33 Rocky Mt. L. Rev. 133-138 (1960)

It is time to go to lunch. When you left home for the office in the morning it was raining and you brought your umbrella. Will you need it at lunchtime? You consult your secretary, she looks out the window, and tells you that you had better take your umbrella. If, in some subsequent litigation, the question should arise whether it was raining when you went out to lunch, would the secretary be permitted to testify that when she looked out she saw a number of passers-by with their umbrellas up? More precisely, would her testimony as to what she saw these people do be equated to what she would have heard them say, had she called out, asked them whether it was raining, and they had replied that it was?

Or, take another one: You drive up to signal-controlled intersection and pull up behind a large truck and trailer which has stopped at the near side of the intersection. The truck and trailer block your view of the traffic light. In a moment or so the truck moves ahead and you follow it. If, in subsequent litigation, the question arises whether the light had changed to green when you started up, may you testify, as tending to show that the light had changed, that the truck driver had moved ahead before you did? More precisely, would your testimony as to what you saw the truck driver do, be equated to what you would have heard him say had he, before moving ahead, called back to tell you that the light had changed?

Of course, if, in either of these supposititious situations, the conduct proposed to be shown is to be treated as merely equivalent to an assertion of the fact the evidence is offered to establish, we are in trouble with the hearsay rule. And by many cases (probably in most of those where the hearsay question has been identified and raised) evidence of extra-judicial conduct, relevant only as an "implied assertion" of the fact the evidence is offered to prove, is within the hearsay ban. Put otherwise, where evidence of non-verbal conduct is relevant only as supporting inferences from the conduct to the belief of the actor and thence to the truth of his belief, prevailing doctrine stigmatizes the evidence as hearsay, inadmissible unless accommodated within one of the exceptions to the rule. Thus, it seems quite correct to say that in situations of this sort, the "hear-say" rule actually operates as a "see-do" rule.

In the instances supposed, the conduct offered to be proven was completely "non-verbal"; but an identical problem arises where the conduct, although "verbal," is relevant, not as tending to prove the truth of what was said, but circumstantially, that is, as manifesting a belief in the existence of the fact the evidence is offered to prove. As a matter of fact the leading case equating an "implied" to an "express" assertion and thus stigmatizing the evidence as hearsay, concerned the admissibility, in a will contest, of evidence of the writing of a letter to the testator by the vicar of the parish about a matter of consequence, relevant not as evidence of the truth of anything in the letter, but as manifesting the vicar's apparent belief in the testator's mental competency as tending to prove competency.

And in a Texas case, where defendant was charged with stealing his grandmother's cow which he admittedly sold while she was away, his defense being that she had authorized him to sell the cow, evidence (offered by the prosecution) that on her return home she demanded of the purchaser the cow rather than the balance of the purchase price, was held inadmissible as hearsay; it amounted merely to her extra-judicial "implied" assertion that she had not authorized the sale. A similar question has arisen in prosecutions for the maintenance of a betting establishment when the prosecution has offered to prove incoming telephone calls, during the raid, by callers seeking to place bets. Here again, while the conduct sought to be shown is "verbal," relevancy does not depend on a direct hearsay use of the utterances but only upon acceptance of the calls as "implied" assertions of the character of the place to which the calls were directed.

The same problem arises with respect to evidence of "non-action" or "silence" when relevant as justifying inferences from the non-action of the individual to his apparent belief and thence to the truth of that belief. While there is a division of authority with respect to the applicability of the hearsay rule to evidence of this sort, it is undoubtedly correct to say that in most cases where the hearsay objection has been urged, it has been sustained. The typical case has to do with the admissibility, on an issue of the quality of goods, of evidence of the failure of other purchasers to complain.

In any of these situations, the hearsay objection is likely to be overlooked. This is especially so when the evidence concerns "nonverbal" conduct because the hearsay rule is almost always, in the abstract, phrased in terms of "statements" or "utterances" and the possible application of the rule to "conduct" may not be immediately apparent. And the same is true, although perhaps to a lesser degree, when the evidence is of "verbal" conduct relevant only circumstantially. Cases are legion consequently where the hearsay objection, with strong supporting authority, might have been raised but was not.

But ought the hearsay rule be deemed applicable to evidence of conduct? As McCormick has observed, the problem "has only once received any adequate discussion in any decided case," i.e., in Wright v. Tatham.... And even in that case the court did not pursue its inquiry beyond the point of concluding that evidence of an "implied" assertion would be inadmissible. But as has been pointed out more than once (although I find no judicial recognition of the difference), the "implied" assertion is, from the hearsay standpoint, not nearly as vulnerable as an express assertion of the fact which the evidence is offered to establish.

This is on the assumption that the conduct was "non-assertive"; that the passers-by had their umbrellas up for the sake of keeping dry, not for the purpose of telling anyone it was raining; that the truck driver started up for the sake of resuming his journey, not for the purpose of telling anyone that the light had changed; that the vicar wrote the letter to the testator for the purpose of settling the dispute with the latter, rather than with any idea of expressing his opinion of the testator's sanity. And in the typical "conduct as hearsay" case this assumption will be quite justifiable.

On this assumption, it is clear that evidence of conduct must be taken as freed from at least one of the hearsay dangers, i.e., mendacity. A man does not lie to himself. Put otherwise, if in doing what he does a man has no intention of asserting the existence or non-existence of a fact, it would appear that the trustworthiness of evidence of this conduct is the same whether he is an egregious liar or a paragon of veracity. Accordingly, the lack of opportunity for cross-examination in relation to his veracity or lack of it, would seem to be of no substantial importance. Accordingly, the usual judicial disposition to equate the "implied" to the "express" assertion is very questionable.

This is not to say that the "implied" assertion is completely free of hearsay infirmities or that cross-examination of the individual would not be helpful. His opportunity to observe the event or condition in question, the quality of the sense-impressions which he received, and of his recollection, are all matters which bear upon the trustworthiness of his conduct, and, ideally, these ought to be subject to being probed by cross-examination. Nonetheless, the absence of the danger of misrepresentation does work strongly in favor of by-passing the hearsay objection, at least where the evidence of conduct is cogently probative. And it will be, where the action taken was important to the individual in his own affairs, e.g., the action of the vicar in communicating with the testator, the action of the truck driver in moving ahead....

Accordingly, it has sometimes been suggested, that the admissibility of evidence of non-assertive conduct should depend on a preliminary finding by the judge that the conduct was of a sort "as to give reasonable assurance of trustworthiness," that is to say, that it was of substantial importance to the actor in his own affairs. But for application in the "heat and hurry" of the trial, such a solution leaves a good deal to be desired. As Thayer observed, "we should have a system of evidence, simple, aiming straight at the substance of justice, not nice or refined in its details, not too rigid, easily grasped and easily applied."

The "simple, easily grasped and easily applied" rule, "not nice or refined in its details," would seem to be one which would eliminate completely the hearsay stigma from evidence of non-assertive conduct. Because such conduct is evidently more dependable than an assertion, there is rational basis for the differentiation. And there is a cogent practical argument for such a rule in the circumstance that experience has shown that very often, probably more often than not, and understandably, the hearsay objection to evidence of non-assertive conduct is overlooked in practice with the result that the present doctrine operates very unevenly.

Such is the solution proposed by the [Federal] Rules of Evidence.... Non-assertive conduct is excluded from the definition of hearsay. Precisely, a statement (so as to be subject to the hearsay ban) would include only "non-verbal conduct of a person intended by him as a substitute for words in expressing the matter stated." This, it seems clear, would operate to eliminate the hearsay stigma from evidence of conduct unless it appeared to the judge that what was done was done for the sake of asserting the fact the evidence is now offered to establish.

This does not mean that all non-assertive conduct would be provable. There would remain the question of relevancy; and even though the evidence appeared to possess some slight probative value, it would be subject to exclusion under Uniform Rule 45 if the judge concluded that probative value was "substantially out-weighed" by the "counter-factors" enumerated in that rule: that to receive the evidence would take more time than it is worth, that it would confuse the issues, mislead the jury, create undue prejudice or unfairly surprise the opponent....

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