This article explores the characteristics and functions of assertion and considers how the term influences the definition of hearsay under Federal Rule of Evidence 801. Rule 801(a) defines hearsay by limiting it to words and conduct intended as an assertion, but the rule does not define the term assertion. Courts and legal scholars have focused relatively little attention on the nature and definition of assertion. That is unfortunate, because assertion is a robust concept that has been the subject of intense philosophic study over recent decades. Assertion is not a mere cypher standing in for whatever speech or conduct one decides to subject to the hearsay exclusionary rule, although that is how the term is often treated by the legal profession. I conclude with recommendations about how to better handle some hearsay problems that center on the definition of assertion.
Assertion and Hearsay,
Dick. L. Rev.
Available at: https://ideas.dickinsonlaw.psu.edu/dlr/vol125/iss2/3
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