Definition of "Statement"
This concept is the gateway to the entire hearsay rule, and the gate only opens for a “statement.” The rule against hearsay reaches statements, not actions in general, so the
8. Definition of “Statement.” The rule against hearsay applies only to statements, not actions
Definition of “Statement.” The rule against hearsay applies only to statements, not actions.
- A statement is “a person’s oral assertion, written assertion, or nonverbal conduct, if the person intended it as an assertion.” Fed. R. Evid. 801(a).
- Hearsay includes both oral and written assertions.
- Nonverbal conduct qualifies as a statement only if the actor intended it as an assertion.
- Hearsay statements may occur in audiotapes, photographs, social media, movies, and any other type of media.
- Media that simply depict nonassertive conduct, however, are not statements. A security video that shows a person entering a store, for example, is not a statement.
- The Nevada FLE does not test when machine readouts constitute “statements.”
The hearsay rule reaches only a statement, so the threshold question is always whether the thing offered is a statement at all. The whole inquiry turns on one thing: was there an intended assertion?
This concept is the gateway to the entire hearsay rule, and the gate only opens for a "statement." The rule against hearsay reaches statements, not actions in general, so the threshold question is always whether the thing offered is a statement at all.
- 1A person's oral assertion.
- 2A person's written assertion.
- 3A person's nonverbal conduct that the person intended as an assertion.
Oral and written assertions are easy. The trickier branch is nonverbal conduct, which counts as a statement only when the actor meant the conduct to communicate or assert something, such as nodding yes, pointing to identify a suspect when asked, or signing an answer in sign language. Conduct that is not intended to assert anything, like flinching, fleeing, ducking, or running for cover, is not a statement, no matter how revealing it is, because the actor was acting for its own sake and not to communicate a fact.
The medium never controls. A statement can live in an audiotape, a photograph, a social media post, or a movie, and a recording of nonassertive conduct is still not a statement, which is why a security video showing a person walk into a store is not a statement.
No intended assertion, no statement: oral, written, or a deliberate nod count; a flinch, a sprint, or a security video do not.
A police officer is investigating a robbery and brings a witness in to view a lineup. The officer asks the witness, "Is the person who robbed you in this group?" The witness says nothing but deliberately points at the second man in the line. Later, in an unrelated case, a different bystander sees a loud bang and instinctively ducks behind a parked car. A party wants to treat each piece of conduct as a statement subject to the rule against hearsay.
The deliberate point is a statement; the instinctive duck is not.
An option treats any revealing or information-conveying nonverbal conduct as a statement, or says conduct counts because it shows a belief or perception.
Nonverbal conduct is a statement only if the actor intended it as an assertion; instinctive or self-protective conduct that merely reveals a belief is not a statement.An option uses an absolute about the medium or form: video or gestures can never be a statement, or video of movement always is a statement.
The test is intended assertion, not the medium. Statements can appear in any medium, and gestures intended as assertions qualify, so categorical medium rules are wrong.An option resolves the statement question by pointing to whether the item is offered for its truth or whether a hearsay exception applies.
Whether something is a statement is decided by the definition of statement alone; truth-of-the-matter and exceptions are separate downstream questions.An option fixes on a true but irrelevant fact about the setting, such as that the conduct occurred near an officer or during an emergency.
The setting is legally irrelevant. A statement turns solely on whether the actor intended the conduct as an assertion.a party objects to conduct, a recording, or a gesture under the rule against hearsay, because that rule only reaches statements.
ask what form the item takes: a person's oral assertion and a person's written assertion are always statements.
if the item is nonverbal conduct, ask the single controlling question: did the actor intend the conduct as an assertion?
If yes, such as a deliberate nod or a point made to answer a question, it is a statement; if no, such as flinching, fleeing, or a security camera capturing someone walking in, it is not a statement and the rule against hearsay does not reach it.
Do not let the medium decide and do not slide into asking whether it is offered for its truth; the only question here is whether it is a statement.
An officer investigating a burglary asks a witness, “Is the person who broke into your home in this lineup?” The witness does not speak but deliberately raises an arm and points at the third man in the row, plainly meaning to identify him as the burglar. At trial, the prosecution wants to introduce evidence of the witness’s pointing, and the defense objects that the conduct is being offered as a statement subject to the rule against hearsay.
Is the witness’s pointing a statement for purposes of the rule against hearsay?
During a robbery trial, a party offers a store's security video that simply recorded a customer walking through the front door several minutes before the robbery. The customer was unaware of the camera and did nothing to communicate anything; the footage just captures him entering the store. The opposing side objects that the video is a statement subject to the rule against hearsay because it shows a person and conveys information about who was present.
Is the security video of the customer entering the store a statement for purposes of the rule against hearsay?
A driver is questioned by an officer at the scene of a crash. The officer asks whether the other car ran the red light, and the driver, without saying a word, nods her head up and down in a deliberate yes meant to answer the question. In a later proceeding, a party offers evidence of the nod, and the other side objects that it is a statement subject to the rule against hearsay.
Is the driver's nod a statement for purposes of the rule against hearsay?
At trial, a party offers testimony that, moments after a gunshot rang out in a crowded plaza, a bystander instinctively dropped to the ground and crawled behind a planter to take cover. The bystander was not trying to signal or communicate anything to anyone; he simply reacted to protect himself. The opposing party objects that the bystander's ducking is a statement subject to the rule against hearsay because it reveals that the bystander believed there was danger.
Is the bystander's ducking for cover a statement for purposes of the rule against hearsay?
A clerk witnesses a fire start in a stockroom. As patrons begin to leave, the clerk, without speaking, sweeps her arm repeatedly toward the exit and waves people out, deliberately gesturing to communicate that everyone should go that way to leave the building. Later, a party offers evidence of the clerk's arm-waving, and the opposing party objects that the gesture is a statement subject to the rule against hearsay.
Is the clerk's arm-waving toward the exit a statement for purposes of the rule against hearsay?