At an evidence CLE at the South Carolina Bar Convention in Greenville this year, a judges’ panel discussed a hearsay issue, raising the issue of whether a witness’s out-of-court utterance—which was in the form of a question—constituted hearsay. For example, assume that a police officer asked a defendant at the time of arrest, “Can you explain why a bag of weed was sitting on your lap when I came in the room?” The officer who asked the question did not attend the trial, and the solicitor wants a witness to testify that he overheard the officer asking the question.

Is the police officer’s question inadmissible hearsay? Is a question even a “statement” for hearsay purposes? Under grammatical rules, a statement is a declarative sentence, and a question is an interrogative sentence, and never the twain shall meet. Courts have come to three different conclusions.