[New York Jets quarterback]Sanchez didn't even have the stomach to watch [his team's] winning field goal. Instead he watched the reaction of the Colts, who didn't look too happy about the course of events. Only then Sanchez knew that one obstacle had been cleared, that he had graduated from an impossible matchup against Manning to another one against Tom Brady.This conduct was non-assertive conduct and thus non-hearsay under the Federal Rules of Evidence, correct?
But question: Suppose the Colts had thrown up their hands, cheered, and jumped around. Would that have been non-assertive conduct or would it have been assertive -- "Hey, we won!" -- conduct?
It's here: the law of evidence on Spindle Law. See also this post and this post.
4 comments:
Without a definition of "assertion" in FRE, assume it means an intentional communication. Were they intending to communicate the result to anyone (they all knew it), or is their behaviour merely circumstantial fact and admissible? I think the latter in each case. But if they intended to tell the witness who reports it to the court what the result was, their conduct would be hearsay because it was an implied assertion of the result.
As you know, the question arises in cases where people who want to buy drugs leave messages indicating readiness to purchase. In the absence of those people as witnesses, is a record of those communications evidence of the defendant's willingness to supply drugs? There is no intention to communicate "you are a supplier", so the calls are circumstantial facts, not hearsay. Just as the spectators react to the result of the game, the callers are reacting to the fact that the defendant is a dealer.
U.S. Federal Rule of Evidence 801(a)(2) provides that conduct is a "statement" for purposes of the hearsay rule only if the conduct is intended as an assertion. The U.S. Federal Rules of Evidence (as interpreted) reach an analogous conclusion with regard to statements that assert X but are offered to show Y: federal courts have approved the drafters' theory, or rationale, that such statements are not hearsay because they are not offered to prove the truth of the matter asserted. (So the only "implied statements" under the Federal Rules of Evidence are conduct that is intended as an assertion. The FRE deliberately reject the common law "implied statement" theory developed by Baron Parke in Wright v. Thatam.)
Thanks for that Peter.
Yes, we seem to have the same position here, being great admirers of New Englanders going back to Thayer et al.
I try to avoid saying "implied statement" and use "implied assertion" instead. It seems that implied assertions can only be implied from express assertions (written, oral or behavioural), that is from intended communications.
The term "implied statement" could suggest a statement implied from something that was not an intended communication, when the better analysis of that is that it is an inference from a circumstantial fact.
So the crowd reaction in your question is a circumstantial fact supporting an inference of the result of the game, not supporting an inference of an implied statement.
But if the witness reported the supporters saying "We won!" that would be an express assertion and hearsay as to its truth. In the crowd context there would be sufficient reliability to make the hearsay admissible, but if just one supporter said it afterwards there may not be sufficient indications of reliability.
The crowd context at the game makes it res gestae - inherently reliable.
The Tatum example of writing to the testator as evidence that he had the necessary mental sanity to understand the letter(s) was hearsay and inadmissible, would now not be hearsay but would be admissible as circumstantial evidence of mental state. Similarly, speaking to someone in Latin would be circumstantial evidence that he understood that language, and no hearsay issue arises.
This is like the orders from customers as circumstantial evidence of the defendant's ability to supply.
Similarly with the seaworthiness of the ship example in Tatum. There is no prior statement from which to imply an assertion, just circumstances to support an inference.
Anyway, your football example is interesting. By football I assume you mean that woosie form of rugby your people play. Padding and helmets, I beseech you.
The celebration of victory at a sporting match is, I think, tricky: By jumping up and down etc. are the spectators or players just celebrating or are they also saying (asserting) "We won!" If we peer into the heads of the people doing the celebrating, we might well discover that at least some of them have both things in mind. If so, the hypo raises a question about whether modern law puts too much emphasis on the question of the existence vel non of an intent to assert.
Our football -- U.S. football, of course, is not real football (except occasionally). As a callow youth, I actually wanted to play soccer. But in those days in central Ohio, soccer was an aberration and was suitable only for sissies. So I could only dream. But Australian "football"?!? It's even worse (if that's possible) than American football. Your players surely lose their eyes and ears as well as break their legs etc.
Post a Comment