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the truth of the matter asserted." Rule 801(a) of the Federal
Rules of Evidence defines a "statement" 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 notes of the
Advisory Committee on the Federal Rules of Evidence discuss the
effect of the foregoing definitions as follows:
The effect of the definition of "statement" is to
exclude from the operation of the hearsay rule all
evidence of conduct, verbal or nonverbal, not intended
as an assertion. The key to the definition is that
nothing is an assertion unless intended to be one.
* * * nonverbal conduct * * * [not intended as an
assertion] may be 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. * * *
[Notes of the Advisory Committee on the Federal Rules
of Evidence, 28 U.S.C. app. at 722 (1988).]
Assertions falling within the hearsay rule may be express or
implied. See United States v. Reynolds, 715 F.2d 99, 103 (3d
Cir. 1983). The Court of Appeals for the District of Columbia
Circuit has concluded that, whether an assertion is express or
implied, the critical distinction for purposes of deciding wheth-
er conduct constitutes a statement as defined in rule 801(a) of
the Federal Rules of Evidence is whether that conduct constitutes
an intentional or unintentional message with respect to the
matter sought to be proven. See United States v. Long, 905 F.2d
1572, 1580 (D.C. Cir. 1990). Where the conduct in question
constitutes an unintentional message, that conduct is not hear-
say. See id.
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