Federal Rule of Evidence 801(c) defines hearsay as "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." A "statement," according to Federal Rule of Evidence 801(a) requires an "assertion." Moreover, the Advisory Committee Notes to Rule 801(a) provide that in order for the assertion to fall within the definition of hearsay, it must be "intended as an assertion." This article explores the five categories of extrajudicial declarations or conduct identified in the Advisory Committee Notes to Rule 801(a): verbal assertions; nonverbal conduct intended to be assertive; nonverbal conduct not intended to be assertive; nonassertive verbal conduct; and, assertive verbal conduct. The author concludes that the Advisory Committee's desire to have "implied assertions" characterized as nonhearsay should be rejected by the courts for several reasons. First, he finds that it is unsupported by the reasoning behind the Advisory Notes, the language of Rule 801 and the legislative history of the Rules. Second, he believes that this characterization is incompatible with the sixth amendment. Finally, it interferes with the efficacy of cross-examination which, the author argues, must be preserved.
David E. Seidelson,
Implied Assertions and Federal Rule of Evidence 801: A Quandry for Federal Courts,
Duq. L. Rev.
Available at: https://dsc.duq.edu/dlr/vol24/iss3/3