While executing a lawful search warrant at defendant Ruby Humphrey's premises for evidence of bookmaking activity, government agents answered the telephone several times. Unknown callers gave directions for placing bets on sporting events. The government offered those utterances to show the callers believed bets could be placed at the premises, and that belief tended to prove the premises were being used for betting operations. The defendants objected that the callers' statements were hearsay.
Issue
Whether out-of-court telephone betting instructions, offered not for the truth of any express assertion but as evidence implying the callers' belief that the premises were used for betting, are hearsay under the Federal Rules of Evidence.
Rule
Under Federal Rule of Evidence 801, hearsay includes only a "statement" offered to prove the truth of the matter asserted, and a statement is limited to an oral or written assertion or nonverbal conduct intended as an assertion. Therefore, verbal or nonverbal conduct not intended as an assertion, including implied assertions inferred from nonassertive verbal conduct, is excluded from the operation of the hearsay rule.
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One of 10 multiple-choice questions for this case. Pick an answer to see why.
Chicago police execute a lawful search warrant at an apartment suspected of operating an unlicensed ticket-resale business. While inside, an officer answers the apartment phone, and an unknown caller says, "I need two lower-level seats for Friday—hold them under Nate." The prosecution offers the caller's words to show people believed tickets were sold from that apartment.
Is the caller's statement hearsay under Federal Rule of Evidence 801?
Explanation. Rule 801 applies only to a "statement," meaning an oral or written assertion, or nonverbal conduct intended as an assertion, offered for the truth of the matter asserted. A request to hold tickets is nonassertive verbal conduct if offered only to imply the caller believed tickets could be obtained there. Because the caller did not intend to assert that the apartment was a ticket office, the utterance is not hearsay.