Back-to-school hearsay quiz: Your California evidence law refresher

It's back-to-school season. In L.A., this doesn't involve crisp autumn weather (the opposite, actually), but maybe we can get in the spirit with a back-to-school quiz -- on hearsay! 

The quiz below might be a fun way to brush up on that old favorite hearsay issue of mine: statements not offered for their truth, or verbal acts. Just to refresh, let's recall the definition of hearsay in California. Hearsay evidence is evidence of a statement that was made other than by a witness while testifying at the hearing and that is offered to prove the truth of the matter stated. (Cal. Evid. Code § 1200(a).)

As discussed in a previous column (A. Chowdhury, "How to Do Things with Words," Daily Journal, Oct. 6, 2023), verbal acts are often statements that have legal or independent consequences -- regardless of whether the statements are "true" or not. They can be, inter alia:

• Offers or acceptances in contract negotiations (J&A Mash & Barrell, LLC v. Superior Court (2022) 74 Cal.App.5th 1, 19);

• Threats or discriminatory or harassing statements (People v. Diaz (2015) 60 Cal.4th 1176, 1184); (West v. Bechtel Corp. (2002) 96 Cal.App.4th 966, 983);

• Defamatory statements (Russell v. Geis (1967) 251 Cal.App.2d 560, 571-72), or

• Commands or directives. (People v. Curl (2009) 46 Cal.4th 339, 362).  

The point with these types of statements is that the statement was made and that the very making of the statement -- whether it is "true" or not -- has legal or other implications. (The classic example being someone saying "I do" at a wedding ceremony.) These statements are not generally being introduced "to prove the truth of the matter stated." (Cal Evid. Code. § 1200(a).)

With that brief refresher out of the way, it's time to open your Trapper Keeper, sharpen your pencil and take the quiz. (Full disclosure: I tried to use ChatGPT to compose an initial draft of this quiz, but the draft was so terrible that I had to scrap it and write my own questions and answers. Legal quiz-making remains a human endeavor -- for now.)

Answers at the end of the quiz. (For the sake of this quiz, assume relevance is not an issue.)

1. During a breach-of-contract trial, plaintiff testifies that the defendant said: "I accept your offer to buy the equipment for $5,000."

Is this hearsay?

A. Yes, it's an out-of-court statement offered for the truth.

B. No, because it's a verbal act with independent legal significance, regardless of the truth of the matter asserted, if any.

C. Yes, unless the defendant testifies to this.

2. In a defamation trial, plaintiff offers a bystander's testimony that the defendant said: "John is a thief."

If offered to prove that a defamatory statement was made, is the statement hearsay?

A. Yes, because it's a statement about John's character.

B. No, because it is a verbal act with independent legal significance.

C. No, because the defendant is a party opponent.

3.  In an unlawful-detainer action, a witness testifies that he heard the landlord say to the defendant tenant: "Your rent is late."

If offered to prove that the tenant was late on this rent, is this hearsay?

A. Yes, because it's an out-of-court statement offered for its truth.

B. No, because it is a verbal act.

C. Yes, unless the landlord testifies.

4. In a personal-injury case involving a bar fight, a witness testifies that the owner of the bar said to the instigator of the fight: "You're banned from this bar forever."

Is this hearsay if offered to prove that the instigator was banned by the bar?

A. Yes, because the statement was made outside court.

B. No, because it is a verbal act.

C. Yes, unless the owner testifies directly.

5. In a criminal case for extortion, the defendant allegedly said: "If you don't pay me $10,000, I'll leak the photos."

The prosecution offers this to show a threat was made. Is it hearsay?

A. Yes, because it's offered to show that it's true that a threat was made.

B. No, because threats are verbal acts.

C. No, because it's an admission of a party opponent.

6. In a suppression hearing in a criminal matter, the police officer testifies that the defendant, in response to his request to search the defendant's car, said "I consent."

If offered to prove that the defendant consented to the search, is this statement hearsay?

A. Yes, because it's being used to show the truth of the matter asserted.

B. No, because it's a verbal act of giving legal consent.

C. No, but only if defendant testifies to the statement.

7. During a criminal trial, the prosecution seeks to introduce prescription bottles with the name of the defendant printed on them.

Are the prescription-bottle labels hearsay if presented to prove that the pills belonged to the defendant?

A. Yes, the statements on the labels are being used to prove the truth of the matter asserted.

B. No, because the typing of the defendant's name on the prescription bottles was a verbal act of identification.

C. No, because the labels are not being offered for the truth of any matter.

8. In a criminal case, a police officer testifies that he asked a bystander where the defendant hid the money and, in response, the terrified bystander silently pointed at a nearby car trunk.

If the statement is offered to show that the defendant hid the money in the car trunk, is it hearsay?

A. No, because it's a non-verbal act of identification.

B. No, because the passerby was not offering testimonial evidence.

C. Yes, because the non-verbal statement is being offered for the truth of the matter asserted.

9. At a suppression hearing in a criminal case, a police officer testifies that another armed police officer standing next to the defendant as defendant's house was being searched by other armed officers told the defendant that he was "free to leave."

If this testimony is offered by the prosecution to help establish that the defendant was in fact free to leave, is this hearsay?

A. Yes, unless the officer who made the statement testifies.

B. Yes, because it's being offered for the truth of the matter asserted.

C. No, it's a verbal act with independent legal significance.

10. In a personal-injury case, a witness testifies that he heard the defendant ask the plaintiff, "Are you okay walking up the stairs?"

Is this hearsay if offered to prove that the defendant asked this question to the plaintiff?

A. Yes, because it's offered to show that it's true that the defendant asked this question.

B. Yes, unless the plaintiff also testifies that he heard this question.

C. No, because it's not offered for the truth of the matter asserted.

 Answer key and explanations:

1. B - "I accept your offer" is a verbal act in contract law - a legally operative statement.  (See J&A Mash & Barrell, supra, 74 Cal.App.5th at 19; People v. Dell (1991) 232 Cal.App.3d 248, 258-59 [offers of prostitution were verbal acts).]  As soon as a party who has received an offer says "I accept" or words to that effect, a contract is formed. (Tripplet v. Workers' Comp. Appeals Bd. (2018) 25 Cal.App.5th 556, 565.) It doesn't matter what secret motives or intentions the accepting party might have had.  (See, e.g., iDrive Logistics LLC v. Adagio Teas Inc. (Utah Ct. App. 2022) 519 P.3d 912, 918 [citing Delaware law] [ "[A]n overt manifestation of assent, not a subjective intent, controls the formation of a contract," and therefore, "[t]he unexpressed subjective intention of a party is ... not relevant." Acierno v. Worthy Bros. Pipeline Corp., 693 A.2d 1066, 1070 (Del. 1997); see also Leeds v. First Allied Conn. Corp., 521 A.2d 1095, 1101 (Del. Ch. 1986) ("It is basic that overt manifestation of assent -- not subjective intent -- controls the formation of a contract . ..."].)

2. B - The defamatory statement is a verbal act when offered to show that the statement itself was made, regardless of truth. (Russell, supra, 251 Cal.App.2d at 571-72.)  The statement itself is the offending act.  Yes, truth might be a defense in a defamation action (Hughes v. Hughes (2004) 122 Cal.App.4th 931, 939 n. 17 ["[t]ruth remains an absolute defense to a defamation action"]), but for the plaintiff's case, the offending statement is not hearsay.

3. A - This is an out-of-court statement being offered for the truth of the matter asserted (i.e., that the tenant was late on rent).  (Cal. Evid. Code § 1200(a).)  The statement would not appear to have any independent legal effect.

4. B - The owner's edict banning the patron forever is a verbal act, the equivalent of a directive telling the patron to stay away.  (Curl, supra, 46 Cal.4th at 362.)  Giving a command, telling someone to "Get out!" etc. does not generally convey a truth assertion; it's simply a command or directive.  (See, e.g., Knight v. State (Miss. 1992) 601 So.2d 403, 406-08 [testimony that bystander told motorist "Boy, you better get out of here" was not offered for the truth of any matter asserted].)

5. B - A threat is a verbal act if offered to show that the threat occurred, not its truth. (Diaz, supra, 60 Cal.4th at 1184.)  This is akin to the defamatory statement in Question 2.

6. B - A statement giving consent to a search is a verbal act with legal effect upon utterance.  (U.S. v. Moreno (7th Cir. 2000) 233 F.3d 937, 940.)  in some ways, this is akin to the contract acceptance in Question 1.

7. A - The names on the labels are out-of-court statements being offered for the truth of the matter asserted, i.e., that the pills belonged to the defendant. (See Nesje v. Metropolitan Coach Lines (1956) 140 Cal.App.2d 807, 810 [name inscribed on label identifying blood is hearsay when offered to establish whose blood was in the container].)  So in the absence of any exception, it's hearsay, in my humble opinion. That said, the California Supreme Court raised some doubts about whether names in this type of context will continue to be hearsay in California in the somewhat surprising decision in Hart v. Keenan Properties (2020) 9 Cal.5th 442.  That case was discussed at length in a previous column: (A. Chowdhury, "What's in a name?" Daily Journal, May 27, 2022)

8. C - This is sort of the flip side to verbal acts: a nonverbal statement. Nonverbal acts like this one can qualify as statements under the hearsay rule.  (People v. Covarrubias (2016) 1 Cal.5th 838, 886 ["A statement [for hearsay purposes] includes nonverbal conduct of a person intended by the person as a substitute for oral or written verbal expression." (Evid. Code, § 225.) "For purposes of the hearsay rule, conduct is assertive if the actor at the time intended the conduct to convey a particular meaning to another person."] [cleaned up]; see also State v. Townsend (S.C. Ct. App. 1996) 467 S.E.2d 138, 141 [testimony regarding firemen's gestures pointing out driver of car in response to law enforcement's inquiries was hearsay].)

9. C - This is kind of a tricky one, but it's likely not hearsay -- rather, a verbal act, in my view.  In these circumstances, it likely doesn't matter whether the officer was being sincere when he told the defendant he was "free to leave." The statement by the officer has independent legal significance: Specifically, it's in effect an advisement that the defendant was not formally under arrest, even though the defendant may have subjectively not felt free to leave. (See, e.g., U.S. v. Craighead (9th Cir. 2008) 539 F.3d 1073, 1087-88 [discussing factors considered in determining when a defendant is deemed "in custody" because a reasonable person in the defendant's position would not feel free to leave, even if the defendant is not formally placed under arrest].)  It's the equivalent of saying "You're not under arrest"; a statement from an officer to an individual saying "You are under arrest" would almost certainly be a verbal act, and not hearsay.

10. C - The question is not being offered for any truth statement contained in the question; it's being offered to show that the question was asked.  This is slightly different than the standard verbal act, but it falls within the same rubric of statements not offered for the truth of the matter asserted.  (Cal. Evid. Code § 1200(a).)  Generally, questions are not hearsay -- unless there is an explicit or implicit assertion contained within the question.  (See, e.g., People v. Reyes (2021) 12 Cal.5th 285, 326-27 [noting that questions that contain implicit claims about facts or express ideas can be statements asserting certain truths for hearsay purposes].)  Here, there is no such assertion, just a pure question, which is being offered not for the truth of any matter asserted in the question, but to show that the question was asked.

How'd you do?  Hopefully, you aced this quiz and are ready for the new school year.  If not, better hit those books! Specifically, the California Evidence Code, 2025 edition. We'll spice up the next quiz with the motley crew of hearsay exceptions.