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Can it be Hearsay if Nothing is Actually Said?

November 15, 2019

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<p style="text-align: justify;">Hearsay is a part of evidence class in law school, but given all the exceptions, exemptions, and frankly, statements that simply are not hearsay, professors could spend an entire semester examining hearsay alone.  Hearsay is an out of court statement introduced into evidence by a litigant to prove the truth of the matter asserted by the statement’s declarant. What about signage though? Signs say things. When, if ever, is a sign hearsay?   Consider two hypothetical cases where pictures of signs are the only factual bases for the claims against the impleaded parties.</p>
<p style="text-align: justify;">In the first case, a picture of a truck’s signage was attached to a third party summons and complaint. The truck in the picture, with a company name on the side, was at a slip-and-fall accident scene, and a defendant used the picture of the truck to implead the truck owner. Assuming the picture is properly identified by the person who took it, the picture itself is probably not hearsay. The litigant who introduces this picture into evidence is not introducing it to prove the truth of the matter asserted by the sign, which is just that the truck is owned by the insured. Therefore, the sign on the side of the truck probably isn't hearsay at all, and is admissible.   Moreover, the litigant is likely trying to prove that the insured was present and doing work at the accident scene on the day of the accident.   If the litigant were trying to introduce the sign with the limited purpose proving that the insured owned the vehicle, it would be hearsay, but admissible hearsay under rule Rule 801(d)(2)(D) as an inscription, sign, tag or label affixed in the course of business and indicating ownership.  We think the sign on the truck is admissible, based on these facts.</p>
<p style="text-align: justify;">In the second case, there is a dashboard placard, with nothing on it but the insured’s name. Specifically, a for-hire driver his holding up a sign to the plaintiff’s camera with the insured car service’s name on it. The for-hire driver, by holding up the placard for the passenger is attempting to communicate something beyond what the sign says. specifically, that “I am driving for this company right now.” This, surely, is “nonverbal conduct of a person intended by that person as an assertion.” Rule 801(a). It would not qualify as admissible hearsay under rule 801(d)(2)(D) since the driver’s expressive conduct means to assert something beyond what the sign says. Without that driver’s testimony—and indeed, he is nowhere to be found— the picture could be excluded, and prompt a dismissal of the car service from the suit.</p>
<p style="text-align: justify;">Signs, signs, everywhere signs.....Thanks to Jon O'Brien for his contribution to this post.  Please email <a href="mailto:BGibbons@wcmlaw.com">Brian Gibbons</a> with any questions.</p>

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