U.S. v. Zenni, 492 F. Supp. 4664 (1980)

Relevant Facts: While executing a valid search warrant for bookmaking activity, the agents answered the telephone several times.  The unknown callers provided instructions on the bets they wanted to place.  The govt intends to offer this evidence to show that the callers believed the premises were being used as a betting operation.

Legal Issue(s): Whether implied assertions are hearsay?

Court’s Holding: FRE 801(a)(2) removes implied assertions from the definition of statement and consequently from the operation of the hearsay rule.

Procedure: Df objected to the inclusion of the evidence; Obj overruled.

Law or Rule(s):   Statements offered as evidence to prove the truth of the matter asserted are hearsay and inadmissible.

Court Rationale: The drafters of the FRE agreed that implied assertions should be treated as hearsay.  They did this by providing that no oral or written expression was to be considered hearsay, UNLESS it was an “assertion” concerning the matter sought to be proved and that no nonverbal conduct should be considered hearsay, UNLESS it was intended to be an “assertion” concerning said matter.  Assertion itself is not defined in the FRE.  The key to the definition of “STATEMENT” is that nothing is an assertion unless intended to be one.  Verbal assertions readily fall into the category of “statement.”  Some nonverbal conduct is clearly the equivalent of words, assertive in nature, and therefore to be regarded as a statement. (Pointing a finger in a line up). Other forms of nonverbal conduct may be offered as evidence that a person acted as he did b/c of his belief in the existence of the condition sought to be proved, from which belief the existence of the condition may be inferred.  Utterances of the bettors calling in their bets were nonassertive verbal conduct, offered as relevant for an implied assertion to be inferred from them, namely that bets could be placed at the premises being telephoned.

Plaintiff’s Argument: A nonverbal assertion regarding the existence of a condition sought to be proved, remains the same as evidence offered as evidence of the truth of the matter asserted.

Defendant’s Argument: Absent an intention to communicate, the hearsay danger of insincerity (Mendacity) is eliminated.

My problem with the case:

FRE 801 considers communications to be  “statements” only if the declarant intended the declarations to convey a particular thought.  Here, the declarants intended to convey a particular thought, of which the govt is using as proof toward the truth of the matter asserted; i.e. the callers wanted to place a bet, intent as an element of the crime.

*The court only uses examples of conduct, not nonverbal implied assertions.