![]() As with conduct, the burden should be placed on the nonoffering party to show that the declarant had the intent to communicate the implied assertion. The question should be whether a reasonable person making a statement such as the declarant made would have intended to communicate the implied assertion that the proponent is offering for its truth. There is some indeterminacy in the application of any intent-based test … But any problem, we think, can be adequately handled by an objective, rather than subjective, test of intent. ![]() The authors of the Federal Rules of Evidence Manual observe that an intent-based approach to implied assertions is not free from difficulty: ħ.29 Most United States commentators are said to favour an ‘intent-based’ approach toward implied assertions. An intent-based test also allows the hearsay rule to exclude exaggerated, metaphorical or sarcastic statements where these are offered to prove the truth of the implied and intended meaning. That is, the person is unlikely to have intended to mislead on matters that the person had no intention to communicate. ħ.28 On the other hand, those who favour an intent-based approach to implied assertions consider that hearsay risks are reduced greatly where statements intentionally asserting one thing are used to prove something else that the person was not trying to say. It is said the distinction between intended and unintended communications has led to inconsistencies in its application to unintended implications of speech. Requiring intent to be shown has been said to complicate the hearsay rule unnecessarily. Attitudes to Rule 801ħ.27 The distinction made by the Federal Rules of Evidence between intended and unintended assertions has been criticised on the ground that the distinction results in the admission of unreliable communications. If the implied assertion is unintended, then it is unlikely that there was any deliberate attempt to mislead. It will not, however, suffer from dependence on the veracity of the asserter unless the asserter intended that the assertion be implied from his conduct. It may be noted in passing that parallel reasoning was found by the ALRC to support a hearsay rule that only applied to intended assertions:Įvidence of conduct, including statements from which an implied assertion of a fact can be drawn, suffers from weaknesses similar to those which affect evidence of express assertions of fact-the dependence on the perception, memory and clarity and behaviour of the ‘asserter’ and the inability to test them by cross-examination of the ‘asserter’. Such evidence is also excluded from the definition of hearsay. ![]() ħ.26 Similar considerations are said to govern non-assertive verbal conduct, and verbal conduct which is assertive, but offered as a basis for inferring something other than the matter asserted. ![]() While evidence of this character is untested with respect to the perception, memory, and narration (or their equivalents) of the actor, these dangers are minimal in the absence of an intent to assert and do not justify the loss of the evidence on hearsay grounds. Reasoning behind Rule 801ħ.25 The commentary by the Advisory Committee on Rules states, with respect to nonverbal conduct ‘offered as evidence that the person acted as he did because of his belief in the existence of the condition sought to be proved, from which belief the existence of the condition may be inferred’, that The key to the definition is that nothing is an assertion unless intended to be one. The definition of ‘statement’ is said to exclude from the operation of the hearsay rule all evidence of conduct, verbal or nonverbal, not intended as an assertion. ![]() Rule 801 of the Federal Rules of Evidence defines hearsay as:Ī statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.ħ.24 A ‘statement’ is defined as ‘(1) an oral or written assertion or (2) nonverbal conduct of a person, if it is intended by the person as an assertion’. The framing of s 59 was influenced by the approach taken in the United States Federal Rules of Evidence.
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