§ 31.07 "STATEMENT" DEFINED; "IMPLIED ASSERTIONS" — FRE 801(A)

• Jurisdiction: United States

§ 31.07. "STATEMENT" DEFINED; "IMPLIED ASSERTIONS" — FRE 801(a)

Rule 801(a) defines a person's "statement" as an oral or written assertion or nonverbal conduct, if the person intended it as an assertion. The first part of this definition is not controversial. If offered for the truth, verbal and written assertions clearly present the hearsay dangers — lack of cross-examination concerning a declarant's perception, memory, narration, and sincerity. Tape recordings, including the audio part of a video tape, come within this definition.

Conduct, however, is problematic. The critical distinction under the Federal Rules is between assertive and nonassertive conduct.

[A] Assertive Conduct

Sometimes people use conduct to communicate — e.g., a hearing-impaired person employing sign language. Or, suppose a police officer asks: "Did Jones rob you?" You reply by nodding your head. You intend to communicate; the nod is hearsay. It is the same as if the officer had asked: "Who robbed you?" and you said, "Jones." Similarly, if the officer asks the same question and you point to Jones, your conduct in pointing is hearsay.

Rule 801(a) treats conduct intended as an assertion (assertive conduct) as hearsay,⁶⁵ and the above examples illustrate why.⁶⁶ The conduct presents the hearsay dangers inherent in perception, memory, narration, and sincerity untested by cross-examination.

[B] Nonassertive Conduct

Conduct that is not intended by the declarant to be an assertion is far more troublesome. The topic is often labeled "implied assertions," but this term itself is somewhat misleading.⁶⁷ The issue has sparked a lively debate among evidence scholars for many years,⁶⁸ and the Federal Rules only further fueled the debate.⁶⁹

The leading case is Wright v. Doe D' Tatham.⁷⁰ It involved the competency of John Marsden to make a will. To prove his testamentary capacity to do so, the beneficiary under the will (Wright) offered letters that had been written to Marsden by a cousin, a vicar, and a curate. If these letters had stated, "Dear Marsden, you old competent testator," they would have been hearsay. Instead, these letters merely discussed everyday affairs.⁷¹ Thus, they did not say that Marsden was competent, but they indicated that the letter-writers (the declarants) believed that he was mentally competent, and from this belief, Wright wanted the triers-of-fact to infer that indeed Marsden was competent. The House of Lords ruled the letters inadmissible hearsay,⁷² a position rejected by the Federal Rules.

The judges in Wright offered several examples: (1) a person's election to high office as evidence of that person's sanity and (2) the conduct of a sea captain who, after examining a ship, embarks on it with his family as evidence of the vessel's seaworthiness. In the first example, the voters did not intend to make a statement about sanity, and in the second, the sea captain did not intend to make a statement about seaworthiness.

Other examples are (1) a woman opening an umbrella as evidence that it is raining and (2) a driver moving from a stopped position at a traffic light as evidence that the light had changed from red to green.⁷³ Once again, the actor does not intend to make a statement about the weather in the first example; she intends only to keep dry. Nevertheless, the hearsay danger of perception (it could be argued) is present, and cross-examination would aid in probing its dimensions. Perhaps the umbrella was opened merely to test its operation or the woman needed to be protected from direct sunlight due to some skin ailment. Under a declarant-focused definition, these acts should be considered hearsay because their probative value depends on the credibility of the declarant.⁷⁴

Federal rule. Although the federal drafters recognized that nonassertive conduct may present some hearsay dangers, they believed that such conduct did not present a substantial risk of insincerity and should, therefore, not be classified as hearsay.⁷⁵ That is to say, if a person does not intend to make an assertion, insincerity issues are significantly reduced or eliminated. Moreover, "actions speak louder than words." What is more trustworthy: a sea captain who tells you that a ship is seaworthy or one who gets on the ship as it is leaving port?⁷⁶ In any event, that argument won the day for the federal drafters.⁷⁷ The fact that the hearsay issue is often overlooked by lawyers in this context is cited as a supporting rationale for this position.⁷⁸

Example. Suppose that during a police raid of an illegal gambling operation, the telephone rings and a detective answers it without identifying himself. The caller says, "Put $50 on Diggie in the fourth at Belmont." Under the Federal Rules, the statement is not hearsay, even if offered by the prosecution to prove that the location was used for illegal betting.⁷⁹ The cases hold that the caller did not intend to make an assertion that the place was being used for gambling.⁸⁰ This view is supported by the drafters comments: "The rule is so worded as to place the burden upon the party claiming that the intention existed; ambiguous and doubtful cases will be resolved against him and in favor of admissibility."⁸¹

[1] Nonverbal and Verbal Nonassertive Conduct

Note that nonassertive conduct may be verbal as well as nonverbal. Placing a gambling bet over the phone involves verbal conduct but the hypotheticals (e.g., the sea captain and voters) involve nonverbal conduct, as does the umbrella example.

Some commentators have thought this distinction significant,⁸² but not the federal drafters. The verbal nonassertive cases are the most difficult cases. If the statement if offered to prove something not directly asserted but only implied, it is not hearsay under the Federal Rules.⁸³

[2] Silence

Can silence ever be an assertion? In Silver v. New York Cent. Ry. Co.,⁸⁴ a passenger claimed to have suffered circulatory problems due to a four-hour train stop in Cleveland during the winter. The defendant railroad company proffered the testimony of the porter that other passengers...