During my last semester, I externed at the U.S. Department of Justice in conjunction with a seminar in product liability. The externship was in the Torts Branch of the Civil Division, the office which handles claims filed against the United States under the Federal Tort Claims Act. I drafted memoranda of law that were used in Andrade v. Chojnacki, the consolidated lawsuit filed by the survivors of the fire at the Branch Davidian compound in Waco, Texas, and by relatives of those who died. I analyzed a new case brought by the mother of a boy injured on a military base and made a settlement recommendation to the Director of the Torts Branch. I also researched and reported on an important issue relating to lawsuits settled by the government: If the government purchases an annuity for the claimant as part of a settlement, can the government contractually prohibit the claimant from later selling all or part of the payments?

[The following is a short excerpt from an argument I wrote for the U.S. Department of Justice in the case of Andrade v. Chojnacki. My task was to answer the Plaintiffs' assertion that the FBI surveillance audiotapes of the Branch Davidians contained inadmissible hearsay. This argument was revised and incorporated into a Reply Memorandum of Law, filed in response to Plaintiffs' Consolidated Response to Defendants' Motion to Dismiss, for Substitution and for Summary Judgment.]

ARGUMENT

I. THE CONVERSATIONS ON THE SURVEILLANCE TAPES ARE NOT HEARSAY UNDER RULE 801.

The conversations, questions, and directives heard on the surveillance tapes, while made out of court, are not hearsay under Rule 801. The conversations are not statements within the meaning of the rule, nor are they offered for truth.

Plaintiffs have offered neither legal authority nor factual argument in support of their assertion that the recorded conversations are hearsay. The mere assertion that they are hearsay is insufficient to support such a finding.

A. THE CONVERSATIONS ARE NOT "STATEMENTS" UNDER RULE 801.

The conversations heard on the surveillance tapes are not "statements" within the meaning of Rule 801(a) and therefore are not hearsay.

Rule 801(a) 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." FED R. EVID. 801 (emphasis added). The intent requirement is further elucidated by the Advisory Committee’s explanation that "The key to the definition is that nothing is an assertion unless intended to be one." FED. R. EVID. 801 Advisory Committee note (a), 56 F.R.D. 183, 293 (1972). Non-assertive verbal conduct is not hearsay. United States v. Weeks, 919 F.2d 248, 251 (5th Cir. 1990), cert. denied, 499 U.S. 954 (1991).

In Weeks, a prison warden was permitted to testify that he had heard other prisoners refer to the defendant as "Gato." The court held that "the warden's testimony reported non-assertive oral conduct and was therefore not hearsay." Weeks, 919 F.2d at 251. In the instant case, the surveillance tapes reveal verbal conduct in a similar fashion: the spontaneous conversations of people not intending to "assert" anything, but to aid each other in destroying the Mt. Carmel compound.

Plaintiffs in this case must demonstrate that the verbal conduct sought to be excluded as hearsay was intended as an assertion. Weeks, 919 F.2d at 251-252. In assessing the burden of persuasion, the Weeks court relied again upon the Advisory Committee’s guidance:

When evidence of conduct is offered on the theory that it is not a statement, and hence not hearsay, a preliminary determination will be required to determine whether an assertion is intended. The rule is so worded as to place the burden upon the party claiming that the intention existed; ambiguous and doubtful cases will be resolved against him and in favor of admissibility.

FED. R. EVID. 801, Advisory Committee note (a), 56 F.R.D. 183, 29? (1972) (citing Maguire, The Hearsay System: Around and Through the Thicket, 14 VAND.L.REV. 741, 765-767 (1961)) (emphasis added).

Many of the statements heard on the surveillance tapes are in the form of questions and commands. As such, they are performative rather than assertive. 4 CHRISTOPHER B. MUELLER & LAIRD C. KIRKPATRICK, FEDERAL EVIDENCE §391 at 110 (2d ed.1994) (discussing the performative nature of directives and commands). "While 'assertion' is not defined in the rule, the term has the connotation of a positive declaration. . . . [M]ost questions and inquiries . . . are not hearsay because they do not, and were not intended to, assert anything." United States v.Lewis, 902 F.2d 1176, 1179 (5th Cir. 1990) (citations omitted) (emphasis added).

B. THE CONVERSATIONS ARE NOT OFFERED FOR TRUTH.

Assuming, arguendo, that the surveillance tapes do contain statements within the meaning of Rule 801(a), the statements nevertheless are not hearsay because they are not offered for truth. [FN1]

[FN1]The statements actually may be verbal acts, or verbal parts of acts. A verbal act is a statement which has independent legal significance. Such verbal conduct properly is excluded from the hearsay definition. United States v. Boyd, 566 F.2d 929, 936 (5th Cir. 1978). The most common examples are testamentary statements and oral contracts which in and of themselves give rise to legal consequences. Additionally, "[non-hearsay treatment is warranted for] verbal acts in the criminal setting, where the performative aspect justifies treating them as part and parcel of criminal acts, such as extortion, conspiracy, robbery, or assault." MUELLER & KIRKPATRICK, supra at 110-111.

In the instant case, the orders given by some Davidians to others constitute conspiracy to commit murder. Although the instant case is a civil action, it closely follows and arises out of the same events which led to criminal prosecutions. The overwhelming and uncontroverted physical and documentary evidence proving that the Davidians incinerated the Mt. Carmel compound is even further illuminated by their verbal conduct, which shows that they conspired to incinerate the compound.

When verbal conduct accompanies non-verbal conduct as part and parcel of the conduct, it properly is excluded from the hearsay definition as the verbal part of an act. This exclusion is much like the "verbal act" exclusion, except that the verbal conduct need not rise to independent legal significance. Rather, the conduct illuminates and accompanies some other conduct. This usually happens when the other conduct is somehow ambiguous and requires explanation. For example, handing a $100 bill to another person is by itself ambiguous, but when accompanied by the words, "thanks for keeping the Health Department off my back," the physical act becomes a bribe.

The overwhelming weight of the evidence shows that the fire which destroyed the compund was set in multiple locations by those inside the compound. The contemporaneous verbal conduct of Davidians inside the compound shed light on the intentions of those who set the fire. Rather than being offered for the truth of what was spoken, the surveillance tapes may be offered to shed light on the non-verbal conduct of the Davidians, namely, that they were preparing to set fire to the compound and not simply moving cans of fuel to safer locations.

Under Rule 801(c), statements are considered hearsay only if offered to prove the truth of the matter asserted. FED R. EVID. 801(c). "A statement offered for a purpose other than establishing the truthfulness of the assertion is not hearsay." United States v. Abroms, 947 F.2d 1241, 1249 (5th Cir. 1991), cert. denied, 505 U.S. 204 (1992).

Implicit in both the definition and justification for the [hearsay] rule . . . is the recognition that whenever an out-of-court statement is offered for some purpose other than to prove the truth of the matter asserted, the value of the statement does not rest upon the declarant’s credibility and, therefore, is not subject to attack as hearsay.

United States v. Parry, 649 F.2d 292 (5th Cir. 1981) (emphasis added).

For example, an unidentified male on the tapes is heard to say, "The fuel has to go all around to get started." Title III Trans., Tape SA 73-3, Side A, at 2. To be offered for truth within the meaning of Rule 801(c), the statement would have to be offered to show that the fuel in fact had to "go all around" in order to ignite. The hearsay problems posed by such use of the statement include the difficulty of establishing that the declarant was qualified to make judgments about the flammable properties of the fuel and of determining whether the declarant was attempting to mislead the hearer into believing that the fuel would not ignite unless further spread. If, however, the statement is used for some other purpose (e.g., to show that the declarant knew that fuel was generally flammable), the statement is not offered for truth within the meaning of Rule 801(c) and is not inadmissible hearsay. ...

[I then demonstrate that the statements could be offered to show their effect on the hearers, and that the statements, if hearsay, would nonetheless fall under the "present sense impression" and "statements against interest" exceptions to the hearsay rule. I also refute the Plaintiffs' claim that the declarants are not unavailable under Rule 804 merely because they cannot be identified and are deceased.]