Is a Parrot's Statement Hearsay?

Fox News reports on this evidence exam hypothetical come to life:

A Michigan man’s wife is now a suspect in his May 2015 murder, newly obtained police reports show, and a winged witness may have heard the dead man’s final plea. 

An African grey parrot might’ve overheard Martin Durham as he pleaded with his shooter before the killer pumped five bullets into Durham’s body. The bird, Bud, was heard saying “Don’t f------ shoot” in a video taken shortly after Durham’s death, WOOD reported. 

“That bird picks up everything and anything, and it’s got the filthiest mouth around,” Duram’s mom, Lillian Duram, told WOOD. 

It’s unclear if police have seen this video, or if the bird’s utterance is even admissible as evidence.

Would the video be admissible as evidence of the victim's last words? Possibly. There are two major evidence law issues I can spot right off the bat. The first is whether this evidence would be unduly prejudicial to a criminal defendant charged with Durham's murder. The defendant may argue that the bird's statement is unreliable or that it could have originated from a source other than the victim. These possibilities, the Defendant may argue, render the bird's statement significantly more prejudicial than probative and warrant exclusion of the evidence.

I'm not sure how a debate over this question would turn out, and I doubt that there is precedent on the issue. The far more interesting (and clear-cut) issue, however, is whether the parrot's statement is hearsay.




Hearsay, according to Federal Rule of Evidence 801(c), means a "statement" that:

(1) the declarant does not make while testifying at the current trial or hearing; and 

(2) a party offers in evidence to prove the truth of the matter asserted in the statement.

Is the parrot's "statement" of "Don't f------- shoot" hearsay?

A knee-jerk response would be that it is not hearsay because it is not a statement. Federal Rule of Evidence (FRE) 801(a) defines a "statement" as "a person’s oral assertion, written assertion, or nonverbal conduct, if the person intended it as an assertion."

The key word in that definition is "person's," which limits the rule to assertions made by humans, rather than animals. Accordingly, one may argue, because the parrot cannot make a "statement," it's saying, "Don't f------- shoot" cannot fall under the hearsay prohibition.

The noise the parrot makes, however, is not the only level of potential hearsay. While the parrot may not be making a "statement," it is (allegedly) imitating the victim's statement. Accordingly, the victim's statement would be a second layer of potential hearsay.

The question then becomes, is "Don't f------ shoot," as said by the deceased (and therefore, out-of-court) victim, hearsay? Probably not. There are several applicable hearsay exceptions, including: the statement was an excited utterance under FRE 803(2) or, the unavailable victim made the statement under belief of impending death under FRE 804(b)(2). Both of these exceptions appear to apply cleanly to the facts stated in the article.

Whether the parrot's statement is reliable will likely be the focus of the issue of its admissibility. The parrot may have picked up the statement from the radio or television, or from some other person before or after the victim's death. Whatever the outcome of the undue prejudice argument, the hearsay argument is ultimately the clearer debate.

Incidentally, I explored an almost identical case in a Youtube video I made long ago for an Evidence class project.  Here it is (and see if you can spot all the Big Lebowski quotes):