As the Assault on Massachusetts Avenue problem demonstrates, hearsay issues arise when conduct is treated as an assertion. However, assume that the conduct is nonassertive. What hearsay problem does nonassertive conduct present?

In relying upon nonassertive conduct, the chain of inferences involves a trip through the mind of a nontestifying actor and conceptually presents hearsay problems. But Rule 801(a)(2) defines "statement" in a way that excludes such nonassertive conduct. Hence, nonassertive conduct is conceptually, but not legally, hearsay. Problems arise because it is sometimes difficult to grasp what is and what is not an "assertion"; conduct often has both communicative and noncommunicative purposes. Under Rule 801(a), conduct is not an assertion unless it is intended to communicate something. The Advisory Committee's Note to Rule 801(a) states that the burden is on the party claiming that an intention to assert existed; "ambiguous and doubtful cases will be resolved ... in favor of admissibility."

Yet even when the conduct is clearly nonassertive, and thus not hearsay under the Federal Rules, the factfinder may still be relying on the testimonial capacities of the out-of-court actor. Further, "inferential assertions"--assertions about something other than the point for which the statement is offered--may be admissible as nonhearsay under the Federal Rules approach despite their dependence on the testimonial capacities of the out-of-court declarant. More than ever, to find one's way through this thicket, one must understand the purpose for which the statement is offered and the intention of the assertion or reason for the conduct.


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