Brief Fact Summary. During a lawful search for evidence of illegal bookmaking activity, conducted pursuant to a valid search warrant, law enforcement answered the phone several times.
Synopsis of Rule of Law. Implied assertions, though they were considered hearsay at common law, are not considered hearsay under F.R.E 801 because they are not assertions, but non-assertive verbal conduct.
Issue. Whether implied assertions are hearsay?
Held. No. To be hearsay an assertion must be made, and in this case the statements made by the gamblers on the telephone were non assertive verbal conduct. They were not made to prove that the place they were calling was a bookmaking establishment, but simply made to place bets.
Verbal conduct which is assertive but offered as a basis for inferring something other than the matter asserted, is excluded from the definition of hearsay.View Full Point of Law