FRE 801 defines a hearsay statement as “a statement, other than one made by a declarant while testifying in court, that is offered into evidence to prove the truth of the matter asserted in the out-of-court statement. This is substantially the same definition as that used at common law. Hearsay is not admissible in federal court unless the FRE or other laws specifically authorize its admission. (See FRE 802).
a. FRE Definition: FRE 801 defines a statement as an “an oral or written assertion” or as the “nonverbal conduct of a person, if it is intended by the person as an assertion.”
b. Silence: Under some circumstances, a person’s silence can be understood as a statement, usually one of agreement or contentment. Silence is not a statement in a criminal case in which a person has been provided with Miranda warnings. Silence is also not a statement if the person remained silent out of fear.
c. Nonverbal Acts: Under FRE 801(a)(2) a nonverbal act is not considered to be a statement unless the person who engaged in the act intended the act to “make a statement.” In this regard, the FRE differs from the common law rule. At common law, if an inference could be drawn from a person’s nonverbal act, the act was considered as a statement, regardless of the actor’s intent.