United States v. Zenni
492 F. Supp. 464 (1980)
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Rule of Law:
Under Federal Rule of Evidence 801, an out-of-court utterance is not hearsay if it is non-assertive verbal conduct offered as a basis for inferring the declarant's belief in a particular fact, because the utterance is not considered a "statement" if the declarant did not intend it as an assertion.
Facts:
- Government agents suspected Ruby Humphrey was involved in illegal bookmaking activities.
- The agents obtained a lawful search warrant authorizing a search of Humphrey's premises for evidence of this activity.
- While executing the search warrant at the premises, government agents answered the telephone several times.
- The unknown individuals who called provided instructions for placing bets on various sporting events.
Procedural Posture:
- The United States government brought a criminal prosecution against Ruby Humphrey and other defendants in federal district court for illegal bookmaking activities.
- Prior to trial, the government indicated its intent to introduce testimony from its agents about the contents of telephone calls they answered while searching Humphrey's premises.
- The defendants filed a pre-trial motion to exclude the agents' testimony about the phone calls, arguing the callers' utterances were inadmissible hearsay.
- The district court considered the defendants' motion to determine the admissibility of the evidence.
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Issue:
Are implied assertions, conveyed through non-assertive verbal conduct like telephone calls placing bets, inadmissible hearsay under Federal Rule of Evidence 801 when offered to prove the callers' belief that the premises were used for bookmaking?
Opinions:
Majority - Bertelsman, District Judge
No. Implied assertions conveyed through non-assertive verbal conduct are not hearsay under the Federal Rules of Evidence and are therefore admissible. The Federal Rules of Evidence fundamentally changed the common law hearsay rule established in cases like Wright v. Tatham, which had treated implied assertions as hearsay. Under Federal Rule of Evidence 801(a), a "statement" is defined as an oral or written "assertion" or nonverbal conduct intended by the declarant as an assertion. The key to the definition is the declarant's intent; if there is no intent to assert a fact, the utterance or conduct is not a "statement" and therefore cannot be hearsay under Rule 801(c). In this case, the callers' utterances were directions for placing bets; they were non-assertive verbal conduct. The callers did not intend to assert the fact for which the evidence is offered—that the premises were used for betting. The utterances are offered to prove the callers' implied belief, which is relevant circumstantial evidence. Because the callers did not intend their words to be an assertion about the nature of the premises, their utterances are not hearsay and are admissible.
Analysis:
This decision clarifies the significant departure from the common law doctrine of implied assertions made by the Federal Rules of Evidence. It establishes that the admissibility of such evidence hinges on the declarant's intent to assert something, rather than on the inference the fact-finder is asked to draw. This narrows the scope of the hearsay rule, allowing for the admission of relevant circumstantial evidence based on a person's conduct or non-assertive words. The case solidifies the modern view that the primary hearsay dangers, like insincerity, are minimal when a person acts on a belief without the intent to communicate it, making such evidence reliable enough for admission.
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