[lit-ideas] Re: Grice v Grice

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  • Date: Tue, 8 Dec 2015 08:00:33 -0500

The text reads:

"A matter stated is one to which this chapter applies if and only if the
purpose, or one of the purposes, of the person making the statement appears
to the court to have been to cause another person to believe the matter, to
cause another person to act or a machine to operate on the basis that the
matter is as stated."

Is this Griceian -- or what?

Is this circular -- or what?

Let's be charitable.

Let's suppose we are focusing on Frege's (and Grice's revision of the)
concept of 'assertion' and an utterer's STATING that p.

The first to provide a conceptual analysis of that was S. R. Schiffer in
his DPhil Oxon under Strawson. But my favourite treatment is in D. Holdcroft
(of Leeds, not Oxford) in his "Words and deeds" --: a man of words and not
of deeds is like a garden full of weeds" -- whose subtitle goes, "Problems
in the theory of speech acts".

Let's go back to the text:

"A matter stated" e.g. that

i. snow is white.

"is one to which this chapter applies if and only if the purpose,"

or M-intention

"or one of the purposes, of the person"

or utterer

"making the statement"

i. snow is white.

"appears to the court to have been to cause another person to believe the
matter,"

Grice had SO MANY PROBLEMS with that! He notably rejected a PURELY or
'merely' as McEvoy might prefer -- vide Hart/Honore, Causation in the law --
causal account of things. His enemy here was C. L. Stevenson who being a mere
behaviourist was ONLY into 'causation'. For Grice, this conceptual
analysis is insufficient, because we need the concept of 'reason to do', not
'cause for doing'.

The intention has to work as a reason for the addressee to believe the
matter, i.e. that snow is white.

"to cause another person to act or a machine to operate on the basis that
the matter is as stated."

The distinction is a good one, but rather informally stated. What we have
here is a bit of the distinction that Grice draws between

the protreptic

and

the merely exhibitive.

Belief is an exhibitive attitude. You believe that snow is white, and you
want to make your addressee believe that snow is white.

We need a protreptic attitude, too, a desire, a conation. This the text
expresses as having the addressee "ACT", but for the conceptual-analytic
philosopher, the concept of 'willing' is more basic, and there cannot be
'acting' unless there is 'willing'.

So PHILOSOPHICALESE can refine a LEGALESE conceptual analysis.

Popper could disagree!

Thanks to McEvoy for his one-liner, talking of Popper, and Kuhn. For
Popper, to paraphrase, Kuhn glorifies the uncritical. And science is critical.
Rocket science is critical.

Ritchie was talking about birds which reminds me of Popper's favourite
bird: the penguin. For Darwin, it was the finch (vide Mr. Popper's Penguins,
and Darwin's Finches).

But back to Grice v Grice: let us analyse the hearsay rule in terms of
Grice's concept of meaning (itself analysed in terms of intending) as 'hearsay'
applies across the pond, as some Brits and some Americans call it (the
"Atlantic" Ocean), since Grice was both, and English law (as we've seen in
previous posts) has features it shares with European law (which is Roman law)
and English law gave birth (metaphorically) to American law.

But let us go back to meaning and intending, with a view to approaching it
via conceptual analysis or problem-solving, since, after all, "hearsay
rule" alleged problems are alleged, again, to be mere *language* problems.

The "hearsay rule" merely proscribes the repetition, in court, of any
"out-of-court" statement, "p", where "p" is offered to prove the truth of the
matter asserted or stated in "p" - vide Fed. R. Evid 801.

Of course, to determine whether a statement, "p", is being offered to prove
the truth of the matter "p" asserts, a court needs to determine what the
statement "p" means in the first place.

In this respect, applying the "hearsay rule" is similar to interpreting a
statute or a contract.

In all these cases, the court interprets a language, alas, at one remove
from the context of its utterance (hence "hear-say").

Scholars have long recognised that problems about statutory and contract
interpretation are questions about Griceian meaning.

What's more, legal philosophers have effectively used conceptual analysis
of a Griceian type to elucidate these and other interpretive questions.

Surprisingly, however, relatively little effort has been made to apply the
same Griceian considerations in the conceptual analysis of the "hearsay
rule"

Roughly, the concept of "hearsay" is analysed as a "statement" -- an
utterance where there is "matter stated" or "matter asserted", other than a
statement explicitly made by the declarant (hereinafter utterer U) while
testifying at the trial or hearing -- when this utterance is offered in
evidence
to prove the truth of the "matter asserted" -- or the "matter stated" by the
assertion or statement.

References of the Griceian type for statutes and contracts may include
essays such as that by M. Sinclair ("Law and language: the role of pragmatics
in statutory interpretation", 46 U. PrrT. L. REV. 373), L. Solan, "Learning
our limits: the decline of textualism in statutory cases and the rise of
Griceianism, WIS.L. REV. 235, P. Tiersma ("The language of perjury: literal
truth, ambiguity, and the false statement requirement", 63 S. CAL. L. REv.
373 and "Comment: the Language of offer and acceptance: speech acts and the
question of intent and Griceian intention, 74 CAL. L. REv. 189).

We can quote at least one case of the application of the philosophy of
language in terms of implicature in the analysis of the hearsay rule.

C. Callen uses Grice's "cooperative principle" (Grice's joke on Kant),
however, as a mere auxiliary aid in understanding the very purpose motivating
-- and giving a RATIONALE -- and explanatory adequacy -- to the hearsay rule
and also in demarcating the analysis of the concept of "hearsay" from
"non-hearsay" (Callen, "Hearsay and informal reasoning", 47 VAND. L. REV. 43).

Callen argues that an "out-of-court" statement "p" should be considered as
falling under the concept of "hearsay" if

(a) U offers "p" to establish a piece of reasoning
(e.g. "q") that U would have m-intended his addressee A
to draw from "p",

and

(b) an assessment of the degree of
accuracy of U's implicit claim of co-operation
or helpfulness (as Grice says in his 1964 lectures
at Oxford on implicature) is essential to a
thoughtful, unprejudiced, fact finder's determination
of this piece of reasoning's reliability.

Legal philosophers thus have drawn on insights from the discipline of
philosophy of language Grice specifically refers to as "pragmatics" ("do not
multiply senses beyond necessity") to offer a way to understand (and surely
apply in the real-world) the definition of the concept of "hearsay", as
expressed in the federal rules of evidence -- where "matter asserted" is used.

Pragmatics is simply to understood: it is that field of philosophy
concerned with how we use language in real-world contexts to accomplish various

objectives, goals, purposes, or intentions.

By identifying the conventions, rules, or, as Grice prefers, 'procedures'
that "govern" language usage (as a rational and reasonable activity),
pragmatics provides a way to analyse what an utterer U means when U says --
e.g.
states -- something, "p", and how meaning is conveyed through his utterance
(Grice distinguishes, with Austin, between, 'by uttering x, U means that
p' and 'In uttering x, U means that p').

Pragmatics of the Griceian type has then obvious utility for the analysis
of the concept of "hearsay"

Grice looms all over the field of pragmatics -- and it actually he
supersedes our beloved H. L. A. Hart here (Hart admired Grice too)

Grice's theory of implicature simply revolutionised philosophers's
understanding of how they had previously misunderstood Plato's claim that
knowledge does not entail belief. It does!

It is, in a nutshell, Grice's pragmatic conceptual analysis of "mean" (on
which his theory of what an U "implicates" rests) that has the greatest
import for an analysis of the concept of "hearsay" in the hearsay rule.

The English verb, "to mean", is an extraordinarily difficult concept to
analyse, even to Grice -- it took him some 30 years to reach some more or less
sufficient and necessary conditions.

And some still think that no single theory of meaning has been accepted for
all purposes.

The definition of "hearsay" in the federal rule of evidence (Rule 801 --
not the first one, and thus hardly the main one!) requires an inquiry into
what Grice call "utterer's meaning."

What we offer is a formula for the provision of a conceptual analysis of
"hearsay" based on Grice's theory of utterer's meaning.

We can apply this approach both to basic situations and to a number of
alleged "hearsay" problems

Ultimately, Grice's analysis facilitates the resolution of even the most
intractable "hearsay" issues while effecting the RATIONALE underlying the
hearsay rule.

It has explanatory adequacy.

Our conceptual objectives here are twofold.

First, by showing how "hearsay" cases fit into an established philosophical
framework, to wit, the Griceian one, we hope to respond to some of the
criticism around the prevailing understanding of the hearsay rule.

Vide Levinson, S. Pragmatics.

Just as, traditionally, syntactics is taken to be the study of the
combinatorial properties of words and their parts, and semantics to be the
study
of meaning, so pragmatics is, for Grice, the analysis of language usage, i.e.
implicature and disimplicature.

We can describe Griceian pragmatics as the conceptual analysis of the
utterer's ability to compute out of sequences of utterances, taken together
with
background assumptions about language usage, highly detailed inferences
about the nature of the assumptions utterer and addressee are making, and the
goal or intention for which the utterance is offered as a means.

The notion of conversational implicature is one of the single most
important ideas in pragmatics and philosophy in general. The other is
DISIMPLICATURE.

Contrary to some very weak criticism, a conceptual analysis of "hearsay"
(in Rule 801, for example) is consistently and rationally applied even to
difficult Griceian cases.

Since there is always room for disagreement, we have entitled this: Grice
v. Grice.

But we have another, more conceptual, objective.

We are proposing an analysis for the concept of "hearsay" that we hope can
assist a Griceian judge (if we find him) in resolving real-world "hearsay"
problems -- "outside the Griceian box," as it were.

Specifically, we advsie that judge to be Griceian, and focus on the
communicative INTENTION motivating the STATEMENT.

The judge should first recognise that the intention behind the utterance
requires a focus on pre-existing understandings (what Grice calls the
uncontroversial common ground) between the declarant U and her addressee A.

A pre-requisite to understanding the "hearsay rule" may well to understand
some of thehistorical debate about the scope of the rule.

This debate around the hearsay rule has a specific origin: the celebrated
nineteenth-century case of Wright v Tatham.

A Dickensian epic that meandered through English courts for the better part
of a decade, Wright v Tatham is a suit by an heir at law to recover land
from a devisee under a will.

Wright v Tatham turns on the validity of the will, specifically on the
testator's sanity, no less (He was called "mad hatter" since his profession was
indeed that of a hatter).

As evidence of the testator's sanity, U offers a few letters written to the
allegedly insane testator in the years prior to his death.

None of the letters expressly -- or via explicature -- comments on the
testator's sanity ("Hey, hatter, you're mad").

But the content of some of the assertions suggested that the letter
"utterers" believed the testator was SANE.

This inference -- the letter "utterers" believe the testator was sane -- is
then offered as evidence that the testator was, in fact, sane.

The case went all the way to the House of Lords.

The letters were, alas, ultimately declared "inadmissible hearsay" because
their relevance depended on the credibility of the non-testifying letter
writers, anathema for English law.

We were saying part of our intention is to address some spurious criticism
against the analysis of the concept of hearsay' in Rule 801. Some of the
essays critical of the hearsay definition in Rule 801, as interpreted by the
Advisory Committee should be known by heart, since many of them are pretty
bad.

Vid: Eng. Rep. 488 (KB. 1837).

In any case, the Wright v Tatham case laboured through trials and appeals
for 8 long years before its final resolution in the House of Lords.

The Wright v Tatham case had began in 1830 at the Lancaster Spring assizes
but was resolved in 1838 in the House of Lords.

Two letters, one from the testator's cousin in Virginia discussing family
matters and one letter from a local vicar asking the testator to arrange for
his attorney to resolve a dispute between the decedent and the township
are among those forming the heart of the Wright v Tatham case.

The letters ARE "hearsay" because the fact finder is being asked to trust
the memory, perception, narrative capacity, and sincerity of the letter
writers, without the benefit of cross-examination.

Wright v Tatham may be known best for a hypothetical suggested in dicta
by Parke, the author of the most influential opinion.

**************************** PARKE'S SHIP ******************************

Parke posits a hypothetical in which the sea-worthiness of a ship is at
issue.

As evidence of sea-worthiness of the ship, a party calls a witness to
testify that the ship's captain inspected it at the dock and then boarded with
his family.

Parke concludes that the witness's testimony in that situation would fall
under the concept of "hearsay".

Why?

Well, first, because the captain is in effect testifying to the
sea-worthiness of the vessel.

Second, because the fact-finder is being asked to rely on the captain's
perception, memory, and sincerity without the benefit of cross-examination.

For both the letters actually offered in Wright and the ship-captain
hypothetical given in dicta, the fact finder is asked to make what has
described
as a "two-step inference."

1. From U's conduct -- writing a letter proposing a business transaction
and boarding a ship -- the fact finder is asked to infer U's BELIEF (or
Lockean idea) about some REAL-WORLD condition -- in the sanity of the
letters's
addressee and the seaworthiness of the ship.

Based on that belief, the fact finder is then asked to infer that the
real-world condition existed.

Grice, following the Kiparskys, calls this 'factivity'.

i. The addressee of the letter is sane.
ii. The ship is sea-worthy.

The evidence -- now packaged under the heading"implied assertions"-- is
however problematic to some legal philosophers because its validity turns on
the un-cross-examined belief of U.

Parke's treatment has informed the debate about the definition of the
concept of hearsay for over 150 years.

Parke posited other hypotheticals as well; to wit:

(1) a proof that under-writers have paid the amount of the policy
------------ as evidence of the loss of a ship.

(2) proof of payment of a wager.
--------------- as evidence of the happening of the event that was the
subject of the bet.

(3) precautions taken by a family
----------------- to show that the person involved was insane

(4) the election of a person to office
---------------- as evidence of sanity.

(5) proof that a physician allowed a will to be executed
--------------- as evidence of the testator's competency.

V. C. MUELLER and L. C. KIRKPATRICK, "EVIDENCE". See also the symposium on
hearsay and implied assertions: how Would (or Should) the Supreme court
decide the Kearley case?

Wright represents what we may dub the "common law" analysis of the concept
of "hearsay" at least until the beginning of the twentieth century.

Courts and commentators of that era typically eschewed formal conceptual
analysis in favour of a loose, if still conceptual, approach to "hearsay",
focusing on the importance of the cross-examination of any witness.

The Hearsay Symposium, incidentally, addresses the problem of implied
assertions and featuring Allen, Berger, Callen, Friedman, Kirkpatrick, Kuhns,
Mosteller, Mueller, Park, Scallen, Seidelman, Swift, among others.

The symposium organizer C. Callen goes on to describe in some detail four
models for dealing with the "implied assertion" problem:

(1) the explicitness-based model.

(2) the dangers-based model -- cfr. Popper on problem-solving.

(3) Grice's communicative intention-based model.

(4) the system-based model.

Vide C. Callen, "Foreword to the Forum: Wallace Stevens, blackbirds and the
hearsay Rule".

It is not clear how seriously courts took the hearsay rule against hearsay
PRIOR to Wright v Tatham.

In his thorough study of the history of evidence law, "The rise of modern
evidnce law", T. Gallanis concludes that, as of the mid-1700s, the hearsay
bar was seldom enforced.

The concept of "hearsay" occupies much of the modern law of evidence.

Until 1755, it was accepted almost without comment.

Even in the years immediately preceding Wright v Tatham, some decisions
applying "the hearsay rule" engage, alas, in little or no analysis of the
concept of "hearsay".

Foote v. Hayne admitts a gone item of apparent hearsay and excludes
another, without explanation.

On the other side of the pond, American courts which did apply the concept
of "hearsay" generally avoided offering any analysis of the concept at all,
working instead from the assumption that the hearsay character of the
evidence was inescapable.

Thus Insurance Co. v. Mosley discusses admissibility of statements of
physical condition and state of mind without offering an analysis of the
concept
of "hearsay".

Nicholls v. Webb analyses several hearsay issues, including declarations
against interest and business records, but states only that the general
objection to evidence, of the character of that now before the court, is, that
it is in the nature of "hearsay", and that the party is deprived of the
benefit of cross-examination.

Those courts that offered more were extremely conclusory.

In Melius v. Houston a witness is not be permitted to testify to facts of
which he has no knowledge, and of which he is informed by the statements of
others not parties to the suit.

In Salmon v. Orser, the declaration of a third party, out of court, not
examined as a witness, is not evidence of the fact stated in such declaration.
It is "mere" hearsay (to use McEvoy's favourite adjective).

The first great evidence treatise writer, S. Greenleaf in "A treatise on
the law of evidence", goes to analyse the concept of "hearsay" as evidence
which does not derive its value from the credit to be given to the witness
himself but rests in part on the veracity and competency of some OTHER person.

The United States Supreme Court adopts Greenleafs terminology almost
verbatim in Hopt v. Utah, whose credibility was at issue.

This approach, however, allows for essentially pretty "ad hoc" judgements
based on a range of credibility concerns, freeing courts either to take the
hearsay rule to its Wright v Tatham-inspired limits, or to apply it more
narrowly.

In the twentieth century, the credibility-based approach embodied by Wright
v Tatham began to fall out of favour. At the same time, Grice was growing.

The "reformist" trend, with its emphasis on black-letter rules, emerges in
the law of evidence as in other common-law disciplines.

Relying on Wigmore, courts find a concise analysis of the concept of
"hearsay".

The concept of hearsay is analysed as extra-judicial utterances offered to
prove the truth of the "matter asserted" or "matter stated".

It is found indispensable, as a test of truth, that every living witness
should, if possible, be subjected to the ordeal of a cross-examination, that
it may appear, what were his powers of perception, his opportunities for
observation, his attentiveness in observing, the strength of his
recollection, and his disposition to speak the truth.

The original motivation or RATIONALE for "the hearsay rule" is that the
statements of the out-of-court declarant U are made in the absence of a
Kantian oath.

Gallanis explains hearsay rationales in the eighteenth and nineteenth
centuries.

By the beginning of the nineteenth century, that rationale was subordinated
to one focusing on the absence of cross-examination.

Although frequently cited by nineteenth-century treatise writers, Wright v
Tatham escaped significant critical analysis for decades.

C. McCormick (in "The borderland of hearsay") notes the absence of judicial
analysis of Wright v Tatham.

Most authorities simply ignore Wright v Tatham's suggestion that
NON-assertive conduct (or something which is NOT a statement) can be hearsay
and
elided the alleged "implied assertion problem" (the addressee of the letters is
not insane) presented by the letters.

Greenleaf notes that the hearsay rule rejects all hearsay reports of
transactions, whether verbal or written, given by persons not produced as
witnesses.

M. PHILLIPPS and T. ARNOLD, "A TREATISE ON THE LAW OF EVIDENCE" approvingly
cite Wright v Tatham's holding with respect to letters, but implying that
courts in England did not extend the holding to NON-assertive conduct.

In practice, an enormous amount of allegedly "implied-assertion" evidence
almost certainly came in without judges or lawyers recognising the potential
hearsay issue.

See R. LEMPERT and S. SALTZBURG, "A MODERN APPROACH TO EVIDENCE."

American courts have generally dealt with the problem of whether
non-assertive conduct falls under the concept of "hearsay" by failing to
recognize
that such conduct might present a hearsay problem.

See: M. Ariens, "Progress is our only product: legal reform and the
codification of evidence.

Fitzgerald v. State quotes J. WIGMORE, "A TREATISE ON THE SYSTEM OF
EVIDENCE IN TRIALS AT COMMON LAW.

Ironically, Wigmore refuses to offer a formulaic definition (never mind
analysis) of the concept of 'hearsay'.

Wigmore merely states that "the hearsay rule" signifies a rule rejecting
assertions, offered testimonially, which have not been in some way subjected
to the test of cross-examination.

Vide: J. WIGMORE, "A TREATISE ON THE ANGLO-AMERICAN SYSTEM OF EVIDENCE IN
TRIALS AT COMMON LAW. .

Over the next half century, the "truth-of-the-matter-asserted" definition
became internalised in the common law of evidence.

With the passage of the federal rules of evidence, "hearsay" is
axiomatically codified.

Under Federal Rule of Evidence 801, the concept of "hearsay" is analysed
as:

a statement, p, other than one made by the declarant U, while testifying at
the trial or hearing, offered in evidence to prove the truth of the matter
asserted in p.

The substitution of a single, concise rule for a vague, conceptual
principle necessitated some line drawing on the difficult issues presented by
Wright v. Tatham.

Although influential commentators praised Wright v Tatham for its
intellectual integrity, few wanted a hearsay rule as broadly exclusionary as
Wright
v Tatham seems to require.

Furthermore, courts defining "hearsay" in truth-of-the-matter-asserted
terms increasingly held that Wright-type evidence was NOT hearsay.

In discussing statements that are not hearsay, such as verbal acts, Wigmore
states that if an extra-judicial utterance IS offered which is not as an
assertion to evidence the matter asserted, without reference to the truth of
the matter asserted, the hearsay rule should not apply.

This is the language courts adopt.

A handful of reported decisions use the phrase "truth-of-the
matter-asserted" to refer to "hearsay" prior to the publication of Wigmore's
treatise.

Vietor v. Spalding endorses a definition centered on the
"truth-of-the-matter-asserted" formula which appeared in the ill-fated model
code of
evidence and in the slightly more successful uniform rules of evidence.

"Hearsay" is evidence of a statement which is made other than by a witness
while testifying at the hearing offered to prove the truth of the matter
stated.

This was never adopted in any jurisdictions

A "hearsay statement" is a statement of which evidence is offered as
tending to prove the truth of the matter M-INTENDED to be asserted or stated.

The formula got its real boost, however, from C. McCormick, who used it in
his treatise, "HANDBOOK OF THE LAW OF EVIDENCE".

"Hearsay" is evidence or testimony in court or written of a statement made
out of court where such statement being offered as an assertion to show the
truth of matters asserted therein, and thus resting for its value upon the
credibility of the out-of-court asserter.

A series of West Law searches show that in the decade from 1945 through
1954, the year McCormick's treatise was published, 18 reported decisions of
state and federal courts use some variation of "truth of the matter asserted"
to analyse the concept of hearsay.

In the decade following the publication of McCormick's treatise, the number
of reported decisions using that formulation more than tripled, to 65.

In the following decade, coincidentally leading up to the promulgation of
the federal rules, the number more than tripled again, to 231 reported
decisions.

E. Morgan ("Hearsay and Non-Hearsay") proposes an analysis of the concept
of "hearsay" that would include evidence offered for a two-step inference
within the scope of the hearsay rule but admit it under an exception in most
cases.

The best known "implied assertion" cases have been those involving
telephone orders

These trends forced the codifiers of the federal rules of evidence to
decide how evidence offered for the two-step inference should be treated under
their analysis of the concept of 'hearsay'.

The drafters easily dispense with the issue of non-assertive conduct --
Baron Parke's ship captain hypothetical.

They accomplished this by incorporating into Rule 801 the following
definition of a "STATEMENT" as:

(1) an ASSERTION (oral or written) or
(2) non-verbal conduct of a person, if it is m-intended by the utterer as
an ASSERTION.

By providing that conduct can qualify for "hearsay" treatment only if it is
m-intended as an assertion, the analysis unambiguously removes
non-assertive conduct offered for the two-step inference from the scope of the
"hearsay rule".

The rule is not as clear with respect to verbal assertions offered for the
two-step inference, as in the letters in Wright v. Tatham.

In the notes following Rule 801 however the advisory committee expresses
its intention to treat verbal assertions as NOT hearsay when offered for the
two-step inference.

It did so by explaining WHY non-assertive conduct is NOT hearsay.

Modern cognitive research teaches that problems of mis-perception and poor
memory are placed to a gambling or drug-dealing operation and offered in
evidence to prove the nature of the business.

Statements of this type are directly analogous to the letters offered in
Wright v Tatham.

Yet, most American courts hold that they are NOT hearsay because they are
not offered for the truth of the matter asserted.

Rather they are offered for the mere fact that they were made.

Vid: People v. Reifenstuhl; State v. Tolisano; Friedman v. State;
"Annotation: admissibility of evidence of fact of making or receiving telephone

calls".

The uncertainty stems from the placement of the phrase "if it is m-intended
as an assertion" in the definition of "statement" qua assertion.

Because this phrase comes immediately after the portion of the analysis
referring to nonverbal conduct, it modifies only that portion of the analysis
(See D. Seidelson, "Implied assertions and federal rule of evidence 801: a
quandary for federal courts").

On the other hand, the advisory committee interprets the final phrase to
modify the entire conceptual analysis, thus bringing oral and written
assertions within the definition only to the extent that they are intended as
assertions (See P. Rice, "Should unintended implications of speech be
considered non-hearsay? the assertive/non-assertive distinction under Rule 801
of
the federal rules of evidence")

According to the advisory committee's interpretation of rule 801, the last
clause modifies subsections (1) and (2), thereby excluding from the
analysis of the concept of hearsay both conduct and verbal utterances that are
offered to prove something other than what the speaker or actor intended to
communicate by his conduct or words.

Much more significantly, legal commentators have tended to see the risk of
insincerity as the most problematic of the four testimonial infirmities.

Following that line of reasoning, the advisory committee enunciates a
rationale for the exclusion of non-assertive conduct grounded in the reduced
risk of insincerity associated with that kind of evidence.

Admittedly, nonverbal conduct is untested with respect to the perception,
memory, and narration (or their equivalents) of the actor.

But the advisory committee is of the view that these dangers are minimal in
the absence of an intent to assert and do not justify the loss of the
evidence on hearsay grounds.

No class of evidence is free of the possibility of fabrication, but the
likelihood is less with non-verbal than with assertive verbal conduct.

Having spelled out that rationale, the committee added one more sentence.

Similar considerations govern non-assertive verbal conduct and verbal
conduct which is assertive but offered as a basis for inferring something other

than the matter asserted, also excluded from the definition of hearsay by
the language of subdivision.

The committee concludes that the effect of the conceptual analysis of
'statement' is to exclude from the operation of the hearsay rule all evidence
of
conduct, verbal or non-verbal, not intended as an assertion.

The key to this conceptual analysis is that nothing is an assertion unless
intended to be one.

What can be more Griceian than that?

The Committee thus enunciates what might be termed a Griceian
"intent-based" approach to the hearsay rule.

The intent-based approach focuses on what the out-of-court declarant
intends to assert, and then asks whether that intended assertion has been
offered for its truth at trial.

I. Stewart ("Perception, Memory, and Hearsay: A Criticism of Present Law
and the Proposed Federal Rules of Evidence") describes psychological studies
showing deficiencies in human perception and memory.

R. Park describes the approach in Rule 801 as "assertion-centered," in
contrast to the "declarant-centered" approach of the common law ("'I didn't
tell them anything about you": implied assertions as hearsay under the federal
rules of evidence").

Under an assertion definition, an out-of-court statement is hearsay when
offered in evidence to prove the truth of the matter asserted.

Under a declarant definition, an out-of-court statement is hearsay when it
depends for value on the credibility of the declarant.

Because an approach focusing on assertions need not rely on intended
meaning, we do not use his terminology.

If the statement is offered for something other than its intended
assertion, it is not hearsay. Legitimate questions have been raised both about
the
degree of authority that should be afforded the Advisory Committee's Notes
in general 8 and about the validity of the intent-based approach.

Cheers,

Speranza

REFERENCES

Grice, Way of Words, Harvard.
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