Hearsay is “a statement that: (1) the declarant does not make while testifying at the current trial or hearing; and (2) a party offers in evidence to prove the truth of the matter asserted in the statement.” MRE 801(c). An assertion is something capable of being true or false. See People v Jones (On Rehearing After Remand), 228 Mich App 191, 204-205 (1998), modified in part and remanded 458 Mich 862 (1998)1 (concluding that a command is not an assertion because it is incapable of being true or false). Similarly, an “implied” assertion does not actually qualify as an assertion, and therefore, cannot be hearsay. Jones, 228 Mich App at 225-226.
“Hearsay is not admissible unless [the MREs] provide otherwise.” MRE 802. “[T]he basic objection to hearsay testimony is that if a witness offers an assertion made by a declarant who does not testify—and if the assertion is offered as evidence of the truth of the matter asserted—the trier of fact is deprived of the opportunity to evaluate the demeanor, responsiveness, and credibility of the declarant, particularly because the declarant cannot be tested by cross-examination.” People v Sykes, 229 Mich App 254, 261-262 (1998).
Generally, “a photograph of someone is not a ‘statement’ for hearsay purposes,” although “nonverbal conduct can sometimes be considered a ‘statement’ for hearsay purposes when that conduct is intended by the person as an assertion[.]” People v Smith, 336 Mich App 79, 111-112 (2021) (quotation marks and citation omitted). Where Facebook comments made by non-testifying third parties were coupled with photographs and “offered by the prosecutor to establish the truth of the matter asserted, i.e., that defendant was called Brick Head[, and] [t]here was no exception to the hearsay rule applicable to the comments, . . . the trial court abused its discretion by admitting the comments into evidence.” Id. (further finding that there was no evidence in the record to support a finding that nonverbal handgun symbols in a photograph “were intended as statements offered for the truth of some matter asserted,” and admission of the photograph did not violate the rule against hearsay).
“[T]he admission of evidence in violation of the hearsay rule does not result in automatic reversal.” Smith, 336 Mich App at 115-116 (holding “that the erroneous admission of . . . exhibits was harmless,” “[g]iven the cumulative nature of the hearsay evidence, as well as all of the other evidence that placed defendant at the scene of the crime and provided him with motive”).
Committee Tip:
In addressing a hearsay objection, the following analysis may be helpful:
•Is the proposed evidence a statement, as defined in MRE 801(a)?
•Was the statement made by someone other than the witness while testifying?
•Is the statement being offered to prove the truth of the matter asserted?
•If the proposed evidence is an out-of-court statement, is it admissible because (1) it is being offered for a nonhearsay purpose (i.e., not for the truth of the matter asserted); (2) it is not hearsay under MRE 801(d);2 or (3) it falls under an exception contained in MRE 803, MRE 803A, or MRE 804?3