The Borderland: An Intent to Assert or Perform

Question 1

Under the FRE when is non-verbal conduct an intent to Assert or Perform

Answer 1

Assertion: declarant must belief in the condition sought to be proven and intent to communicate it

Assertions are hearsay

Performance is not hearsay because it lacks intent under the FRE

Question 2

For non-verbal conduct to be an Assertion

Answer 2

need a belief plus an action

Question 3

Is calling to place a bet with a Bookie hearsay?

Answer 3

No, the performative aspect outweighs the assertive aspect.

Intent only place bet, not persuade

Question 4

Is lying a performance or an assertion?

Answer 4

It depends

Voluntary Lies: Voluntary lies are most likely assertions because you are actively persuading someone and asserting that something which is false, is true
–> These Acts are hearsay, but some are nonhearsay because they are verbal acts

Involuntary Lies: Might not be an assertion since there is no intent to communicate (more like placing a bet)….but you might also use Circumstantial state of mind or effect on listen.

Question 5

What about statements made in public? Is there an intent to assert or perform?

Answer 5

It depdends…See prob 3-k

The key question is what does the statement do…not what does it prove?

In King Air, statement asserts that he knew the plane was there, but it probably DOES NOT assert that he is guilty or innocent.

Question 6

Betts v. Betts………..does testimony from a foster mother that “the daughter always says ‘he killed my brother and will kill me too.’”

Remember: this is a common law case!

Answer 6

Statements of child not admitted to prove the truth of the assertions she made, but to indirectly and inferentially show the mental state of the child at the time of the custody proceeding
–> doesn’t depend on compency of child, that is a weight to jury

Note: would be best to use FRE 803 State of Mind hearsay exception, but is reliability required and the testimoney of a 6 year old child is likely not to come in

Question 7

Important Foreshadowing: What is the difference between nonhearsay circumstantial state of mind and the hearsay exception in 803(c) for state of mind?

Answer 7

Nonhearsay Circumstantial State of Mind

• -> not hearsay because not used to prove truth of matter
• -> Therefore, you CANNOT use this to prove the matter asserted

State of Mind Exception FRE 803:
–> State of mind can be used to prove the truth of the matter, however the declarant must be reliable….girl from Betts might not be competent since she is 6