Can a question be hearsay?

|The Volokh Conspiracy |

From Commonwealth v. Parker (Pa. Super. Ct. Nov. 6, 2014) (an appellate decision), quoting another recent case:

Whether a question can be an assertion and, thereby, hearsay has been extensively discussed by numerous courts and commentators, though no consensus has been reached. The courts that have considered the issue have reached one of three conclusions: (1) a question can be hearsay if it contains an assertion; (2) a question can be hearsay if the declarant intended to make an assertion; or (3) questions can never be hearsay because they are inherently non-assertive.

The court adopts approach 1, which strikes me as correct. Here is an excerpt from the facts of the case, and from the court's application of approach 1 to the facts:

Appellant objects to the following questioning of Grandmother by the Commonwealth:

Q. Can you describe for the members of the jury what he said, what [Victim] said?

A. He said, Grandmom, he said, Can you tell Bey I didn't take anything from anybody and I don't have anything? He said, But can you tell him I didn't take anything from him or the house. And I said, Put Bey on the phone and I will tell him you been in the house all day and you just went out on the porch…

… In this case, the questions asked by Victim clearly included an implied assertion. In particular, the questions included the implied assertion that Victim had not taken "anything from anybody" and that Victim did not "take anything from ["Bey"] or the house." The questions also include the implied assertion that "Bey" did not believe Victim.

Although we hold that the questions by Victim were assertions, we conclude that the trial court's alternative holding, that Grandmother's testimony was admissible under Pennsylvania Rule of Evidence 803(3), was correct. That Rule provides that:

The following statements, as hereinafter defined, are not excluded by the hearsay rule, even though the declarant is available as a witness ….

A statement of the declarant's then existing state of mind, emotion, sensation, or physical condition, such as intent, plan, motive, design, mental feeling, pain, and bodily health. A statement of memory or belief offered to prove the fact remembered or believed is included in this exception only if it relates to the execution, revocation, identification, or terms of declarant's will.

"Generally, out[-]of[-]court statements by homicide victims are admissible when they are relevant to show proof of motive or malice." In [Commonwealth v. Puksar, 740 A.2d 219, 225 (Pa. 1999)], our Supreme Court held that the victim's statement that he had a dispute with the defendant over model trains was admissible under the state of mind exception.

In this case, Victim's questions to Grandmother showed that an individual named "Bey" had a motive to kill Victim. Specifically, Bey believed that Appellant had taken something from somebody. Bey also believed that Victim was not in Grandmother's house earlier in the day. This situation is akin to Puksar as Victim's statements showed that there was a dispute between Victim and Bey. Thus, Victim's assertion was clearly relevant to show that Bey had a motive to kill Victim. As such, it was admissible under Pennsylvania Rule of Evidence 803(3). Accordingly, the trial court did not err by admitting Grandmother's testimony regarding her conversation with Victim prior to the murder.

A great case for people who are interested in the logic of the hearsay doctrine.