In "The Evidence Rules Every New Trial Lawyer Should Know," a recent article for the American Bar Association Litigation Section, 3rd U.S. Circuit Court of Appeals Judge Joseph Greenaway Jr. begins with this thought: "The definition of hearsay is straightforward."

Objection, your honor; no foundation - not in the abstract, not in the Federal Rules of Evidence and most definitely not in Texas.

What new (and old) trial lawyers should know is that the definition of hearsay in Texas is complex. And complexity in the rules of evidence creates opportunities for effective advocacy, as it does in every other area of the law. To really see why, let's look at the Delaware Supreme Court's opinion in Capano v. State (2001).

Tom Capano was a married Wilmington, Delaware lawyer who secretly was dating Anne Marie Fahey. On June 27, 1996, the two went to dinner in Philadelphia. Fahey was never seen again. In 1997, the state charged Capano with her murder and wanted to offer an April 7, 1996 entry from Fahey's diary as evidence at his trial: "I finally have brought closure to Tom Capano. What a controlling, manipulative, insecure, jealous maniac."

(As reported by the Philadelphia Inquirer, last week Capano, 61, died in his cell at a state prison near Smyrna, Delaware. He was serving a life sentence for the murder of Fahey, whose body was never found.)

Anyone who wants to be a trial lawyer should know the answer to this question: Is the diary entry more likely to be considered hearsay in Texas in federal or state court?

The answer is state court, and the explanation highlights the crucial and eminently exploitable distinction between the definition of hearsay contained in Federal Rules of Evidence 801(a)-(c) and Texas Rules of Evidence 801(a)-(d) - FRED and TED, as we like to call them.

The casual reader of the rules would think that the definitions of hearsay were identical, because they are. Whether under FRED 801(c) or TED 801(d), "'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 asserted" - word-for-word identical.

But TED, unlike FRED, includes a definition of "matter asserted," and that's where the complexity comes in.

To make that application crystal clear, under the Delaware hearsay rule - which is the same as the federal hearsay rule - if the state offers Fahey's diary entry to prove that she recently "brought closure" to Capano or to prove that he was a "jealous maniac," that's hearsay. That's what she asserted. But if the state offers the entry to prove that she knew Capano, that's not hearsay. (It may be irrelevant, or more prejudicial than probative, but that's an article for another day.) That's not the "matter asserted," except in Texas - maybe.

The obscurity of the answer stems from an addition to TED. Texas rule 801(c) defines "matter asserted" to include "any matter implied by a statement, if the probative value of the statement as offered flows from declarant's belief as to the matter" (emphasis added). [See related chart, below]

What does that addition mean? What if Fahey's statement was offered in a Texas state court to prove that she knew Capano? Would that be hearsay?

If "matter implied" means "intending to be implied by the declarant," then the statement would not be hearsay unless the court found that was what Fahey was trying to convey. But then the Texas rule would be no broader than the federal definition.

If, however, "matter implied" means "any matter that can logically be implied after the fact, so long as the probative value of the statement as offered flows from declarant's belief as to the matter," then the statement is hearsay under TED. That's because the probative value of the implication flows from Fahey's belief that she knew Capano.

This complexity has not been resolved in the courts of Texas. There is no clear answer. Thus, while the federal rule has been frequently criticized for not defining "matter asserted," the Texas rule has substituted a different (and somewhat paradoxical) complexity by defining "matter asserted" to include "matter implied," but not defining "matter implied."

This substitution leaves plenty of arguing room for effective advocacy for a broad or narrow hearsay analysis. Trial lawyers need to base their arguments on the core hearsay principles, such as evidentiary necessity, witness availability, the statement's intended use at trial and its indicia of reliability. Complexity creates opportunity, and opportunistic trial lawyers are what clients should want.

The Federal and Texas Definitions of Hearsay

FRED 801(a)-(c)

  1. Statement. A "statement" is (1) an oral or written assertion or (2) nonverbal conduct of a person, if it is intended by the person as an assertion.
  2. Declarant. A "declarant" is a person who makes a statement.
  3. Hearsay. "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 asserted.

TED 801(a)-(d)

  1. Statement. A "statement" is (1) an oral or written verbal expression or (2) nonverbal conduct of a person, if it is intended by the person as a substitute for verbal expression.
  2. Declarant. A "declarant" is a person who makes a statement.
  3. Matter Asserted. "Matter asserted" includes any matter explicitly asserted, and any matter implied by a statement, if the probative value of the statement as offered flows from declarant's belief as to the matter.
  4. Hearsay. "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 asserted.