Hearsay and Implied Assertions

Question 1

Rule 801(a)

Answer 1

• Definition of a Statement
• “statement” means a person’s oral assertion, written assertion, or nonverbal conduct, IF THE PERSON INTENDED IT AS AN ASSERTION

Question 2

Implied Assertions

Answer 2

• nonverbal conduct only counts as a statement when it is intended as a form of communication - whatever it may imply does not count as a statement + therefore not hearsay
  -> ie. non-assertive conduct is NOT hearsay
• same w/ verbal conduct - if your statement implies something other than what you intended to communicate, it’s not hearsay (rationale is there is no matter asserted)

Question 3

United States v. Zenni

Answer 3

• illegal bookmaking operation - callers gave directions over phone for placing bets + gov agents picked up -> they’re not trying to tell anyone that it’s a bookmaking op, they’re just genuinely trying to place bets, but that attempt implies it IS a bookmaking op
• circumstantial ev from which jury could infer that the place called was a bookmaking op
• court allowed in - said not hearsay

Question 4

Rationale Behind Implied Assertions

Answer 4

• we assume primary problem with hearsay is speaker may be lying - cross-exam necessary to resolve this
• vs. if you’re not asserting something intentionally, we assume you wouldn’t lie to yourself
• note there are those who think Advisory Committee got it wrong here - argue there are other problems with hearsay aside from deception

Question 5

Ex of Sea Captain

Answer 5

• takes family on boat after thorough inspection - we say non-assertive conduct + therefore not hearsay
• can be used to prove seaworthiness of vessel

Question 6

Who decides implied assertions and under what standard?

Answer 6

• trial judge decides under Rule 104(a), under the preponderance of the evidence standard

Question 7

Ex with the Parrot

Answer 7

• parrot says “Harry don’t shoot” -> wouldn’t be hearsay b/c theoretically a plea rather than an assertion, plus implying about to shoot but not directly asserting it
• vs alternate wording would be hearsay “Harry, why are you pointing a gun at me?”

Question 8

Questions to Ask in Determining Hearsay

Answer 8

• Is there an assertion?
• Is it offered for the truth?
• Is there a hearsay exception?
• WORDING ALWAYS KEY

Question 9

Ex of Buying Car

Answer 9

• ambiguous - if your response to “Is Harry trustworthy?” is “I wouldn’t buy a car from him”, could argue either way that it’s hearsay (think I lean towards it is)