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👆🏻 A great line by Judge Hill in his dissenting opinion.
To be sure, there are times when out-of-court statements may be admitted for something other than their truth. See, e.g., Player v. Thompson, 259 S.C. 600, 610, 193 S.E.2d 531, 535 (1972) (notice). Just as surely, there are times when the familiar refrain of "it's not being offered for the truth" is the courtroom equivalent of "it's not about the money."
Rarely do cases focus so much on the basics of hearsay: the definition. However, in this court of appeals case, the majority and dissent give great arguments as to the meaning and application of "offered for the truth."
Sanders v. SCDMV is about an administrative hearing where the arresting officer testified as to what a nurse told him. In a nutshell, if a person refuses a blood test after being arrested for a DUI, then their license will be suspended. However, before an officer can request a blood test from someone in this situation, the officer must show that the person was physically unable to provide a breath test. The officer must show this by 1 of 3 ways:
the person's mouth is injured,
the person is unconscious, or
a medical personnel gives valid reason as to why the person couldn't give breath test.
In this case, the officer spoke with a nurse at the hospital who stated that the defendant was unable to provide a breath test, thus the officer then requested a blood sample and the defendant refused to give the blood sample.
At the DMV hearing, only the officer testified. The officer stated that he did not request a breath test first because the nurse told him the defendant was unable to provide one. The attorney objected because that would be hearsay (i.e., "the nurse told me that he couldn't provide one."). The hearing officer overruled and allowed in the statement because what the nurse said was not being offered for the truth, but rather to show how the officer reacted. (For a clearer statement of the facts, click here.)
The majority opinion in the CoA case upheld this ruling and stated:
Officer Desrochers' testimony regarding Nurse Albright's finding and the blood collection report she signed were not offered to prove Sanders was in fact physically unable to provide a breath sample, rather they were introduced to show Officer Desrochers received this information from a licensed medical professional and subsequently made the decision to request a blood sample. Sanders v. S.C. Dep't of Motor Vehicles, No. 2016-000228, 2019 WL 361647, at *2 (S.C. Ct. App. Jan. 30, 2019)
The Dissent
In a well-reasoned dissent, Judge Hill vehemently, but politely, disagreed with his colleague. Essentially, Judge Hill made the point that the statement was being offered for its truth, otherwise the state did not carry its burden of proving an exception applied:
"The majority's conclusion presents a paradox: it entails a finding that the truth of Nurse Albright's statements is irrelevant, while also implicitly finding that the trier of fact can use the statements to conclude the DMV has met its burden of proving Sanders was physically unable to provide an acceptable breath sample." Id.
I can see both sides to the argument, but one question sticks out to me that Judge Hill raised in his dissent. At the hearing, the state must prove that not only the defendant refused to give a blood sample, but that 1 of 3 circumstances existed in order for the officer to request the sample in the first place. The facts are clear that the defendant refused (the officer can testify to what the defendant said/did.). However, what evidence is there that 1 of 3 circumstances existed?
It appears that the evidence that the 3rd circumstance was met, is the fact that the officer acted in some way based off of the information he received. Thus his actions are the evidence. However, this seems to stray close to "investigative information" that our Supreme Court has warned about:
Nonetheless, even with this straightforward analysis, we believe it is necessary to caution prosecutors against using “investigative information” as it appears this is an attempt to circumvent the rules against hearsay... (“The fact that an officer acted on information obtained from an informant may be relevant to explain his conduct, but may not be used as a passkey to bring before the jury the substance of the out-of-court information that would otherwise be barred by the hearsay rule.”)
State v. King, 422 S.C. 47, 67, 810 S.E.2d 18, 28 (2017) (emphasis added)
Either way, the majority and dissent give well-reasoned and insightful opinions. This is a great case that explains the basics of hearsay that is often overlooked: the definition.