Is Statement That Not Offered to Prove the Truth Considered Hearsay ?
Hearsay is "a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." Rule 801, SCRE".
'If, then, an utterance can be used as circumstantial evidence, i.e. without inferring from it as an assertion to the fact asserted, the Hearsay rule does not oppose any barrier, because it is not applicable.'"
Player v. Thompson, 259 S.C. 600, 609-10, 193 S.E.2d 531, 535 (1972) (testimony of defendant automobile driver, who was called by plaintiff injured passenger, that several weeks prior to accident filling station attendant had stated to driver and wife of owner that automobile had bad tires would be receivable, not as testimonial assertion by attendant to prove fact of slick tires, but as indicating that driver and wife, who gave driver permission to use vehicle, obtained knowledge of slick tires, the fact of slick tires being proved by other evidence; inasmuch as testimony was not offered to prove truth of matter asserted but solely to prove notice, which is a state of mind, the hearsay rule did not apply) (quoting 6 John Henry Wigmore, a Treatise on the Anglo-American System of Evidence in Trials at Common Law 1788 (3d ed. 1940)).
A statement that is not offered to prove the truth of the matter asserted should not be excluded as hearsay. Hawkins v. Pathology Assocs., 330 S.C. 92, 498 S.E.2d 395 (Ct. App. 1998) (allowing admission of letters, an anniversary card, and video to show close familial bond between decedent, her husband, and her children in malpractice action).