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Oct. 6, 2023

How to do things with words

Verbal acts are generally not hearsay because these statements have actual effects and are therefore generally not introduced “to prove the truth of the matter stated.” Cal. Evid. Code § 1200(a).

Glendale Courthouse

Ashfaq G. Chowdhury


Columbia Law School, 2000

Every now and then, it’s useful, I think, to go back and brush up on some basics. When I started writing this occasional column a while ago, I decided to call it “Adventures in Hearsay,” with the initial idea that I would be focused on hearsay issues. But I was distracted by the shiny objects of the Ninth Circuit considering whether honking is expression and the U.S. Supreme Court weighing in on the originality of Warhol and whether doggie toys were protected by the First Amendment.

So I’m now going to try to focus. I’d like to go back to one of my favorite hearsay situations: verbal acts that are not hearsay.

The definition of hearsay is familiar to anyone who ever took a bar exam: “‘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 the federal rule puts it, “‘Hearsay’ means a statement that … the declarant does not make while testifying at the current trial or hearing … [and that] a party offers in evidence to prove the truth of the matter asserted.” Fed. R. Evid. 801(c)(2).

Verbal acts aren’t generally hearsay. What are verbal acts? Often, they’re acts that have a legal consequence. For example, “I accept,” with regard to a contractual offer; “I do,” during a marriage ceremony; “I will pay you $50 to rake the yard,” with regard to a contract negotiation; or the oath someone swears to when being sworn into an office. See, e.g., J&A Mash & Barrel, LLC v. Superior Court (2022) 74 Cal.App.5th 1, 19 (lease extension and sales agreements not hearsay because “ ‘documents containing operative facts, such as the words forming an agreement, are not hearsay’ ”); People v. Dell (1991) 232 Cal.App.3d 248, 258-59 (offers of prostitution were verbal acts and not hearsay).

Even threats or discriminatory or harassing statements can qualify as verbal acts. See, e.g., People v. Diaz (2015) 60 Cal.4th 1176, 1184 (threats not hearsay); West v. Bechtel Corp. (2002) 96 Cal.App.4th 966, 983 (statements by supervisor that employee was “too old for the job” in age-discrimination suit not hearsay).

These are statements where it does not generally matter whether the statement is “true” or not: the very act of making the statement itself has a legal effect. See, e.g., Bank of America v. Taliaferro (1956) 144 Cal.App.2d 578, 581-82 (“Utterances, written or oral, which are not merely statements or assertions offered as evidence of the truth of what is stated, but acts in themselves constituting legal results in issue in the case … do not come under the hearsay rule.”).

Verbal acts are generally not hearsay because these statements have actual effects and are therefore generally not introduced “to prove the truth of the matter stated.” Cal. Evid. Code § 1200(a). Rather, these types of statements are generally introduced to show that the statement was made, and, for example, an offer was made or accepted.

One useful way to think about verbal acts was suggested by philosopher J.L. Austin, when he described the verbal acts an umpire makes in a game: When an umpire calls a batter out, for example, that verbal statement has an actual effect in the game—regardless of the “truth” of the statement. J.L. Austin, How to Do Things with Words (1975), at 42-43. At a certain level, it doesn’t really matter if the umpire was right or wrong in calling a batter out on strike three: just the fact of calling the third strike and saying the batter is out is final and effective, within the rules of the game. Austin called these kinds of statements “performative utterances.”

“These [performative utterances] have on the face of them the look—or at least the grammatical make-up—of ‘statements’; but nevertheless they are seen, when more closely inspected, to be, quite plainly, not utterances which could be ‘true’ or ‘false.’ Yet to be ‘true’ or ‘false’ is traditionally the characteristic mark of a statement. One of our examples was … the utterance ‘I do’ (take this woman to be my lawful wedded wife), as uttered in the course of a marriage ceremony. Here we should say that in saying these words we are doing something—namely, marrying, rather than reporting something, namely that we are marrying. And the act of marrying, like, say the act of betting, is … to be described as saying certain words, rather than as performing a different, inward and spiritual, action of which these words are merely the outward and audible sign. That this is so can perhaps hardly be proved, but it is, I should claim, a fact.”

Austin, supra, at 13.

Relatedly, when a “statement” is a question, request, or demand, it’s also generally not hearsay. That’s because questions, requests, and demands are generally not asserting any fact or truth; instead, these kinds of statements are also verbal acts in that they are generally just requesting information, a response, or making some kind of demand. See People v. Jurado (2006) 38 Cal.4th 72, 117 (a request generally has no inherent truth or falsity); People v. Mayfield (1997) 14 Cal.4th 668, 741 (pleas for help “were not hearsay because they were not admitted for the truth of the matter stated”) (overruled on other grounds); People v. Bolden (1996) 44 Cal.App.4th 707, 714–715 (request that defendant “not come around the house anymore” was not hearsay because it was not offered for the truth of matter stated); People v. Reyes (1976) 62 Cal.App.3d 53, 67, 132 Cal.Rptr. 848 (“words of direction or authorization do not constitute hearsay since they are not offered to prove the truth of any matter asserted by such words”).

The issue of whether proffered statements were “verbal acts” came up recently in People v. Portillo (2023) 91 Cal.App.5th 577. That was a grand theft case, where there was a question as to the value of the stolen items (15 boxes of adjustable dumbbells). The majority opinion rejected the defendants’ contention that the trial court had erred in admitting evidence of the price listings that various retailers had posted for the dumbbells price online to help establish the fair market value of the dumbbells. The majority deemed the evidence admissible on the grounds that these price listings were “circumstantial evidence” of the fair market value of the dumbbells—but clarified that the evidence was not admissible for the truth of the matter asserted. Id. at 592.

The majority opinion noted that the California Supreme Court had observed that the hearsay analysis regarding statements ostensibly offered not for the truth of the statement “‘can prove analytically elusive when the words themselves also make an assertion.’” Portillo, 91 Cal.App.5th at 590 (quoting Hart v. Keenan Properties, Inc. (2020) 9 Cal.4th 442, 448). In the case before it, the majority saw the “challenge stem[ming] from the fact price listings on a retailer’s website … can serve multiple evidentiary purposes to prove the ultimate fact: the value of stolen items.” Id. at 591.

The majority saw a distinction between (a) using the price listings to prove the value of the items versus (b) using them as evidence of a retailer’s offer to sell the item for a specified price: “If evidence of the Walmart … price listing for $357 is presented to show Walmart was advertising the dumbbells for sale at $357, but not for the truth of whether Walmart would consummate a transaction at the advertised price (i.e., whether a customer could actually purchase the dumbbells from the retailer at this price), this would be a nonhearsay purpose because it is ‘relevant regardless of [its] truth.’” Id. at 592 (quoting Hart, 9 Cal.5th at 449).

The concurrence – which reached the same result – took issue with this approach to the evidentiary question, deeming the price listings online as offers to sell by the retailers, and thus verbal acts that were not being offered for the truth of the matter asserted:

“These offers by actual retailers to sell the dumbbells at stated prices were circumstantial evidence of a hypothetical agreement—between a willing buyer and a willing seller—that would establish the highest price obtainable in the marketplace for the dumbbells. … And that’s where my hearsay analysis would end. For purposes of proving the existence of an agreement, an offer is not a statement whose evidentiary value depends on its “truth,” but a nonhearsay “verbal act” or “operative fact” whose evidentiary value derives from whether it occurred.”

Portillo, 91 Cal.App.5th at 523 (Segal, J, concurring) (citations omitted).

Though it does feel as if the majority and concurring opinions are in heated agreement, the Portillo case raises an interesting wrinkle in the verbal-acts realm: It can feel awkward to say “these listed prices are coming in to establish the price of the dumbbells” because that seems to fly directly into the rule against hearsay. But the concurrence in Portillo feels persuasive: if the listings were offers (and they seem to have been), then evidence of the offers can come in, as verbal acts, not for any truth asserted in those statements: because the listings were not asserting that the dumbbells were objectively worth $357 or that was the true value of the items. Instead, the listings were legally operative offers to sell the items for $357. Because the offers did not assert or state any “truth” they do not come within the rule against hearsay. Cal. Evid. Code § 1200(a).

For example, if I offer Billy or Suzy $50 to rake my yard, and there is later litigation involving the question of how much the raking services of Billy or Suzy might be worth, the offer I made should come in to help establish that value – the offer was not a statement and was not asserting any truth; it was simply an offer to make a certain transaction.

Conceptually, it may help to reframe these offers as questions: “Would you, Billy or Suzy, be willing to rake the yard for $50?” Or, in Portillo, the retailer asking, “Would you, consumer, be willing to purchase this item for $357?” That reframing, to my mind, helps to demonstrate how these offers do not contain any assertions of “truth” and therefore do not fall within the ambit of the rule against hearsay.

And I’ll close with a non-hearsay offer to continue to write about hearsay topics in this space if you’ll continue to indulge me with your attention.


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