The Hearsay Paradox: Declarant-Witnesses' Own Out-Of-Court Statements

Rule 801 of the Texas Rules of Evidence defines hearsay as, “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.” Based on this rule, every attorney, and most non-attorneys, recognizes that when a witness takes the stand and attempts to testify about something someone else said to him or around him, such testimony is potentially objectionable hearsay. But, does the same rule apply when a witness takes the stand and attempts to testify to something that he personally said out-of-court? Of course, most of the time an exception or an exclusion will apply and the declarant-witness’s out-of-court statement will be admitted. However, what happens when there is no exception or exclusion that fits the situation? Unfortunately, there are no United States Supreme Court or Texas Supreme Court cases that directly address this issue. As a result, some courts and attorneys operate under the assumption that a witness testifying in court can testify to any out-of-court statement that the witness made, and that the hearsay rule does not prohibit such testimony because the witness is present and subject to cross-examination. According to these courts and attorneys, the presence of the witness in court, and the fact that he is subject to cross-examination, provide the sufficient safeguards of trustworthiness and credibility of such out-of-court statements. However, the mere presence of the witness in the courtroom, and subjecting that witness to cross-examination, do not give “equivalent circumstantial guarantees of trustworthiness,” or any other indicia of reliability that the exceptions or exclusions to the hearsay rule provide. Further, if an out-of-court statement is not hearsay merely because the declarant is testifying in court as a witness, then the question becomes: why then would Texas Rule of Evidence 801(e)(2), which excepts from hearsay certain party opponent’s out-of-court statements, be necessary? One would never need to ask, for example, whether a prior statement was inconsistent or made under penalty of perjury under Rule 801(e)(1)(A)(i). The proper answer would always be that it doesn’t matter because any out-of-court statement by a testifying witness is not hearsay, whether inconsistent or not and whether under penalty of perjury or not. One would never need to be concerned with whether a prior consistent statement was made before the motive to fabricate arose or whether there was a charge of recent fabrication under Rule 801(e)(1)(B), because any prior statement of the witness would not be hearsay, whether made pre-motive or not, and whether there was a fabrication charge or not. Indeed, if it was the law that any prior statement of a witness is not hearsay merely because declarant is testifying presently, then Rules 801(e)(1)(A), (B) and (C) would all be superfluous. This article will examine the various lower court opinions that address the application of the hearsay rule to out-of-court statements made by a witness who testifies during trial, along with the various state and federal rules related to hearsay, in order to show why a witness’ own out-of-court statements, if offered for the truth, should be considered hearsay, and should be excluded unless an appropriate exclusion or exception applies. While the text of the hearsay rule appears to be clear, the application of the rule is less clear and less certain when the courts are presented with a situation in which a witness is offering testimony about an out-of-court statement that he made himself. It is far too easy for an attorney to argue, “your honor, the witness is here in court, so any questions opposing counsel has can be addressed on cross-examination.” But that argument is neither supported by the text of the hearsay rule, nor is it supported by the logic that underpins the hearsay rule. An examination of the rules and cases in this area make that clear.