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Ever Heard of Implied Hearsay?

101771660Most of us think about hearsay in connection with facts that are expressly stated. But an out-of-court statement that’s offered to prove the truth of the facts implied by the statement is also hearsay and inadmissible unless an exception applies. You may not have heard the term implied hearsay, but you’ve likely encountered it.

Implied hearsay is what the speaker intended or what the hearer believed the speaker meant. Implied facts may be inferred from an express statement whenever it’s reasonable to find that:

  • the declarant in fact intended the implication of his or her express words; or
  • the person hearing the express statement would reasonably believe that the declarant intended the implication.

Whether an implied hearsay statement will be admissible ordinarily depends on the logical connection between the express statement and the inference the proponent seeks to draw.

Here are some common types of implied hearsay statements:

Service bill. An invoice or a bill for services rendered, such as medical treatment or automobile repairs, is a prime example of an implied hearsay statement derived from express words. For example, a physician’s bill generally itemizes dates of the patient’s visits, the charges, and abbreviated descriptions of services. Such itemization could constitute an implied hearsay statement by the physician that on each date listed the patient came to the office and received medical treatment; the patient was in need of the treatment rendered; the amounts charged are reasonable for the services rendered; and if the bill is stamped “paid,” that the physician has received payment. But you can get such bills admitted under a judicially-created exception to the hearsay rule for a service bill as corroborative evidence of testimony that the bill was incurred or paid, and that the charges are reasonable. PG&E v G.W. Thomas Drayage & Rigging Co. (1968) 69 C2d 33, 42, 69 CR 561.

Utility bill found on premises. A frequently recurring situation involves the offer of a utility bill or other mail addressed to a defendant at a particular address found on the premises to prove that the defendant is the possessor or occupant of the premises at the street address on the bill or envelope. Although such evidence appears to fit within the implied hearsay rule, California courts have generally found it admissible as nonhearsay. See People v Williams (1992) 3 CA4th 1535, 1541, 5 CR2d 372.

Telephone calls received at crime scene. Another common type of implied hearsay is evidence of telephone calls received at a crime scene offered to prove that criminal activity occurred on the premises. For example, while executing a search warrant, a police officer receives a phone call made to that location in which the caller offers to buy drugs. Courts generally admit such evidence, not as implied hearsay within an exception, but as nonhearsay, circumstantial evidence that the premises were used for illegal purposes. See People v Nealy (1991) 228 CA3d 447, 452. There is an alternate view that such telephone calls are, in fact, hearsay and therefore inadmissible unless an exception to the hearsay rule applies. See People v Scalzi (1981) 126 CA3d 901, 906, 179 CR 61.

Implied hearsay is no less problematic than express hearsay. Both present the same danger of lack of trustworthiness in terms of the declarant’s untested accuracy of perception, recollection, and narration. Because the declarant is not before the court, under oath, and subject to cross-examination, the trustworthiness of his or her implied statement can’t be determined by the trier of fact.

Have you ever claimed that particular evidence was implied hearsay or had to argue an exception to the hearsay rule for implied hearsay? Share your experiences in the comments.

Implied hearsay is discussed in detail, including illustrations of the rule, in CEB’s Jefferson’s California Evidence Benchbook, chapter 1.

Related CEBblog™ posts:

© The Regents of the University of California, 2014. Unauthorized use and/or duplication of this material without express and written permission from this blog’s author and/or owner is strictly prohibited.

3 replies on “Ever Heard of Implied Hearsay?”

It would seem to me that Implied hearsay would be even more problematic than normal hearsay because it requires additional analysis of whether it is reasonable to find that:
•the declarant in fact intended the implication of his or her express words; or
•the person hearing the express statement would reasonably believe that the declarant intended the implication.
To determine the “intent” of the declarant is difficult enough, but when you add the second prong of the analysis, it seems even more elusive.

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