluded from the category of inadmissible hearsay. Thus, reference by a detective on the witness stand to out-of-court statements implicating the defendant were admitted as non-hearsay to explain why he believed the defendant to be a suspect, but not to prove the contents or accuracy of the statements.8

Both exclusions in combination appear to exclude, and so permit in evidence, utterances intended to be an assertion of something other than a fact sought to be proved, but from which an inference may reasonably be drawn as to a fact in issue in the lawsuit. The exclusions from the definition of “hearsay” resolve a difference in view as to this type of proof by permitting admission into evidence of assertions by a declarant of matters not in issue but offered as creating an inference to establish a fact in issue.9 This type of evidence is illustrated in a will contest in the English courts, eventually appealed to the House of Lords, which rejected such evidence as inadmissible hearsay. The issue was the mental competence of the testator. The dispute revolved around letters written to the testator which did not contain direct evidence of the testator’s competence, but contained discussion of such a character which the proponents argued the writers of the letters would not have so written unless they believed the testator to be sane. The evidence was rejected on the ground that it should stand on the same basis as an explicit declaration by the writers that the testator was sane and therefore should be barred as inadmissible hearsay.10 The definitions in Rule 801(a), (b) and (c) dictate a result opposite to this by excluding such evidence from the category of hearsay.

The reason given by the Federal Rules Advisory Committee for excepting from the category of hearsay non-verbal acts and verbal acts not intended to assert the fact for which it is offered as evidence is that situations giving rise to verbal or non-verbal conduct of this type are such as virtually eliminate questions of sincerity.11 The idea may be expressed by the colloquial aphorism that “actions speak louder than words.”

Consonant with the foregoing, evidence that a person remained silent in circumstances where a person may be expected to deny or complain will not be barred by the hearsay rule,12 although it may be otherwise barred when the silence occurs after a criminal defendant has been arrested or placed in custody.13

If a party objects to testimony or other evidence of the verbal or non-verbal conduct of a person not on the witness stand that is being offered on the basis that such evidence is intended to be an assertion of a fact or facts sought to be proved, the court will have to make a preliminary determination as to the admissibility of the evidence.14 The Advisory Committee Note to the comparable federal rule states that the burden of proof is on the objecting party and that ambiguous or doubtful cases are to be resolved in favor of admissibility. The Advisory Committee also indicates that the motivation of the person whose conduct is the subject of the testimony, as well as the nature of the conduct, will bear heavily on the weight to be accorded to the evidence.15

In H v. H,16 the trial court accepted testimony of the daughter as to a telephone conversation between a wife and a third party but excluded testimony as to what the third party said on the ground of hearsay. The testimony was offered to show marital misconduct on the part of the wife. The Delaware Supreme Court reversed on the ground that the truth of the statements was immaterial and the only significance to the statements was not their truth, but the bearing the fact that the statements were made had on the issue of marital misconduct. The statements, therefore, were not hearsay.17

In appropriate circumstances, a party may ask a witness if he or she made an inquiry of others as to whether an event occurred at a given time and place and whether the response to the inquiry by people in a position to know was affirmative or negative. If the witness replies that he or she received a negative response from those responding to the inquiry, such an answer is admissible non-hearsay since it merely demonstrates the inability of the witness to discover, after a diligent search, that the event occurred. The fact that the inquirer received a number of negative responses is circumstantial evidence of the non-existence of the fact in question.18 Use of this type of testimony generally is permitted only as to questions about investigations of the existence or location of a particular piece of real evidence or of potential witnesses.19

The fact that verbal and non-verbal conduct not intended as an assertion is not excluded by the hearsay rule does not necessarily mean that proof of such conduct will be admitted into evidence. The court must be satisfied that the proffered evidence is relevant,20 that the inference from the conduct is sufficiently probable and that the probative value of the proffered evidence is not substantially outweighed by the danger of unfair prejudice, confusion of the issues or misleading the jury or by considerations of undue delay, waste of time or needless presentation of cumulative evidence.21 Furthermore, since a witness may not testify about a fact unless there is sufficient evidence that he or she has personal knowledge of the matter,22 an assertion implied from words or acts of a person may be barred in the absence of evidence that the person whose words or conduct are sought to be proved had knowledge of the fact sought, to be proved.23

When a court is uncertain whether a statement constitutes hearsay, the correct course is to admit the statement and allow the jury to determine its weight, in the absence of evidence of prejudice.23.1

1. D.R.E. 802.

2. D.R.E. 801(a).

3. D.R.E. 801(b).

4. D.R.E. 801(c). This comports with the pre-Rule definition. See Katz v. Exclusive Auto Leasing, Inc., 282 A.2d 866, 869 (Del. Super. 1971).

5. See §§ 17:3-4.

6. See Sutherland v. Sutherland, C.A. No. 2399-VCN, slip op. at 25 n. 66, Noble, V.C. (Del. Ch. May 3, 2010) (statement of agreement to purchase airplane constituted verbal act giving rise to a legal obligation, and so was not hearsay). The Federal Advisory Committee’s note to Federal Rule of Evidence 801(a) leaves no doubt that the phrase “intended to be an assertion” applies to oral and written assertions as well as non-verbal conduct. Fed. R. Evid. 801(a) advisory committee’s note. Since Delaware Rule of Evidence 801(a),(b) and (c), defining hearsay and its included terms, track the language of the federal rule, and since the United States Congress approved the federal rule as submitted, the advisory note is persuasive. D.R.E., preamble.

6.1. State v. Russo, 700 A.2d 161, 177 (Del. Super. 1996), aff’d mem., 694 A.2d 48 (Del. 1997).

6.2.  Estate of Robert B. Rochester, Jr. v. Reyes, C.A. No. N13-07-371 JAP, slip op. at 3, Clark, J. (Del. Super. Dec. 3, 2015)

7. Geylin v. De Villeroi, 7 Del. 311, 2 Houst. 311, 319 (Del. Super. 1860).

7.1. Edwards v. State, 924 A.2d 1281, 1286 (Del. 2007) (where the significance of an offered statement lies solely in the fact that it was made, no issue is raised as to the truth of the matter asserted, and the statement is not hearsay); Saudi Basic Industries Corp. v. Mobil Yanbu Petrochemical Corp., 866 A.2d 1, 21 (Del. 2005).

7.2  Estate of Robert B. Rochester, Jr. v. Reyes, C.A. No. N13-07-371 JAP, slip op. at 3-7, Clark, J. (Del. Super. Dec. 3, 2015) (doctor’s instruction to patient admissible as circumstantial evidence that patient acted in response to that instruction).

8. Whalen v. State, 434 A.2d 1346, 1355 (Del. 1980), cert. denied, 455 U.S. 910 (1982). See also Johnson v. State, 587 A.2d 444, 447 (Del. 1991).

9. Fed. R. Evid. 801(a) advisory committee’s note.

10. Wright v. Tatham, 112 Eng. Rep. 488 (Exch. Ch. 1837), and 5 Cl. & F. 136 (H.L. 1838).

11. Fed. R. Evid. 801 advisory committee’s note.

12. See D.R.E. 801(d)(2)(B). For a discussion of adoptive admissions, see § 17:2.

13. See Brown v. Dugger, 831 F.2d 1547, 1551 (11th Cir. 1987). See also § 17:4.

14. D.R.E. 104(a).

15. Fed. R. Evid. 801 advisory committee’s note.

16. H. v. H., 358 A.2d 724 (Del. 1976).

17. This decision predated the adoption of the Delaware Rules of Evidence but is fully in accord with Rule 801. Because the brief opinion does not disclose the precise nature of the telephone conversation, it is not possible to determine from the opinion whether the conversations constituted non-assertive verbal conduct or whether they were assertive but offered as a basis for asserting something else. Moreover, since the wife was a party, the statements by the third party to her may have merely served as an element of statements made by the wife, possibly constituting verbal acts.

18. Dutton v. State, 452 A.2d 127, 143 (Del. 1982); State v. Webb, Cr. A. No. 1N86-03-1503, slip op. at 5-6, Babiarz, J. (Del. Super. Mar. 19, 1993).

19. State v. Webb, Cr. A. No. 1N86-03-1503, slip op. at 5-6, Babiarz, J. (Del. Super. Mar. 19, 1993).

20. D.R.E. 401, 402.

21. D.R.E. 403.

22. D.R.E. 602.

23. The absent person making the out-of-court statement is considered, like the hearsay declarant, to be a witness and thus subject to the provisions of Rule 602. See generally Fed. R. Evid. 803 advisory committee’s note.

23.1. Wright v. State, 818 A.2d 950 (Del. 2003).

© 2016  David L. Finger