Intro to the Federal Rules of Evidence - 50

1. Statement
a. Oral or written assertion
The term of assertion means a “forceful or positive declaration.” U.S. v. Zenni, 492 F.Supp. 464 (E.D.Ky. 1980).

It is scarcely doubted that an assertion made in words is intended by the declarant to be an assertion. Hence, verbal assertions readily fall into the category of statement (ACN).

An oral assertion is made when a witness testifies that somebody said “…”. Any written document that is offered in evidence constitutes a statement for hearsay purposes.

EXAMPLE
Q: What did the crossing guard say to you immediately after the accident?
OPPOSING PARTY: Hearsay, Your honor.
JUDGE: Sustained.
Q: May I make an offer of proof?
JUDGE: Certainly. Proceed.
Q: If the witness were allowed to testify, he would state that the crossing guard made the following statement to him: “I saw the fire truck and heard the siren. All of the traffic stopped except for the red care in the left lane, which just ran right into the back of the blue car without even slowing down.”
JUDGE: Very well. The ruling stands. Ask another question.

EXAMPLE
Q: What was the content of the radio bulletin from the dispatcher?
OPPOSING PARTY: Objection, hearsay.
JUDGE: Sustained.

b. Non-verbal conduct intended as an assertion
Assertive conduct is treated as if it were a statement, so that it can be hearsay.

Any conduct might have assertive intent, so it might be a statement in which case it would be hearsay if offered to whatever the actor sought to express. In this setting, the burden is on the objecting party to prove that the actor had the requisite intent.

i) Nonassertive conduct
Nonassertive conduct is not conduct the declarant did not intend as an assertion but which is being offered as an assertion. Evidence of nonassertive conduct is not hearsay.

The rationale is that the likelihood of fabrication is less with nonassertive conduct than with assertive or verbal conduct.

c. By person
The hearsay rule does not apply to devices or animals.