D is charged with murder.

The case goes to trial.

The common law rules of evidence apply.

The issue is D's sanity.

The prosecution offers a letter by written by D's broker and sent to D. This letter discusses various financial matters. For example:

Dear D, you have done well in the stock market so far. You should be careful now, however. The market will turn down and tech stocks will take a particularly severe beating.

Trial judge:

What's the relevance of this, counsel? What are you trying to show?

Prosecutor:

The broker knew D very well, your Honor. He treated D as compos mentis. This is evidence that D was compos mentis, sane.

D's counsel:

Hearsay, your Honor.

Trial court:

Objection sustained.

Trial court's explanation:

Although the broker, in his letter, does not expressly assert that DD is sane, the letter displays the broker's belief that DD is compos mentis, and it is this belief alone that makes the broker's letter relevant to the issue of the sanity of DD. Thus, an out-of-court belief is being offered to show its truth. This is not permissible at common law. It is important that DD have the opportunity to cross-examine the broker about the belief in the presence of the jury. For example, it is possible that the broker had a poor memory and was confusing DD with someone else. Thus, as with conduct, if an out-of-court statement is offered to show someone's belief and the truth of that belief the out-of-court statement is hearsay even if the belief the proponent wants to show is not express, but implicit, just an assumption. The common law will call the tacit assumptions of such declarants "implied statements" or "implied assertions." It makes no difference that the declarant did not actually intend to communicate the belief or assumption that his or her statements show.

Such was the law at common law.

Here is a picture of the type of evidence that was excluded in Wright v. Thatam:

|--------------------> "Your garden, Marsden, needs more attention" [asserted]
|
|

|
|
|-----------------------> "Marsden is mentally competent [not asserted, but believed]

This is the way things stood at common law: beliefs revealed but not asserted by statements were called "implied statements" and they were treated as hearsay when the implied statements - the unasserted but revealed beliefs - were offered to show that such implied statements - such unasserted beliefs - are true.

Question: What's the story under the Federal Rules of Evidence? Would the letters in Wright v. Thatam still be treated as hearsay?

Answer: The drafters of the FRE meant to repudiate both Wright v. Thatam and the common law treatment of the sort of statements that were at issue in Wright v. Thatam. What was actually at issue in Wright v. Thatam was not the hearsay status of nonassertive nonverbal conduct such as the sea captain's conduct. The sea captain problem was merely a hypothetical that Baron Parke conjured up to make a point. What was actually at issue in Wright v. Thatam was the admissibility of thoroughly assertive statements, the hearsay or nonhearsay status of assertive "verbal conduct": the issue in Wright v. Thatam was the admissibility of letters, letters that were full of assertions. The question was whether or not the letters were hearsay if they were offered, not to prove the matters asserted by the writers of the letters, but to prove a matter revealed but not asserted by the writers -- the writers' seeming belief that the testator Marsden was mentally competent.

The Advisory Committee had this to say about the hearsay status of such evidence, see end of 2d full paragraph of the Advisory Committee's Note for FRE 801(a):

Similar considerations govern - [i.e., considerations similar to those militating against hearsay treatment of nonassertive nonverbal conduct] - similar considerations govern ... assertive conduct which is assertive but offered as a basis for inferring something other than the matter asserted.

The Advisory Committee added that such assertive statements - i.e., assertive statements offered to show something other than the matter or matters asserted - are are "excluded from the definition of hearsay by the language of subdivision (c)" of Rule 801(c), which is the FRE's general definition of hearsay.

Can someone explain this point for me? What's the Committee's theory?

Consider this situation:

DD is charged with murder of VV.

State's offer of evidence:

If allowed, WW will testify that immediately after the shot killing VV rang out, BB yelled,

Oh my gosh. Valiant Victim has been shot. Grab DD!

BB's statement is offered to show that DD, not someone else, killed VV.

Is BB's proposed testimony evidence of hearsay?