Stoddard v. State
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In the Circu it Court for B altimore C ity Cases Nos. 102196037 and 102196038 IN THE COURT OF APPEALS OF MARYLAND No. 70 September Term, 2004 ERIK STODDARD v. STATE OF MARYLAND Bell, C.J. Raker Wilner Cathell Harrell Battaglia Greene, JJ. Opinion by Raker, J. Wilner, Battaglia, and G reene, JJ., concur Filed: December 8, 2005 Erik Stoddard w as convicte d of seco nd degre e murder a nd child ab use resulting in death. The primary question we must answer in this case is whether the trial court erre d in admitting testimony recounting an ou t-of-court utterance allegedly made by a non-testifying eighteen month old child to the effect of is Erik going to get me? The State offered th is utterance as evidence that the child had witnessed Stoddard commit the murder. The case requires us to consid er the evide ntiary question o f whethe r the unintended implications of speech a particular class of implied as sertions may be hea rsay. Both the trial court and the Court of Special Appeals ruled that this evidence was not hearsay. We disagree and reverse the judg ments. I. Three-year-o ld Calen DiRubbo died on the evening of June 15, 2002. T he Grand Jury for Baltimore City indicted Stoddard for the offenses of first degree murder, second degree murder, and child abuse resulting in death. He was convicted by a jury of second degree murder and child abuse resulting in death and acqu itted of first degree murder. T he court sentenced him to a term of thir ty years incarceration for each offense, to be served consec utively. At trial, Deputy Chief Medical Examin er Mary Ripple testified that she had performed an autopsy on Calen, and had determined the cause of death to be multiple blunt force injuries. Foremost among these injuries was a severed bowel, an injury typically associated with the infliction of a trem endous a mount o f force to the abdomen. B ased on laboratory results, Dr. Ripple placed the time of Calen s death between 8:30 and 10:30 p.m., and placed the time of the fatal in jury between four and sixteen hours prior to death. On crossexamina tion, Dr. Rip ple admitted that this range was only an estimate, and that the trauma conce ivably co uld hav e occu rred up to twen ty-four ho urs prio r to death . According to this medical opinion, Calen received the fatal blow between 4:00 a.m. and 6:30 p.m. on June 15 th , or, at the very earliest, sometime after 8:30 p.m. on June 14th . The evidence suggested that, for at least p art of this period, Stod dard wa s the only adult supervising Calen, her older brother Nicholas Jr., and her cousin Jasmine Pritchett, then eighteen months of age. The central issue in this case arose during the testimony of Jasmine Pritchett s mother Jennifer Pritchett. The prosecutor asked Jennifer Pritchett, Since that day, since Saturday June 15 th have you noticed any behavioral changes in Jasmine? Defense counsel objected, and the pro secutor exp lained to the c ourt: I have to prove time frame and I have to prove when the violence occurred, and it obviously happened when this little girl was there. If she s fine when she goes home and nothing happens, then there is a good defense argument that nothing happe ned du ring tha t time pe riod. The court replied, You can get the mother to testify as to what the behavior was before and after. . . I don t even want you to ask her if she s discussed it with her. You can ask her about the diff erence s in the b ehavio r. Despite this ruling by the court, the following exchange then took place: -2- [STATE S ATTORN EY:] Ma am, have you noticed any behavioral changes in Jasmine since Saturday June 15th ? [JENNIFER PRITCH ETT:] Yes, I have. [STATE S ATTORN EY:] And would you describe just the behavioral changes for the jury, please? [JENNIFER PRITCH ETT:] Jasmine has become THE COU RT: Keep your voice up. [JENNIFER PRITCHETT:] Jasmine is very petrified of any strangers introduced to her or if there is any form of loud noise, yelling, anything, she has gotten so upset that she s broken out in hives. She has nightmares and screaming fits. [STAT E S ATTOR NEY:] Have you ever seen any of these behaviors prior to June 15th ? [JENNIFER PRITCH ETT:] No. [STAT E S ATTORN EY:] Has she ever you have never discussed this case with her, have you? [JENNIFER PRITCH ETT:] No. [DEF ENSE COU NSEL ]: Object. THE COU RT: Overruled. [STATE S ATTORNEY:] And [JENN IFER P RITCH ETT:] N o, I have no t. [STATE S ATTORN EY:] And has she ever has she ever asked you a ny questions a bout it? [JENNIFER PRITCHETT:] She asked me if Erik was going to -3- [DEF ENSE COU NSEL ]: Object. THE C OUR T: No, I m going to o verrule it. [STATE S ATTORNEY:] Go ahead, ma am. [JENNIFER PRITCHETT:] She asked m e if Erik w as going to get her. The follo wing co lloquy then too k place at the bench: [DEFENSE COU NSEL ]: Your H onor, not o nly is that h ears ay, but its reliabi lity is te nuous at best. Thi s is fa r beyo nd what I believe was th e Cou rt s discre tion. I m going to mo ve for a mistrial at this juncture. [STATE S ATTO RNEY:] May I be heard? THE COU RT: I ll hear you. [STAT E S ATTOR NEY:] First off, it s not hearsay. It s a question. The child asked a question and by simply in terms of its form, it can t be hearsay. Secondly, it s it s not hearsay isn t a question. H earsay is a statement offered for its truth of the matter asserted. I am not trying to argue that Erik is go ing to get her. What it does sho w is the child s fear THE COU RT: [E]ffects on her, overruled. [ST ATE S ATTORN EY:] Ex actly. THE COU RT: Denied. [DEFENSE COUNSEL]: Thank you. And my motion for mistrial, Your Hono r? THE COU RT: D enied. -4- During the State s clo sing argument, the prosecutor referred to this evidence as follows: And I m sure you re thinking, It s too bad there wasn t an eyewitness. It s a real pity someone didn t see him do this. *** But you know som ething? T here was an eyewitne ss in this case. Unfortunately, she s just too young to c ome into court and testify, and that eyewitness was Jasmine, Jennifer s child. Do you remember when Jennifer testified? She said that starting on June 15th, her little girl, Jasmine, had an ab rupt person ality change. All of a sudden, out of the blue, little Jasmine started to have nightmares. She started to have behavioral problems and she started to ask her mother, Is Erik going to get me? Is Erik going to get me? Now, you heard Jennifer testify. Jasmine was two years old. There was no way she discussed the events of Calen s murder with Jasmine. You know they re not going to discuss this in front of a two-year-old child and she s not going to tell Jasmine anything about this, but Jasmine asked her, Is Erik going to get me? Why? She was afraid of Erik. She didn t ask, Is Nick going to get me? She didn t ask, Is Mark going to get me? She wa sn t afraid of them. She was afra id of Erik . Wh y? Because she saw. She was the eyewitness. She saw what happened to Calen th at day and she was scare d to death it was going t o happ en to he r, too. Stoddard was convicted and noted a timely appeal to the Court of Special Appeals. Before that court, Stoddard argued, inter alia, that Jasmine Pritchett s out-of-court question, Is Erik going to get me, was hearsay when offered to prove the truth of its implied assertion that Jasmine was af raid of Erik Stoddard . The State argued that Jasm ine s question was not h earsay bec ause it wa s sim ply a request for information, spoken without the -5- intent to assert anything, and hence not an assertion for purp oses of Md . Rule 5-801(a). Alte rnatively, the State arg ued that even if Jasmine s question contained an implied assertion, that assertion was E ric is going to get me, and her words were not offered to prove that Eric was in fa ct going to get Jasmine, but rather as circumstantial evidence of her state of mind. The State also argued that any error in admitting the evidence was harmless. The Court o f Spec ial App eals aff irmed. Stoddard v. State, 157 Md. App. 247, 850 A.2d 406 (2004). Tracing the history of the implied assertion doctrine from the noted English case of Wright v. Doe d. Tatham, 112 Eng. Rep. 488 (Exch. Ch. 1837) and 47 Rev. Rep. 136 (H.L. 1838), the Court of Special Appeals held that Jasmine s question is a nonassertiv e verba l utteran ce, an d is not h earsay. Id. at 279, 850 A.2d at 424. We granted Stoddard s p etition for a writ of certiorari to consid er the following question: Did the Court of Special Appeals, purporting to ove rrule this Court s longstanding precedent and drastically narrowing the scope of Maryland s hearsay rule so as to rem ove virtually all implied assertions from the definition of hearsay, err in holding that an out-of- court statement by a non-testifying eighteenmonth-o ld child in wh ich the child implied that she was afra id of Petitioner because she saw him beat the victim was not an implied assertion under Maryland Rule 5-801? Stoddard v. State, 383 Md. 211 , 857 A.2d 112 9 (2004). -6- II. Before this Court, Stoddard argues that Maryland h as retained, an d should retain, the common law view of implied assertions as expressed in Wright v. Tatham, at least as applied to words ra ther than no nverbal co nduct. He argues that Jasmine s question was offered for the truth of a matter impliedly asserted namely, that Jasmine was afraid of S toddard because she had seen Stoddard assault Calen and thus inadmissible hearsay under the Wright v. Tatham approach. The State argues that the evidence was not hearsay under Md. Rule 5-801. First, the State maintains that Rule 5-801 rejected the holding of Wright v. Tatum and that, since the adoption of the Rule, that case no longer defines an asse rtion for pu rposes of h earsay in Maryland. Specifically, the State argues that the implications of an utterance now co nstitute assertions only if the decla rant intended to communicate those implications. It is most unlikely that Jasmine intended to communicate any implied message through her question, the State continues, and therefore neither the question nor any implication of the questio n qualifies as an assertion. Finally, the State contends that any error was harmless beyond a reasonab le doubt. This case presents one facet of the classic implied assertion hearsay puzzle. We must decide whether out-of-court words are hearsay when offered to prove the truth of a factua l propo sition co mmu nicated uninten tionally by th e decla rant. -7- In Maryland, the adm issio n of evid ence is committed ordinarily to the sound discretion of the trial judge. See Merzbacher v. State, 346 Md. 391, 404, 697 A.2d 432, 439 (1997). Hearsay is different. Under Md. Rule 5-802, [e]xcept as otherwise provided by these rules or permitted by applicable constitutional provisions or statutes, hearsay is not admiss ible. In other words, the judge has no discretion to adm it hearsay unless it falls within a constitutional, statutory or rule exception. Maryland Rule 5-801(c) defines hearsay as a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted. The threshold questions when a hearsay objection is raised are (1) whether the declaration at issue is a statement, and (2) whether it is offered for the truth of the matter as serted. If the d eclaration is n ot a statemen t, or if it is not offe red for the tru th of the matter asserted, it is not hearsay and it will not be excluded under the hearsay rule. Stateme nt is defined by Md. Rule 5-801(a) 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 Rule does not define asserte d or a ssertion . The Committee note to Rule 5-801 explains as follows: This Rule does not attempt to define assertion, a concept best left to deve lopme nt in the c ase law . The fact that proffered evidence is in the form of a question or something other than a narrative statem ent, howe ver, does n ot necessar ily preclude its being an assertion. The Rule also does not attempt to define when an assertion , such as a v erbal act, is offered for something other than its truth. -8- Much verb al ev iden ce m ay be s orted into hearsa y and non-hea rsay without too searching an inquiry into th e definitions at issue. In a sim pler case, Jasm ine wou ld have said I saw Erik hit Calen, and these words would be hearsay if offered through Jennifer Pritchett to prove tha t Jasmine h ad in fact se en Erik hit C alen. Or, ha d the wo rds is Erik going to get me been offered through Jennifer to prove that Jasmine was alive, or knew how to speak En glish, or could speak at all at th e time she spoke them, they would be nonhear say. In the instant case, the utterances of Jasmine were not offered for the truth of the words Is Erik going to get me? Nor was Jasmine s mere act of speaking the words relevant in and of itself . Rather, the S tate offered the word s as eviden ce of a fac t the State sou ght to prove, i.e., that Jasmine had witnessed Erik assault Calen DiRubbo. The words in and of themselves contain no information about an assault or about someone named Calen. The implied assertion doctrine arises in this case because Jasmine s q uestion is relevant on ly in that, by asking it, Jasmine may have revealed, by implication, a belief that she had witnessed Erik assaulting Calen. The question before us is whether these words are hearsay when offered to prove the truth of that belief. Contrary to the State s contention, the words are not relevant if of fered me rely to prove that Jasmine was afraid of Stoddard. Jasmine s fear of Stoddard is irrelevant unless it stems from a belief that sh e had seen Stoddard assault Cale n. Althoug h it is conceiva ble that Jasmine s f ear, taken tog ether with h er presenc e during the relevant time frame, was -9- circumstantial evidence that Jasmine witnessed Stoddard assault Calen,1 this conceptualization is a distinction without a differenc e. Jasmine s fear of Stod dard is relevant only if it is ration al, i.e., only if it stems from a real-wor ld condition o r event. To rationally fear Erik Stoddard is to believe the proposition I have a re ason to fear Erik Stod dard. Jasmine s belief in this proposition is relevant only if the reason at issue is her having witnessed Erik assaulting Calen. Thus, in offering Jasmine s fe ar as eviden ce, the State implicitly would be offering Jasmine s belief in the proposition I have a reason to f ear Erik Stodd ard and that reas on is tha t I saw h im assa ult Cale n. III. A. Wright v. Tatham and the Implied Assertions Doctrine The implied assertions doctrine focuses on the implications or inferences contained within or drawn from an utterance, as distinguished from the declaration s literal contents. 1 For a discussion of the mischaracterization of hearsay statements as non-hearsay circumstantial evidence of the underlying p roposition, see Roger C. Park, McCormick on Evidence and the Concept of Hearsay: A Critical Analysis Followed by Suggestions to Law Teachers, 65 Minn. L. Rev. 423, 430 (1981). See also Rona ld J. Bac igal, Implied Hearsay: Defusing the Battle Line Between Pragmatism and Theory , 11 S. Ill. U. L.J. 1127, 1140 (1987) (dying victim s s tatement I lo ve you to ho micide de fendant w ould be irrele vant if offered to prove merely that victim loved defendant; victim s love for defen dant only relevant if reveals belief in defendant s innocence; thus hearsay when offered to prove defendant s innocence). But see Chur ch v. Com monw ealth, 335 S.E.2d 823 (Va. 1985) (admitting child s out-o f-court statement th at sex was dirty, nasty, and it hurt as nonhearsay on groun ds that it was offered m erely to prove child s attitude toward sex, which was circumstan tial evidence that she had been mo lested by defe ndant). See also Bacigal, supra, at 1141-44 (refuting logic of Church). -10- The evidentiary treatment of implied assertions has been the subject of legal debate and controversy for many years, and has been addressed often since the adoption of the Federal Rules of Evidence. Courts around the country are split as to how such evidence should be treated. The starting point for a discussion of the implied assertion doctrine is the English case of Wright v. Doe d. Tatham, 112 Eng. Rep. 488 (Exch. Ch. 1837) and 47 Rev. Rep. 136 (H.L. 1838). The case involved a will and the competency of the testator. The decedent Marsden had left his estate to his steward Wright. Marsden s heir at law, Admiral Tatham, challenged the will on grounds of testamentary incapacity. In defense of the will, before the Court of King s Bench, Wright sought to introduce several letters that Marsden had received from various correspondents. One letter concerned a legal dispute, three concerned business or politics, one thanked Marsden for having appointed the writer to a curateship, and one described a cousi n s voya ge to A merica . Wright, 112 Eng. Rep. 490-92. Wright did not seek to prove the truth of any explicit factual statement within the letters. Wright argued that the letters were com posed in such a w ay as to indicate that their writers believed Marsden sane and of normal intelligence. From the writers belief in Marsden s competence, Wright argued, one could infer that Marsden was competent. The letters were excluded as he arsa y. On appeal in the Exchequer Chamb er, Baron Parke explained as follows: [P]roof of a particular fact . . . implying a statement or opinion of a third party on the matter in issue, is inadmissable in all cases where such a statement or opinion not on oath would be of itself inadmissable; and, therefore, in this case the letters which -11- are offered o nly to prove the compete nce of the testator, that is the truth of the implied statemen ts therein contained, were properly rejected, as the mere statement or opinion of the writer would certainly h ave be en inad missab le. Id. at 516- 17. In reaching his conclusion, Baron Parke introduced the oft-quoted discussion of a sea captain, who after examining his ship carefully, left on an oc ean voyage with his fam ily aboard. According to B aron Parke, the captain s conduct would constitute hearsay if offered to prov e that the ship ha d been seawo rthy. Id. at 516. Baron Parke used the illustration to show that such nonverbal conduct would n evertheless c onstitute hearsay beca use its value as evidence depended on the belief of the actor. This illustration was important in the court s analysis because the main problem sought to be avoide d by the rule against hea rsay an inability to cross-examine the declarant is the same whether or not the assertion is implied from a verbal statement or implied from nonverbal conduct. Thus, assertions that are relevant only as implying a statement or opinion of the absent declarant on the matter at issue constitute hearsay in the same way the actual statement or opinion of the absent declarant would be inadm issible h earsay. State v. Dullard, 668 N.W . 2d 585, 591 (Iow a 2003) (citations omitted). For our purpo ses, B aron Park e s re ason ing, a nd th e com mon -law view , may be expressed as follows: (1) An out-of-court statement is hearsay when offered to establish the truth of a proposition expressed therein; (2) A letter stating I believe Marsden to be compete nt would be hearsay if offered to prove that Marsden was competent; (3) These letters of which the tone and content imply a belief in Marsden s competence are being -12- offered as the functional equivalents o f letters directly professing a belief in Marsd en s competence; (4) Thus, as offered, these letters express th e propositio n that Ma rsden is competen t; and (5) Therefore, these letters are hearsay if offered to prove Marsden s competence. Stated m ore g ener ally, the doctrine holds that where a d eclarant s out-of-court words imply a belief in the truth of X, such words are hearsay if off ered to prove that X is true. In its original Wright v. Tatham form, the doctrine did no t inquire into the declarant s intent beliefs communica ted accidentally by implication are as much implied assertions as beliefs expres sed pu rposef ully in an in direct m anner. As evidenced by the sea captain hypothetical, the doctrine also did not disting uish betw een wo rds and no n-verbal co nduct. B. Federa l Rule of E vidence 8 01(a) and Its Adviso ry Comm ittee Note Perhaps the most significant development in the American judicial treatment of implied assertions was the 1973 adoption of the Federal Rules of Evidence, and the subsequent adoption by n ume rous state s inclu ding this S tate of su bstantial ly similar rules The drafters of the Federal Rules apparently agreed with commentators criticisms of the common law rule that implied a ssertions sho uld be treated as hearsay. Th ey expressly abolished the implied assertions doctrine with respect to non-verbal conduct not intended by the actor as a communication. As to words, the drafters were more equivocal while the -13- Advisory Committee note to Fed. R. Evid. 801(a) states that nothing is an assertion unless intende d to be o ne. Fed . R. E vid. 8 01(c ) def ines hea rsay as a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted. F ed. R. Evid . 801(a) def ines statem ent as (1) an oral or written assertion or (2) nonverbal conduct of a person, if it is intended by the person as an assertion. As to non -verbal con duct, the R ule injects unequivocally an intent require ment into the common-law implied asse rtion doctrine . Non-ve rbal condu ct is not a statement under the Rule and thus cannot be hearsay unless the actor intended the conduct to be an assertion. A definition of assertion is not necessary to reach this con clusion; part two of the rule c ontains the wo rd inten ded e xplicitly. The part of the Rule governing speech and writing doe s not contain the wo rd intend ed. Rather, w ords qualif y as a stateme nt under th e Rule if they constitute an oral or written assertion. The question of whether the Rule incorporates an intent requirement with respect to words depends upon whether assertion, standing alone, denotes an intentional comm unicatio n. Although the federa l Rule does not define assertion, the Advisory Committee note to the Rule states that nothing is an assertion unless intended to be one. 56 F.R.D. 183, 293 (1972). Th e Adviso ry Comm ittee s view w ith respect to words appears to be as follows: If the declarant inte nded to co mmun icate the factual proposition which the words are offered -14- to prove as true, then the words are h ears ay. If the declar ant did not in tend to com municate that pro position , the wo rds are n ot hears ay. The federal Advisory Committee note has been the source of disagreement in the courts and amo ng schola rs. Some f ederal cou rts construe Fed. R. Evid. 801(a) in accord w ith the Advis ory Com mittee n ote. See, e.g., United States v. Long, 905 F.2d 1572, 1579-80 (D.C. Cir. 1990) (citing Adv isory Committee note in holding that telephone conversation testified to by police officer was not hearsay where the caller inquired about drug transaction because no assertion was inten ded by caller); United States v. Lew is, 902 F.2d 1176, 1179 (5th Cir. 1990) (same); United States v. Perez, 658 F. 2d 654, 659 (9th Cir. 1981) (citing Advisory Committee note in holding use of defendant s name on telephone non-hearsay when offered to prove defendant was on the line; declarant impliedly believed defendant was on the line but did not intend to assert that fact); United States v. Zenni, 492 F. Supp. 464, 469 (E.D. Ky. 1980) (citing Advisory Committee in ruling that telephone instructions to place bets were non-hearsay when offered to prove defendant was a bookmaker becau se callers did not intend to assert that defen dant was a boo kmaker wh en placing their bets). Other courts have interpreted the Rule with a different result. See, e.g., United States v. Palma-Ruedas, 121 F.3d 841, 857 (3d Cir . 1997) , rev d on other grounds, 526 U.S. 275, 119 S. Ct. 1239, 143 L. Ed. 2d 933 (1999) (holding statement nice to meet you hearsay when offered to prove truth of implication that declarant was meeting listener for the first time); United States v. Reynolds, 715 F.2d 99, 104 (3d Cir. 1983) (holding ph rase I didn t -15- tell them anything about you hearsay when offered to prove truth of implication that defendant was particip ant in crime); Lyle v. Koehler, 720 F.2d 426, 432-33 (6th Cir. 1983) (holding letters detailing request for recipient to give false alibi testimony hearsay when offered to prove truth of implication that declarant and co-conspirator d efendant were guilty). C. The Task of Defining Assertion Left to the Courts in Maryland In the testamentary capacity case of Waters v. Waters, 35 Md. 531 (1 872), this Court considered whether certain letters w ere admiss ible to show the manner in which the testator was treated, in rega rd to matters o f business . . . by on e well acq uainted w ith him, in order to establish the le tter-writer s opinion s in regard to the sanity of th e testator, and h is competency to transact business. Id. at 543. In excluding the letters, the Court adopted the rule laid down in Wright v. Tatham, which had presented substantially the same factual senario. Maryland Rules 5-801(a), 5-801(c), and 5-802 are identical to the federal counterparts, and, as discussed supra, man y federal courts have rejected the Wright v. Tatham proposition that out-of-court w ords are hearsay when offered to prove facts that the declarant impliedly believed but did not intend to communicate. When the words of a Maryland rule and federal rule are the same or similar, often we look to interpretations of the fed eral rule in cons truing th e Mar yland Ru le. See e.g., Ragland v. State, 385 M d. 706, 720 , 870 A.2d 609, 617 (2005); Beatty v. Trailmaster, 330 Md. 726, 738 n. 8, 625 A.2d 1 005, 10 11 n. 8 (1993). Federal court interpretations of federal rules are -16- considered persuasive, but are not bindin g on thi s Court in interp reting a M aryland ru le. See e.g., Pinkney v. State, 350 Md. 201 , 235, 711 A.2d 2 05, 222 (1998); State v. Matusky, 343 Md. 467, 490 , 682 A.2d 694, 705 (1996); Walker v. S tate, 338 Md. 253, 260, 658 A.2d 239, 242 (1995). The Committee note to Md. Rule 5-801 departs substantially from its federal counterpa rt. Rather than restricting the definition of assertion, the note does not attempt to define assertion, a concept best left to development in the case law. It is clear that in adopting the Maryland Rule, this Court did not intend to adopt the federal Advisory Committee s view that nothing is an assertion unless intended to be one, but rather intended to leave to case law the viability of the rule of Wright v. Tatham. D. Theory Underlying the Rule Against Hearsay in General In order to dete rmine w hether the u nintentiona l implications o f words s hould rem ain within the definition of hearsay, w e first look to th e theory underlying the rule against hearsay in general. In contrast to the intent-based approa ch of the federal A dvisory Committee, scholars ha ve focus ed on the v eracity of the declarant and have identified four factors (sometimes termed testimonial inferences ): (1) sincerity (the danger of fabrication); (2) narration (the danger of ambiguity); (3) perception (the danger of inaccurate observation); and (4) memo ry (the dan ger of f aulty reco llection) . See Edmund M. Morgan, Hearsay Dangers and the Application of the Hearsa y Conce pt, 62 Harv. L. Rev. 177, 185-88, -17- 218 (1948) (stating that the rational basis for the hearsay classification is not the formula, assertions offered for the truth of the ma tter asser ted, but rather the presence of substantial risks of insincerity, and faulty narration, memory and perception. . . . ) See also 4 Clifford S. Fishman, Jones on Evidence § 24-1 at 209 (2000); 2 McCormick on Evidence § 245 at 93 (John W. Strong ed., 5th ed. 1999) ; Rona ld J. Bac igal, Implied Hearsay: Defusing the Battle Line Between Pragmatism and Theory, 11 S. Ill. U. L.J. 1127, 1130; Ted Finman, Implied Assertions as Hearsay: Some Criticisms of the Uniform Rules of Evidence, 14 Stan. L. Rev . 682, 68 4-85 (1 962). Each of the four inferences is strengthened by the requirement that testimony be given in court, u nder oa th, and s ubject to cross-e xamin ation. T he witness s presence allows the fact finder to ob serve physica l limitations aff ecting perception, hesitancy or inconsistency suggesting imperfect memory, unclear or idiosyncratic use of language rendering narration ambiguous, or a demeanor suggestive of intentional falsehood. The oath, and with it the threat of pros ecut ion f or pe rjury, increase s the likel ihoo d of sincerity. Most important to the testimonial inferences is the availability of cross-examination, a procedure Professor John Wigmore described as beyond any doubt the greatest legal engine ever invented for the discovery of truth . Wig more, supra, § 1376, at 32. All four inferences may be called into question by cross-examination. When, in lieu of in-cou rt, swor n testim ony, a fact is presented to the fact finder from an out-of-court declarant, the four inferences are u ndermined con siderably. The declarant s -18- bare words re veal little or nothing about the circumstances under which the declarant came to believe the factual proposition communicated, nor about the accuracy of the declarant s memory. They do not indicate the declarant s tone or demeanor, the circumstances surrounding the utterance, or the motives w hich migh t have influ enced the declarant to speak falsely. It is cross-examination, combined with the safeguards of presence and oath, that shores up the in ferenc es of p erceptio n, mem ory, narrat ion, and sincerity. E. Hearsay Theory As It Relates to the Unintended Implications of Words The State points to the federa l Advis ory Committee note to F ed. R. Evid. 801(a), stating that both verbal and no nverbal implied assertions, if unintentional, should be excluded from the definition of hearsay. The Committee note states as follows: [N]onverbal conduct . . . 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. This sequence is, argu ably, in effect an assertion of the existence of the condition and hence pr operly includable w ithin the hears ay concept. Admitted ly evidence of this chara cter is untested with respe ct to the perc eptio n, me mory, and narration (or their equivalents) of the actor, but the Advisory C ommittee 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 no nverbal th an with assertive verbal conduct. The situations giving rise to the nonverbal conduct are such as virtually to eliminate questions of sincerity. Motivation, the nature of the conduct, and the presence or absence of reliance will bear heavily upon the weight to be given the evidence. Similar considerations govern nonassertive verbal -19- 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 subdiv ision (c) . 56 F.R.D. 183 , 293 (1972) (citations om itted). The view expressed in the federal Committee note has been criticized in court cases and by legal commentators. The notion that evidence untested with respect to the perception, memory, and narration (or the ir equivalents) of the actor pos es minimal dange rs in the absence of an intent to assert has been labeled a non sequitur on the grounds that the inferences of perception, memory, and narration are wholly independent from any intention to assert. The fact that a declarant may not have intended to communicate a particular factual proposition reveals noth ing about th e circumsta nces und er which the declaran t came to believe that proposition, nor about the clarity with w hich the declarant remem bers the underlying events. Professor Paul Rice explains the point as follows: Of the four da ngers giv ing rise to the hearsay exclusionary rule perception, mem ory, sincer ity, and am bigu ity the assertive/nonassertive distinction addresses only one: the danger of in sincerity (i.e. intentional m isrepresenta tion). If a declarant possesses no intention of asserting anything, it wo uld seem to follow that he also possesses no intention of misrepresenting anything . It is a non sequitur to conclude from this, as the Advisory Com mittee has, that the remaining da ngers of perception , memory, and ambiguity are a utomatically minimized with this assurance of sincerity. The logical link which the A dvis ory Committee finds between sincerity and error is simply n onexis tent. -20- Paul R. Ric e, Should Unintended Implications of Speech be Considered Nonhearsay? The Assertive/Nonassertive Distinction Under Rule 801(a) of the Federal Rules of Evidence, 65 Temp. L. Rev. 529, 531 (1992). 2 See also David E. Seidelson, Implied Assertions and Federal Rule of Evidence 801: A C ontinuing Q uandary for Feder al Courts , 16 Miss. C. L. Rev. 3 3, 34-3 5 (199 5); Bac igal, supra, at 1132 ; Finma n, supra, at 685-86. The Supreme Court of Iowa echoed these concerns in State v. Dullard, 668 N.W.2d 585, 590 (Iowa 20 03): [T]he persuasiveness of the committee notes on implied assertions is undermined by the clear split of authority among the federal circuit courts, as well as many legal scholars. *** The circumstances of this case, as well as other cases, can make it tempting to minimize hearsay dangers when a declaration is assertive but offered as a basis for inferring a 2 Professor Rice reiterated this point recently, noting as follows: The definition of hearsay in Rule 801 incorporates the assertive/nonassertive distinction, which admits unintended statements of an o ut-of-c ourt de clarant a s non-h earsay. E ven though the hearsay problems of perception, memory and ambiguity are still present, the statement is admitted for the truth of its content, and since it was unintended, the statement must be sincere . This distinction is illogical to the point of being absurd. The most that a nonassertive statement can guarantee is that it is sincerely erron eous. To m ake matters worse, co urts are interpreting and applying the assertive/nonassertive distinctio n in diff erent w ays. Paul R. Ric e, S YMPOSIUM: F EDERAL P RIVILEGES IN T HE 21ST C ENTURY: B ACK TO THE F UTURE WITH P RIVILEGES A BANDON C ODIFICATION, N OT THE C OMMON L AW, 38 Loy. L.A. L. Rev. 739, 764-765 (2 004) (emphasis ad ded). -21- belief of the declarant that most likely was not a significant aspect of the communication process at the time the declaration was made. Absent unusual circumstances, the unknown declarant likely would not have thought about communicating the implied belief at issue, and this lack of intent arguably justifies excluding the assertion f rom the hearsay rule. Nevertheless, we are not convinced that the absence of intent necessarily makes the underlying belief m ore reliable, esp ecially when the belief is d erived from verbal con duct as op posed to nonverb al conduc t. Four dangers a re generally identified to justify the exclusion of out-of-court statements under the hearsay rule: erroneous memory, faulty perception, ambiguity, and insincerity or misrepresentation. Yet, the distinction drawn between intended and unintended conduct or speech only implicates the danger of insincerity, based on the assumption that a person who lacks an intent to assert something also lacks an intent to misrep resent. Id. at 593-94 (citations omitted). With respect to the danger o f ambigu ous narratio n, Professo r Ronald B acigal suggests that absence of an in tent t o communic ate a ctua lly increases the danger of misunderstanding. He explains this theory as follows: If there is a distinction in the ambiguity of intended and implied assertions, the distinction indicates that unintended implied assertions are inherently more ambiguous. When a declarant consciously intends to communica te with an observer, he desires his communication to be understood by that observer. . . . With u nintenti onal im plied as sertions , however, the declarant makes n o effort to a void amb iguity, because th ere is no intent to convey his message to anyone. Thus, unintentional implied assertions ha ve an inhe rently greater po tential to be more ambiguous than intended assertions. The Federal Rules have it backward by classifying the less ambiguous intended -22- assertions as hearsay, while classifying the more ambiguous uninten tional as sertions as non hearsa y. Ronald J. Bacigal, Implied Hearsay: Defusing the Battle Line Between Pragmatism and Theory, 11 S. Ill. U . L.J. 112 7, 1132 (1987 ). The federal Comm ittee Note h as been critic ized also fo r conflating its analysis of the dangers posed by words with the dangers posed by nonverbal conduct. In particular, critics argue that l anguage alm ost always conveys some intended meaning, and that the value of words as evidence of an underlying belief will necessarily depend on the sincerity with which the intentional meaning of those words is communicated.3 Professor Rice ad dresses this problem as follows: If the justification fo r the assertive/n onassertive distinction is the absence of the insincerity problem, and through that guarantee of sincer ity a re duced le vel o f per cept ion, m emo ry, and amb iguity problems, this justification c annot be a pplied to implied statements from speech. Speech is a mechanism of communication; it is virtually always used for the purpose of communicating something to someo ne. It is illogical to conclude that the question o f sincerity is eliminated and that the problem of unreliability is reduced for unintended implications of speech if that speech might have been insincere in the first instance, relative to the direct m essage inten tionally communicated. If potential insincerity is injected into the 3 The concurring opinion argues that the majo rity has committed itself to an antiquated and wh olly illogical view by adhering to the implied assertions doctrine as it relates to assertions implied from out-of-court words. Concurring op. at 2. Despite the claimed illogic of the Court s holding today, the concurring opinion has not even attempted to answer our central argument that, with respect to assertions implied from ou t-of-court words, all four hearsay concerns of sin cerity, narration, pe rception, an d memo ry are still present. -23- utterance of words that form the basis for the implied communication, the implication from the speech is as untrustw orthy as th e utteran ce upo n whic h it is bas ed. Rice, supra, at 534. Professor Michael Graham considers this problem in his Handbook of Federal Evidence: The Advisory Committee s apparent attempted rejection of Wright v. Doe d. Tatham is as unfortu nate as it is inco rrect. When a statement is offered to infer the declarant s state of mind from w hich a giv en fact is inferred in the form of an opinion or otherwise, since the truth of the matter asserted must be assumed in order for the nonasserted inference to be drawn, the statement is properly classified as hearsay under the language of [Fed. R. Evid] 801 (c). Since the matter asserte d in the stateme nt mus t be true, a reduction in the risk of sincerity is not present. The Ad visory Committee s reliance on the analogy to nonverbal nonassertive conduct where a reduction in the risk of fabricatio n is cause d by a lack of intent to assert anything is thus cle arly misco nceive d. 3 Mich ael H. G raham , Handbook of Federal Evidence § 801.7, at 73-77 (5th ed. 2001) (citations omitted). 4 4 The concurring opinion s discussion of the treatment of the implied assertions doctrine in the treatises is incomplete. The discussion leaves the impres sion that it is presently beyond serious dispute that the Federal Rules of Evidence reject the implied assertion doctrine in total, and rightly so. See generally concurring op. at 21-23. For instance, the concurring opin ion says the following abo ut Mueller and K irkpatrick s F EDERAL E VIDENCE: Mueller and Kirkpatrick purport to see some limited lingering value in Wright s analysis of the so-called two-step inference (belief from conduct, fact from belief), but they acknowledge that FRE 801 rejects the broad proposition endorsed by Baron Parke and suggest that, arguably, it would be wiser to forget Wright than continue to discuss it. (contin ued...) -24- The Iowa Supreme Court addressed this issue in Dullard, reasoning as follows: [E]ven the danger of insincerity may con tinue to be p resent in those instances where the reliability of the direct assertion may be questioned. If the expressed assertion is insincere, such as a fabricated story, the implied assertion derived from the expressed assertion will similarly be unreliable. Implied assertions can be no more reliable than the predicate expressed assertio n. Dullard, 668 N.W.2d at 594. We conclude that, with respect to the four testimonial inferences, out-of-court words offered for the truth of u nintentiona l implications a re not diffe rent substan tially from out-ofcourt words offered for the truth of intentional communications. The declarant s lack of intent to communicate the implied proposition does not increase the reliab ility of the declarant s words in a degree sufficient to justify exemption from the hearsay ru le. Said 4 (...continued) Concurring op. at 22 (qu oting Chr istopher B . Mueller and Laird C. K irkpatric k, F EDERAL E VIDENCE § 378 (2d ed. 1994)). The concurring opinion seems to be implying here that Mueller and Kirpatrick believe (1) that the implied assertion doctrine is inconsistent with the Federal Rules of Evidence, and therefore (2) that Wright is no longer significant in the law of evidence because the doctr ine developed in it has been rejected. Neither of these propo sitions is a ctually sup ported by wha t Mue ller and K irkpatric k say. The broad proposition in Wright that Mueller and Kirpatrick say is rejected by Federal Rule of E vidence 801 is that assertions implied from any conduct, verbal or nonverb al, are statem ents fo r purpo ses of th e hears ay rule. M ueller an d Kirk patrick, supra § 378. In fact, M ueller and K irkpatrick rec ognize tha t Wright is of continuing significance precisely because th e issue of whether assertions implied from words are statements for purposes of the hearsay rule is an open question under the Federal Rules. Mueller and Kirkpatrick go on to argue that a case can be made that the exclusion of the letters in Wright would be the correct result if the case were decided under the Federal Rules because, unlike a case of nonverbal conduct, the au thors of the letters expres sed ide as and i nform ation. Mue ller and K irkpatric k, supra § 378. -25- another way, we conclude that a declarant s lack of intent to communicate a belief in the truth of a particular proposition is irrelevant to the determination of whether the w ords are hearsa y when offere d to pro ve the tru th of tha t propo sition. We hold that where the probative value of words, as offered, depends on the declarant having communicated a factual proposition5 , the words constitute an assertion of that proposition. The declarant s in tent vel non to comm unicate the p roposition is irrelevant. If the words are uttered out of court, then offered in court to prove the truth of the proposition i.e. of the matter a sserted the y are hear say unde r our rule s. F. Other Courts in Accord with Our View Other courts, albeit a minority, around the country have adopted the same approach to the interpreta tion of the Federal Rules of Evidence or Federal Rules-derived hearsay provisions.6 In United States v. Reynolds, 715 F.2d 99 (3d Cir. 1983), appellant Parran s co- 5 A reason able test is to ask wh ether the w ords wo uld remain probative if it could be established that the decla rant did not believe the factual proposition for wh ich they are offered. 6 Inasmuch as the concurring opinion fails to address the policy considerations the majority opinion has advanced, the concurring opinion s argument amounts ultimately to the claim that this Cou rt should rejec t this view sim ply because th e majority of federa l circuits and state courts have done so. This Court has never taken the approach that it should decide issues not peculiar to M aryland law in accordan ce with a majority view simply becau se it is the majority v iew. See, e.g., Cheek v. United Healthcare, 378 Md. 139, 144, 167, 835 A.2d 656, 659, 673 (2003 ) (holding that arbitration agreement was unenforceable for lack of consideration because emplo yer s promise to arbitrate was illusory given that employer had unfettered discretion to rescind or a lter the arbitration agreeme nt, despite dissenting opinion (contin ued...) -26- defendant Reynolds had been arrested after attempting to negotiate a stolen unemployment compensation check . Id. at 101. Postal inspectors testified that after Reynolds s arrest he said to Parran I didn t tell them anything about you. Id. The gov ernment o ffered this testimony as evidence of a conspiracy between R eynolds and Parran, and o f Parran s participation in the offenses charged. The Un ited States Court of A ppeals for the Third Circuit found that this evidence was hearsay as offered. The Court stated as follows: Reynolds statement is . . . am biguous a nd suscep tible to different interpretations. As the government uses it, the statement s probative value depends on the truth of an assumed fact it implies. Unless the trier assumes that the statement implies that Reynolds did not tell the postal inspectors that Parran was involved in the conspiracy to defraud, even though Parran was in fact involved, the statement carries no probative weight for the government s case. For if the trier assumes that the statement implied that Reynolds did not tell the postal inspectors that Parran was involved because there was nothing to tell, the statement has no relevance to the government s case. Its only relevanc e to the govern ment s cas e is tied to an assumed fact of petitioner s guilt that the government argues the utterance proves. Thus, depending on the interpretation given the content of Reynolds statement, it is either proba tive or not. Consequently, we believe that, as the government uses it, the statement s relevance goes well beyond the fact that it was uttered. It is not merely intended to prove that Reynolds co uld 6 (...continued) noting that the majo rity view is that a rbitration agre ements of this sort are en forceable because employer gives consideration in form o f employment offe red to employee). Further, the fact that we are interpreting the Maryland Rules of Evidence provides no special reason to automatica lly follow the m ajority rule, as these very rules require us to exercise our independent judgment in interpreting them so that truth may be ascertained and proceedings justly determined. Md. Rule 5-102. -27- speak, or that he could speak in English, or even that he directed a statement toward Parran. Instead, the govern ment off ers it to prove the truth of the assumed fact of defendant s guilt implied by its conte nt. Id. at 103. The Third Circuit addressed this issue again in United States v. Palma-Ruedas, 121 F.3d 841 (3d Cir. 1997). Appellant Quinones was charged with, inter alia, participation in a drug conspiracy and the kidnaping of his erstw hile con federa te Eph rain Av endan o. Id. at 845. Under the government s theory of the case, Quinones and Avendano had met to discuss details of the d rug c onsp iracy. After a deal had gone sour, other members of the conspiracy had held Avendano against his will for four weeks, transporting him from Texas to New Jersey. Avendano and his captors had arrived at Quinones s New Jersey house, then traveled to a house in M arylan d. Quino nes h ad al so go ne to the M aryland house, but in a different car than A venda no. Under Quinones s theory of the case, he had not been a member of the drug conspira cy and hence had not met Avendano previously, nor had he known that Aven dano w as in cap tivity. Id. at 857. At trial, Quinones tried to introduce testimony that he had said nice to meet you upon Avendano s arrival at his house to show that he had not met Avendano previously and did not know he was in captivity. The district court excluded this evidence as hearsay. The Third Circuit affirmed, reasoning as follows: Quinones makes a hypertechnical, syntactic argument by asserting that the relevance of the statement was not that -28- Quinones really thought th at it was nice to meet Avend ano but, rather, merely that the statements were said. Quinones s counsel, however, underm ined this argument in closing when he asserted that Quinones could not have been at the November 1994 meeting because they never met before January 1, 1995 . While Quinones may not have offered the statement for its express meaning, he did offer it for the implied assertion that he had never m et Ave ndano . Statements offered to support an implied assertio n are in admis sible he arsay. Id. (citations omitted) (emphasis add ed). In Lyle v. Koehler, 720 F.2d 426 (6th Cir. 198 3), petitioner L yle challenged his Michigan murder convictio n on fede ral habeas corpus. He claime d that his Six th Amendment right of confrontation had been violated by the introduction of letters written by his co-def endan t Kem p while awaitin g trial. Id. at 429. Kemp had written to two potential witnesses, outlining the (presuma bly perjured) testim ony he wish ed them to give at trial. Eschewing a confrontational clause analysis, the United States Court of Appea ls for the Six th Circuit employed a conven tional hearsa y analysis. The court found these letters to be hearsay, stating as follows: Believing the alibi to be f alse, the prose cution obviously did not seek to introduce the letters in order to demonstrate the truth of the particular statements they contained. Rather, the government intended to have the jury infer from the statemen ts that Kemp was attempting to ob tain f abricate d alib i testi mon y, an act that revealed a guilty mind on his part regarding the shootings. This guilty mind inference in turn invited the jury to infer Kemp s substantive guilt. Thus, in determining whether the letters constitute hearsay, we must decide whether the inferences that the government sought to elicit by introducing them should be included within the set of assertions that the letters make. -29- *** Although we consider the question of the proper classification of the letters exceedingly close, we find that the inferences they necessarily invite form an integral part of the letters. They were introduced because by inference they assert the proposition of fact that Kemp and Lyle committed the robbery and hence need an alibi. Accordingly, we conclude that the letters are hea rsay. Id. at 432- 33 (citat ions om itted). In State v. Dullard, 668 N.W.2d 585, 590 (Iowa 2003), the petitioner had been convicted of possessing pseu doephedrine with the intent to use it as a precursor to the manufacture of methamphetamine. Police had discovered the pseudoephedrine (a common over-the-counter drug not itself illegal to possess absent an intent to use it as a precursor) in a search of Dullard s garage. Other items used in the manufacture o f methamph etamine were also discovered, along with a notebook containing the following words: B I had to go inside to pee + calm my nerves somewhat down. When I came out to go get Brian I looked over to the street North of here + there sat a black + white w/the dude out of his car facing our own directio n n o one e lse was with hi m. Id. at 588. Over Dullard s hearsay objection , the State introd uced the n otebook a t trial, aruging that the note, p resumab ly identifying Brett D ullard by his first initial, w as offered to tie Dulla rd to the garage and its c ontents , not for the truth of any m atter asse rted ther ein. -30- The Iowa Supreme Court found that the words in the notebo ok w ere h ears ay, because they had been offered solely to show the declarant s belief, implied from the words and the message conveyed, in a fact the State seeks to prove Dullard s knowledge and possession of drug lab materia ls. Id. at 591. The court recognized that Iowa Rule of Evidence 5.801 was substantially identical to Fed. R. Evid. 801, an d that under the federal A dvisory Committee s view, the notebook would not constitute hearsay when offered for this purpose. The court then stated as follows: The consequence of the committee s approach is to admit into evidence a declaran t s belief in the e xistence of a fact the evidence is offered to prove, without cross-examination, just as if the decla rant had explicitly st ated the belief. Y et, if the declarant of the written note in this case had intended to d eclare his or her belief that Dullard had knowledge and possession of drug lab materials, the note would unquestionably cons titute hear say. Implied assertions from speech intended as communication clearly come within the definition of a statement under rule 5.801(a)(1). Unlike the committee, however, we do not believe indirect or unintentional assertions in speech are reliable enough to avoid the hearsay rule. We think the best approach is to evaluate the relevant assertion in the context of the purpose for which the evidence is offered. We recognize this approach will have a tendency to make most implied assertions hearsay. However, we view this in a favorable manner because it means the evidence will be judged for its admission at trial based on accepted exceptions or exclusions to the he arsay rule . It also establishes a better, more straightforward rule for litigants and trial courts to understand and ap ply. Dullard, 668 N .W.2d at 594- 95 (citat ions om itted). -31- The Court of Appeals of Texas also rejected the federal Advisory Committee approach to hearsay, concluding that [m ]atter asserted include s any matter ex plicitly asserted, and any matter implied by a statement, if the probative value of the statement as offered flows from the declarant s belief as to the matter. Mosley v . State, 141 S.W.3d 816, 829 (Tex. Ct. A pp. 2004). The co urt held that the w ords, W ell, I can t watc h them all the time were hearsay under Tex. R. Evid. 801 when offered to prove the truth of the de clarant s implied belief that her husba nd had sexually assaulted their gran ddaughter. Other jurisdictions ap plying the com mon law , rather than rules-based evidentiary regimes, also retain the Wright v. Tatham view.7 See, e.g ., Ginyard v. United States, 816 A.2d 21, 40 (D.C . 2003) (ad vice to urina te on hand was hea rsay when o ffered to prove truth of declarant s implied belief that listener had recently fired a gun and needed to eliminate residue); Brown v. Comm onwea lth, 487 S.E.2d 248, 252 (Va. Ct. App. 1997) (question does Peggy know I m here was hearsay under the common law when offered to prove that declarant was perso nally acquainted with Pegg y). 7 The concurring opinion s proposed rule, in contrast to the common law rule we reaffirm today, would be difficult to apply in practice, particularly in situations where trial judges are required to make im mediate decisions on h earsay objections. In many instances, it is simply unclea r, particularly at first glance, whether a declarant intended an assertion that is implied by the words he or she has used. In such situations, the concurring opinion s proposed rule wo uld leav e trial jud ges w ith little pra ctical gu idance . See Dullard, 668 N.W.2d at 595 (recognizing implied assertion doctrine because it establishes a better, more straightforward rule for litigants and trial courts to understand and apply than the federal advisory committee appro ach). -32- G. Can a Question be a Statement? Having rejected the declarant-intent basis for determining whether an utterance is an assertio n, and hence a statement capable of being hearsay, we turn next to the narrower issue of whether an utteranc e may qualify as a n assertion and a sta tement if it o ccurs in the form of a question. The grammatical form of an utterance does not control whether the words are h earsay. As the Committee note to Maryland Rule 5-801 explains, [t]he fact that proffered evidence is in the form of a question or something other than a narrative statement . . . does n ot nece ssarily prec lude its b eing an assertio n. Our definition o f hearsay lead s to the conc lusion that the particular form of an utterance is not determinative of whether an utterance is an assertion and hence potential hear say. An o ut-of-co urt question m ay be p roba tive b ecau se, by asking it, the declarant potentially communicated a given factual proposition. Offering the question to prove the truth of that proposition presents the dangers we have explained supra. Through faulty perception or memory, the declarant may have been mistaken in believing the proposition at issue. Through the declarant s ambiguous use of language, the fact finder may misunderstand what the declarant was asking, and thus draw incorrect inferences to supposed implications. The declarant may have been insincere in asking the question i.e. may have been pretending ignorance as to the subject matter or feigning interest in the information sought thus giving rise to misleading inferences about his or her underlying beliefs. -33- In Brown v. Comm onwea lth, 487 S.E.2d 248, 252 (Va. Ct. App. 1997), the defendant was charged with burglary and sex crimes after he allegedly broke into a woman s apartment and sexually assaulted her. Brown claimed that the complainant had consented to the sexual acts and to his entry into her apartment, and contended that they had known each other for some time. In support of this theory, Brown sought to introduce a police officer s testimony that Brown had asked does Pe ggy know I m here during his detention at a police station. The trial court held that these w ords wer e hearsay. Th e Virginia C ourt of A ppeals affirmed, explaining as follow s: The defendant offered the statement, Does Peggy know I am here? , to prove by implication from the question that he personally knew the victim. In order for the jury to infer from the statement that the defendant knew the victim, the jury had to determine the truth or falsity of the implied assertion. The statement s probative value depended entirely upon the truth of an inferred fa ct that the statement implied and as such it was hear say. Defendant s statement to Officer Berryman was not relevant for any other purpose and the fact that the statement was made in no wa y proved the d efendan t s relationship w ith the victim unless the truthfulness of the implied assertion was accepted. Therefore, the statement was offered to prove the truth of its conte nt and it w as inad missible hearsa y. Id. at 252. -34- IV. Under the approach we have set out, Jasmine Pritchett s words were hearsay as utilized. Jasmine sp oke the w ords is Erik going to g et me? U nder the S tate s theory of th is case, by speaking these words, Jasmine impliedly communicated that she had witne ssed Erik Stoddard assaulting Calen DiRubbo. The State offered these words to prove the truth of that implied factua l propo sition, i.e. to prove that Jasmine had in fact witnessed Stoddard assaultin g Cale n. In order to accept t he words is Erik going to get me as evidence that Jasmine witnessed Erik Stoddard assaulting Calen DiRubbo, the jury needed to make numerous inferences. It needed to infer first that Jasmine meant those words to convey a sin cere inquiry as to whether Erik Stoddard was going to harm her. It needed to infer next that, by making this inquiry, Jasmine revealed unambiguo usly a belief that she had witnessed Stoddard assaultin g Cale n. It needed to infer further that Jasmine remembered accurately her perceptions of June 15, 2002. And it needed to infer finally that Jasmine s perceptions we re correct at the moment she experienced them. In the absence of cross-examination, and particularly in light of Jasmine s age,8 these inferences are largely untested and unsupportable. T he jury had no information about the 8 Jennifer referred to Jasmine as having been eighteen months old at the time of Calen s death on June 15, 2002. The date on which Jasmine spoke the words at issue is not evident from th e record . Jennifer testified on March 1 0, 2003. Jasmine w as thus somew here between eighteen and twenty-seven months old at the time she asked is Erik going to get me? -35- context in which Jasmine spoke these words, and hence little basis from which to conclude that she used get to mean harm, or that these words were spoke n seriously and not in play. The jury had no information about other, unrelated reasons why Jasmine might have feared Stoddard. It had no information about Jasmine s ability to remember accurately past events, nor any information about the amount of time that had elapsed between Calen s d eath and Jasmine s utterance. It had no information about factors that would have affected Jasmine s perceptions during the alleged assault, such as distance, angle of view, obstructions, or Jasmine s cognitive ability to distinguish an assault from some other frightening but innocu ous even t. Jasmine s out-of-co urt question , repeated in c ourt by her m other with minimal information as to its context, is unreliable as evidence that Jasmine had witnessed Stodda rd assault Calen. Th e question is untested as to narration/a mbiguity and sincerity. Its relationship to the factual proposition it supp osed ly imp lies is unte sted as to amb iguity. Jasmine s belief in the implied proposition, even if genuine, is untested as to memory and perception. The dangers that arose from the State s use of this question demonstrate the continued utility o f the com mon law approac h to h ears ay. V. The State contends that any error in the admission of Jasmine s question was harmless. We disagree. To be harmless, we must be convinced beyond a reasonable doubt -36- that the error in no way influenced the verdict. See Ragland v. State, 385 Md. 706, 726, 870 A.2d 60 9, 621 (20 05); Dorsey v . State, 276 Md. 638 , 659, 350 A.2d 6 65, 678 (1976). The State s remaining evidence against Stoddard was circumstantial, demonstrating principally that (1) Stoddard had access to Calen during the medically-established time frame for the fatal blow; and (2) Stoddard might have been physically abusing Calen prior to her death. The State could not exclude the five other adults who had access to Calen during the time frame, no r could it estab lish that Stodd ard was in fact responsible for Calen s earlier injuries. The State corroborated the case with the direct eviden ce of a pu rported eyew itness to the murder. The State s contention that [Jasmine] saw. She was the eyewitness. She saw what happened to Calen that day, if believed by the jury, would be powe rful eviden ce to establish Stoddard as the m urderer. Jasmine was not a competent witness, and she w as unava ilable to testify at trial. The State attempted to present her eyewitness testimony in two ways. It introduced Jasmine s mother s observations about a marked change in Jasmine s behavior after Calen s death, and elicited the utterance that is the subject of this appeal. We cannot say that the introduction of Jasmine s question is Erik going to get me did not influence the verdict. Because these words were inadmissable hearsay and prejudicial, we reverse. -37- JUDGMENT OF THE COURT OF SPECIA L APPEALS REVERSED. CASE R EMANDED TO T H AT COURT WITH INSTRUCTIONS TO REVERSE THE JUDGMENT OF THE CIRCU IT COURT FOR BALTIMORE CITY AND REMAND THE CASE TO THAT COURT FOR A NEW TRIAL. COSTS IN THIS COURT AND THE COURT OF SPECIAL APPEALS TO BE PAID BY BALTIMORE CITY. -38- In the Circu it Court for B altimore C ity Case Nos. 102196037 and 102196038 IN THE COURT OF APPEALS OF MARYLAND No. 70 September Term, 2004 ______________________________________ ERIK STODDARD v. STATE OF MARYLAND ______________________________________ Bell, C.J. Raker Wilner Cathell Harrell Battaglia Greene, JJ. ______________________________________ Conc urring O pinion by Wilne r, J., which Battaglia and Greene, JJ., join. _____________________________________ Filed: December 8, 2005 Erik Stoddard was cha rged with murdering three-year-old Calen DiRubbo. The State contended that the murder occurred in the presence of Calen s eighteen-month-old cousin, Jasmine Pritchett. Jasmine was not called as a witness; instead, to support its contention that Jasmine saw what had occurred, the State p roduced the child s m other, Jennif er Pritchett. Over objection, no longer pressed, the court allowed Jennifer to describe behavioral changes in Jasmine since the time of the murder that Jasmine had become petrified of strangers and, upon hearing a loud noise, would break out into hives. The mother said that she had not discussed the case with Jasmine but, when asked whether the child had ever asked any questions about th e matte r, Jennif er respo nded, She as ked m e if Erik was g oing to get her. Stoddard objected on both hears ay and reliability grounds a nd mov ed for a m istrial. The State gave a dual response: (1) that the remark was not hearsay because it was in the form of a question and that a question could not constitute a statement for purposes of the hearsay rule, and (2) that the remark was not being offered for its truth, to show that Stoddard was going to get the c hild, but only to sh ow the ch ild s fear of S toddard. In o rder to establish some relevance o f Jasmine s fear, the State wanted th e jury to infer, from that fear, that Jasmine had a reason to fear Stoddard and that the reason for her fear was her observation of Stoddard attacking Calen.1 The trial cou rt overruled th e hearsay obje ction with the brief comment, Ef fects on her, overruled a nd denied the m otion for mistrial. It did n ot ad dres s Sto ddard s concern about reliabi lity. 1 That purpose was made clear in the State s closing argument: She was afraid of Erik . Wh y? Because she saw. She was the eyewitness. She saw what happened to Calen that day an d she w as scare d to dea th it was going t o happ en to he r, too. The Court of Special A ppeals affirmed, holding that the remark was a non-assertive verbal utteranc e and was n ot hears ay. Stoddard v. State, 157 Md. App. 247, 850 A.2d 406 (2004). In reaching th at result, the interm ediate appe llate court concluded that, (1) with the adoption of the Maryland Rules of Evidence in 1994, this Court effectively abandoned the implied assertion rule enunciated in Wright v. Doe d. Tatham, [1837] 7 Adol. & El. 313, 112 Eng. Rep. 488 and followed in Waters v. Waters, 35 Md. 531 (1872), and (2) an assertion implied from verbal or no n-verbal conduct do es not constitute a statement for p urposes of the hearsay rule unless the actor actu ally or necessarily inten ded his or h er condu ct to constitu te such an asse rtion. This Court proposes to reject that conclusion and, with it, the predominant view of courts and com mentators th roughou t the United States, and jo in but a small handful of courts that continue to adhere to Wright s antiquated and wholly illogical view that implied assertions constitute statements for purposes of the hearsay rule even if the declarant never intended h is or her con duct to con stitute such an assertion. In our view, adherence to such a roundly discarded doctrine is both unwarranted and, in this case, and most cases, unneces sary. We agree that the repetition of Jasmine s question by her mother was inadmissib le hence our concurrence with the result but adherence to that aspect of Wright and Waters is not ne cessary to such a h olding . The child s que stion was in admissible f or two rea sons. First, it did constitute inadmissib le hear say, al thou gh for a m ore r ation al rea son t han that p roff ered by the Majority; -2- and second, Ja smine s qu estionable competence was never established. Jennifer s recounting of Jasmine s question constituted hearsay because (1) whether Jasmine a ctually intended to assert that she had observed Stoddard assault Calen, the relevance of her question depended entirely on the jury s assuming that she did, indeed, intend by it such an assertion, and (2) that necess arily assum ed asse rtion w as offe red for its truth. Of perhaps greater significance, in furtherance of the reliability prong of the objection and given Jasmine s very young age eighteen months when the event occurred and two years at time of trial the court, at the very least, should have conducted an inquiry into whether Jasmine was competent as a witness. Neither her question nor any assertion that might be implied from it was claimed to be spontaneous o r in the nature of an excited utterance. Nor was her question admissible under Maryland C ode, § 11-3 04 of the C riminal Proc edure A rticle. If the child would not have been competent to testify directly to the implied assertion I saw Erik attack Calen the assertion c annot bec ome adm issible by having he r mother rep eat it. The he arsay rule is a rule of exclusion; once outside the realm of excited or spontaneous utteran ces or statutory adm issib ility, it cannot m ake adm issible that which is otherwise inadmissible due to the incompe tence of th e declaran t. Wright and Waters The notion that conduct, verba l or non-verbal, that, on its face, does n ot assert X and may never have bee n intended by the actor to as sert X, non etheless ma y constitute an implied -3- assertion of X for purposes of the hearsay rule w as first suppo sedly declared in one of s ix opinions issued by the Exchequer Chamber in the 1837 English case, Wright v. Doe d. Tatham, [1837] 7 Ad. & El. 313, 112 Eng. Rep. 488. The case concerned the validity of the 1822 Will and 1825 Codicil made by John Marsden, which were challenged on the ground of Marsden s alleged incompetence. That issue was tried four times, was a legal cause celebre of the early nineteenth century (see Emmeline Garne tt, J OHN M ARSDEN S W ILL at 1 (Ham bledon Press 1998)), an d eventua lly ended up in th e Hou se of L ords. The case arose initially when Rear Adm iral Stan dford Tatham , a cousin and heir of Marsden, filed a caveat to the probate of the Will, within hours after Marsden s death and even before the Will and Codicil were offered for probate. Tath am c laim ed, a ltern ative ly, that Marsden was incompetent to make a Will and that the Will and Codicil were the product of undue inf luence by M arsden s stew ard, Geor ge Wrigh t, in whose hands the Will and Codicil placed most of the Estate. The case was filed in Chancery, but the issue of Marsden s competence was submitted to a jury. Trial took place in 18 30. Ninety-six witnesses testified 35 for Wright and 61 for Tatham and a great deal of correspondence to and f rom M arsden was ad mitted b earing o n his co mpete nce. The jury found the Will and Codicil to be valid. The presiding judge declared himself satisfied with the verdict, and a motion for new trial was denied by the Master of the Rolls. Tatham presented his motion then to Lord Chancellor Brougham who, having acted as -4- counsel for Tatham in the matter, requested the assistance of Lord Chief Justice of the Common Pleas Tindal and the Lord Chief Baron, both of whom opined that the motion should be den ied. See Tatham v. Wright, [1831 ] 2 Rus s. & M ylne 1. The bill was dismissed with costs.2 One of the issues raised by Tatham concerned the correspondence. Chief Justice Tindal noted that [t]he importance of this long and varied correspondence in deciding on the competence of the testator to make his will is self-evident, and that if it was the genuine correspondence of Ma rsden, no one could hesitate to declare that the man who possessed sufficient vigour and energy of mind to carry on this correspondence must be held to possess a disposing power over his own property. Id. at 23. Tatham contende d that the letters in question were actually written by Wright or someone under his tutelage, a suggestion rejected by the pa nel. Dissatisfied with the jury s v erdict and th e rejection of his motion for new trial, Tatham secretly entered upon one of the properties, executed a bogus lease, withdrew, and then, through h is lessee, Do e, filed an ac tion in ejectm ent against W right, again raising the 2 Of some interest is the court s ruling with re spect to cos ts: Not satisf ied with alleging that the testator was not of sound and disposing mind, [the bill] brought forward a pretended case of gross fraud and undue influence, most injurious to the character of the Defendant Wright; every part of that case had failed: and it had been established by the verdict of a jury, approved of by the Judge before whom the issue was tried, and ratified by two judgments of this Court, that the will, which the Plaintiff sought to impeach, was the deliberate and valid act of a testator of sound and disposing mind. Id. at 31. -5- issue of Marsden s competence as a testator.3 A great deal of documentary and testimonial evidence was offered on the issue, including a host of documents that were found among Marsden s effects upon his de ath. Amo ng those d ocumen ts were thre e letters written to Marsden decades b efore he m ade his Will, by persons who knew Marsden but who were long deceased at the time of the trial. Presumably in an effort to rebut Tatham s claim that Marsden was always incompetent, not just when he drew his 17-page Will and the subsequent Codicil, Wright offered those letters to show that the writers believed, from the nature of the letters, that Marsden was competent at the time the letters were written, from which an inference could be drawn that he was, in fact, competent, not only then, but when he later m ade his Will an d Cod icil. 3 There is no doubt that the issue tried in the first case, of Marsden s competence as a testator, was the same as that in the second. In the appeal in the second case, the cou rt observed that the only diff erences be tween the two case s were tha t, in the second case Wright was the only defendant and Tatham sued as lessor, whereas in the first, Wright was joined by three other defendants and Tatham had sued in his own right, not as lessor. Otherwise, the court noted, the first action would have been a suit between the very same parties, upon the same subject matter. . . . Wright v. Doe d. Tatham [1834] 1 Adol. & El. 3, 18-19 . A subsequent appellate panel reache d the sa me co nclusio n. Wright v. Doe d. Tatham [1837] 7 Adol. & El. 313, 314 n.(a) ( A former trial had taken place on feigned issues raising the same questio ns. ). It is clear that, under Maryland law, Tatham s lessee would be regarded as bein g in p rivity w ith Tatham and would be precluded from relitigating the issue of Marsden s competence in the ejectment action. See Walzl v. King, 113 Md. 550, 556, 77 A. 1117-19 (1910); FWB Bank v. Richman, 354 Md. 472, 731 A.2d 916 (1999); Prescott v . Coppage, 266 Md. 562, 572-73, 296 A.2d 150, 155 (1972). Had the case arisen here, it would have been dismissed p reliminarily and w ould neve r have pro duced the rulings that it did. -6- The trial judge, Baron Gurn ey, rejected the letters, but, of greater significance, he refused to admit the Will unless the sole surviving witness to it a witness hostile to Wright was called to testify. Without the Will, the judge directed a verdict for Tatham in the amount of one shilling plus costs, and two exceptions were noted one dealing with the rejection of the letters and the other complaining of Gurney s refusal to admit the Will. The appellate court announced that it was divided on the first issue but agreed that Gurney erred in excluding the Will. The judgment was reversed on that ground, without discussion of the letters, and a n ew trial a warde d. Wright v. Tatham, [1834 ] 1 Ad ol. & E l. 3. At that second trial, Baron Gurney admitted the letters, and the jury fo und for W right. That decision also was reversed, the court holding that the letters were inadmissible. At the third trial, Justice Coleridge rejected the letters, a verdict again resulted for T atham, and exceptions were noted. The six judges of the appellate panel, the Exchequer Chamber, were equally divided, which resulted in an affirmance of the judgm ent. Wright v. Tatham [1837] 7 Adol. & El. 313, 112 Eng. Rep. 4 88. Th e Hou se of L ords, on writ of error, asked for the opinion of seventeen judges, and, on the basis of those opinions, it affirmed. The implied asse rtion rule emanates mostly from the opinion rendered by Baron Parke for the Exchequer Chamber one of six rendered by the judges of that Chamber for that is the one most often quoted for the proposition that implied assertions, whether or not intende d as suc h, cons titute state ments f or purp oses of the hea rsay rule. -7- Parke observed that the basis argued fo r admitting the letters was that they were evidence of the treatm ent of the testator as a competent person by individuals acquainted with his habits and personal ch aracter, that they were more than mere statements to a third person indicating an opinion of his competence by those persons, but were acts done toward the testator by them, which would not have been done if he had been inc ompeten t, and from which, therefore a legitimate inference may, it is argued, be derived that he was so. Wright v. Doe d. Tatham, supra, 7 Adol. & El. at 383-84, 112 Eng. Rep. at 515. He noted that, although the letters would b e admissib le to show that they were sent, the con tents of the letters were not admissible as evidence of the fact to be proved upon the issue that is, the actual existence of the qualities which the testator is, in those letters, by implication, stated to possess. Id. at 383, 112 Eng. Rep. at 515. For that purpose, he concluded, the letters are mere hearsay evidence, statements of the writers, not on oath, of the truth of the matter in question, with this addition, that they have acted upon the statements on the faith of their being true, by their sending the letters to the testator. Id. at 386-87, 112 Eng. Rep. at 515. He rejected the n otion that the a ct of sending the letters overcame the hearsay problem.4 4 Inconsistently with his challenge to the three letters, Tatham offered testim ony, which was admitted, that Marsden was treated as a child by his servants and that in his youth he was called Silly Jack and Silly Marsden. A witness was allowed to testify that he had seen boys throwing dirt at him and shouting, There goes crazy Marsden. The court seemed to find no fa ult with those express or implied assertions, offered to show that Marsden was incom petent a nd thus constitu ting no less hea rsay than t he three letters. -8- As noted, the case then proceeded on writ of error to the House of Lords, which requested the opinions of seventeen judges, among whom were Baron Parke, Baron G urne y, and Justice Coleridge, who thus ended up reviewing their own decisions. Nineteenth Century English law perm itted that practice ; Maryland la w obvio usly does not. In his opinion to the Hous e of Lo rds, Par ke esse ntially repe ated w hat he h ad said for the E xcheq uer Ch ambe r. In Waters v. Waters, 35 Md. 531 (1872), the Court of Appeals cited Wright in particular Baron Parke s opinion for the Exchequer Chamber with approval and held, as the Wright court had, that letters written to a testator that made no direct assertion of any kind regarding the testator s co mpetenc e were ina dmissible to p rove the co mpetence of the testator. The Court held generally that the acts and sayings of third persons with reference to [the testa tor], even thou gh th ey ma y be construed into an expression on their part of an opinion or belief touching his mental capacity, cannot be admitted in evidence; unless connected with some act on his part which indicates his competency or incompetency. Id. at 544. The Court added: [L]etters of third persons addressed to a party, are not of themselves any evidence of the mental capacity of the p arty to whom they are addressed; and are not admissible for that purpose, unless it be shown that they came to him, and that he exercised some act o f judgment or understanding upon them; and then they are admissible merely as inducement, or as connected with the acts of the party, whose competency or mental capacity is in dispute, and which the letters may serve to elucidate or explain . It is what he has done or said upon the occasion, and not w hat has be en done o r said by oth ers, that is pertinent to the question in issue. -9- Id. (Emphasis add ed). Although that statement is much more indicative of a ruling on relevance than on the hearsay rule indee d, the word hearsay is ne ver mentio ned in the o pinion the case, probably because o f its reliance on Wright, has come to be regarded as a hearsay case, as establishing that statements or conduct offered as an implied assertion of some different fact not plain from the statemen t or condu ct itself is hearsay if offered for the truth of the implied assertion. The hearsay nature of the Court s holding, like that in Wright, would seem to result only from this analysis: (1) The letters themselves their content say nothing about the competence of the testator. They do not assert that the testator was either competent or incompetent or that he had any mental acuity or defect fro m which compete nce or inco mpetenc e could be directly inferred, and thus have no direct relevance to the issue of the testator s competence. As the contents of the letters were not offered, directly, for their truth, the hearsay rule would not be applicable; the only ground of objection to admissibility of the contents of the letters would be relev ance. (2) The only conceivable re levance of the letters would come not from the truth of the matters asserted in them but rather from an implied assertion drawn from a chain of inferences arising from the fact that such letters were written to the testator. That c hain consists of the following links: -10- (a) An assumption that the letters conveyed a message that would be meaningless to the testator unless he was competent to understand the message; (b) From that assumption, an inference (first inference) could be drawn that the authors of the letters believed that the testator was competent to understand the message; (c) From that first inference, a second inference could be drawn that, if the authors believed that the testator was competent to unde rstand th e mess age, he was, in fact, competent to understand the message; (d) From the second inference , the ultimate (th ird) inferenc e could be drawn that, if the testator was competent to understand that message, he was c ompeten t as well to make a W ill. There is, of course, some play in each of these inferences; on e does not necessarily follow from the one before it. The first inference, for example belief in the recipient s competence assume s the good faith of the a uthor, that he would not be inclined to taunt or tease the recipient by sending a messag e that he kn ew the rec ipient wou ld not likely understand. As to the second inference, there is always the prospect that the author may have overestimated the recip ient s ab ility to unde rstand th e mess age, e.g., delivering to most anyone over 40 a 30-page manual on how to set up, program, and operate nearly any electronic device. Th e third infere nce is perhaps the most tenuo us, especially on the facts in Wright, where the letters were sent between 23 and 36 years before the Will was drawn (and 26 to 39 years befo re the Cod icil). The valid ity of these infere nces wo uld seem to -11- depend, to a large extent, o n what is known about the declarant and his relationship to the recipient. The less that is known (or sometimes the more that is known), the weaker become the inference s, and, beca use the ultim ate result rests on a chain of the inferences, the weakness factor multiplies as one proceeds along the chain.5 To the extent the re was a leg itimate hearsay issue in Waters (or in Wright), it arose only from the ultimate inference an implied assertion by an out-of-court declarant, the reliability of which depende d on the cre dibility of that dec larant, that the te stator was competent to make a Will. As noted, the Waters Court did not go into a ny hearsay analysis or expound any view regarding implied assertions. It did not address any question of whether an implied assertion sought to be admitted for its truth could arise from conduct or words that were not intended by the declarant to assert the fact sought to be proved. Whether the declarant intended to assert anything regarding the testator s competence was simply not considered. The Court merely held that a third party s assumed belief or assertion, express or implied, that a testator was compete nt was no t admissible to prove such competence unless the testator took some action in response or with regard to the assertion, in which event the assertion would be admissible solely to explain the testator s reaction. Analyzed in this way, it would seem that any hearsay issue that hinges on an implied assertion would arise only if the declarant intended what he said or did to constitute such an 5 If, for exam ple, the reliability of e ach infere nce is only 70% (and the reliability of the final inference is arguably far less than that), the reliability of the ultimate inference would be only 34.3%. -12- assertion or if the trier of fact would be required, in considering the evidence, to assume such an intent, whether or not it was alleged or shown. If there was no such expressed or necessarily assumed intent if, in the Wright and Waters context, the declarant did not intend his act or words to convey anything regarding the testator s competence and there was no basis for a trier of f act to assum e such an intent the act done or words uttered would be inadmissib le not b ecau se they constituted an implied assertion but because they would be irrelevant; they would not make the fact of the testator s competence either more or less likel y. The act o r words w ould be rele vant only if they were intended by the actor, or assumed to be intended by the actor, as an a ssertion with regard to the testator s competence, and only in that situ ation , if th e ass ertio n we re of fere d for its tr uth, w ould the h ears ay rule be app licable. Unf ortunate ly, Wright v. Doe and Waters v. Waters have not been construed as drawing this distinction and instead have been interpreted as holding verbal and non-verbal conduct that c onceiva bly could be regarded a s an implied assertion to be one, without regard to whether the actor intended his or her conduct to constitute such an assertion. If the relevant inference could be drawn from the conduct, it did not matter whether the actor intended that such an inference be drawn, or, indeed, whether the actor actually held a completely opposite view. Evidence of the conduct was inadmissible because the imputed inference constituted, by legal fiat, an out-of-court assertion offered for its truth. -13- That rigid and illogical rule held sway in the 19th Century, but, as with other formalized rules of evidence restricting the scope of information available to judges and juries, it began to undergo challenge in the 20 th Cen tury. 6 As noted by Dean M ason Lad d in his article, A Modern Code of Evidence, appended to the American Law Institute s M ODEL C ODE OF E VIDENCE (1942), [e]arlier fallacies have been exposed, rules of evidence have been critically examined and are being tested upon the basis of logic, psychology, and trial experience. The realistic function of evidence in the solution of controversies of fact, rather than principles in the abstract, is becoming the basis of judging evidence rules. Id. at 334. That change was noted as well by Justice Sutherland in Funk v. United States, 290 U.S. 371, 381, 54 S. Ct. 212, 215, 78 L. Ed. 369, 375 (1933): since experience is a continuous process, 6 Professor Maguire, no fan of Wright, observed that the English court missed an almost miraculously appointed opportunity for authoritative determination of the claim that where there is no intentional communication of the proposition at issue, where that proposition is come at o nly by inference, there can be no hearsay. John M. M aguire, The Hearsay System: Around and Through the Thicket, 14 Vand. L. R ev. 741, 752 (1960 -61). The missed opportunity he attributes to the legal culture in England at the time: The 1830's, during which the case w as presented, fell in an era of somewhat pompous professional satisfaction as to the technical English rules of proof at common law. Consider, for instance, that Mr. Justice Coleridge in the instant litigation saw fit to decry before the House of Lords the fallacy, that, whatever is morally convincing, and w hatever reasonable beings would form their ju dgments and act upon, may be submitted to a jury. [citation omitted], Liberalized reception of evidence, by definition or otherwise, was scarcely the order of the day. Id. at 753. (Emphasis add ed). -14- it follows that a rule of evidence at one time thought necessary to the ascertainm ent of truth should yield to the experience of a succeeding generation whenever that experience has clearly de monst rated the fallacy or unwis dom o f the old rule. An early inroad on the notion that an ac tor s intent is irrelevant in determining whether out-of-court conduct may be treated as an implied assertion came with the development of the Model Rules of Evidence by the American Law Institute in 1942. In § 501, the Model Code defined hearsay evidence as evidence of a hearsay statement or of a hearsay dec laration. Bo th of those terms were also def ined and both requ ired that there be a statem ent. Section 501(1) defined a statement as including both conduct found by the judge to have been intended by the person making the statement to operate as an assertion by him and c onduct of which ev idence is offered for a purpose requiring an assumption that it was so intended. That precept was carried forth in the definition of hearsay statem ent in § 501(2), that a hearsay statement was a sta tement of which ev idence is offered as tending to prove the truth of the m atter intended to be asserted or assumed to be so intended . . . (Emp hasis ad ded). That approach made the intent on the part of the actor the linchpin: the o ut-of-court conduct would not constitute an implied assertion unless either the court found that the actor intended such an assertion or the evidence was offered for a purpose requiring an assumption that it was so inte nded. In the absence o f such an intent, the evid ence ma y be inadmiss ible beca use o f a la ck of rele vance, b ut no t bec ause it wa s hea rsay. -15- Although the development and publication of the Mo del Code served to focus attention on the shortcomings of Wright v. Tatham, the Code itself was not adopted in any of the States, so the criticism of the English decision remained largely in the commentary, where it aboun ded. See, for example, John Mag uire, The Hearsay System: Around and Through the Thicket, supra, 14 Vand. L. Rev. 741; Ted Finman, Implied Assertions as Hearsay: Some Criticisms of the Uniform Rules of Evidence, 14 Stan. L. Rev. 682 (1961-62 ); Judson Falkno r, The Hear-Say Rule as a See-Do Rule: Evidence of Conduct, 33 Rocky Mtn. L . Rev. 1 33 (19 60-61 ). In 1961, the U nited States Ju dicial Conference approved a proposal to develop a comprehensive Federal C ode of E vidence, an d it was that effort that ultimately led to the rejection by most of th e Federal a nd State courts of the conclusion espoused by Baron Parke in Wright. Pursuant to its authority under the Federal Rules Enabling Act (28 U.S.C. § 2072) to prescribe ru les of evide nce for the U.S. Distric t Courts, the Supreme Court appointed a special A dvisory C omm ittee on R ules of Evide nce to d raft suc h a Co de. The Advisory Committee dealt with the implied assertion issue through the definition of hearsay, and, in particular, throug h the de finition of stat emen t. 7 An early draft of FRE 7 The definition of statement is critical to the Federal Ru le on hearsay. The term hea rsay is defined in FRE 801(c) as a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted . (Emphasis added). Declarant is defined as a person who m akes a s tateme nt. FRE 801(b). If the evidence does not c onstitute a sta tement, it cannot be hearsay and the source of the eviden ce is not a de clarant. -16- 801(a) stated that conduct of a person, either verbal or non-verbal, is not a statement unless intended by him as an assertion. See Minutes of Fourteenth M eeting of Adviso ry Committee, May 23-25, 1968 at 30. That articulation made ab solutely clear that no conduct was to be regarded a s a statemen t, and thus as hearsay, unless intended, by the person whose conduct it was, to be an assertion. In order to state that proposition in the affirmative, rather than the negative, however, the draft was amended to define statement as (1) an oral or written assertion or (2) non verbal c onduc t of a pe rson if, but only if, it is intended by him as an assertion. (Em phasis a dded). Id. at 33. That language was consistent with, though not identical to, the then-recently adopted California Evidence Code, which defined statement as (a) oral or written verbal expression or (b) nonverbal conduct o f a person intended b y him as a substitute for oral or written verbal expression. CAL. E VID . C ODE § 225 (1967). The change in language provoked questions from Advisory Committee members as to whether limiting prop osed Ru le 801(a)(2 ) to nonverbal conduct might imply that section (a)(1) was limited to verbal expressions. The Reporter responded that oral statements had to be considered as conduct, too, and, after some further discussion, the revised language was approv ed. See Minutes of Fourteenth Meeting of Advis ory Com mittee, supra, at 32. That textual language survived further review by the Advisory Committee, the Standing Com mittee o n Rule s of Pra ctice an d Proc edure, th e Supr eme C ourt, an d Con gress. Perhaps to clarify that the revision of the language from the early draft was not intended to treat verbal conduct differently from non-verbal conduct for purposes of the -17- hearsay rule, the Ad visory Com mittee attache d a lengthy C ommittee N ote to the text of FRE 801. The opening paragraph of that Comm ittee Note states: The definition of statement assumes importance because the term is used in the definition of he arsay in subdivision (c). The effect of the definition of statement is to exclude from the operation of the hearsay rule all evidence of conduct, verbal or nonverb al, not intended as an assertion. The key to the definition is that nothing is an assertion unless intended to be one. (Emphasis add ed). It is clear from the remainder of the Advisory Committee Note that, in addressing implied assertions assertions based on conduct the Committee conceived that such implied assertions could, indeed, emanate, at least in part, from words u ttered, but it concluded (as ultimately did the Supreme Court and Congress) that, even if such conduct could be regarded as assertive in nature, evidence of it should not be excluded under the hearsay rule. The full text of the Committee Note needs to be considered to understand the rationale: It can scarce ly be doubted that an assertion m ade in wo rds is intended by the declarant to be an assertion. Hence verbal assertions readily fall into the category of statement. Whether nonverbal conduct should be regarded as a statement for purposes of definin g hearsay req uires further consideratio n. Some nonverbal conduct, such as the act of pointing to identify a suspect in a lineup, is clearly the equivalent of words, assertive in nature, and to be regarded as a statement. Other nonverbal conduct, however, 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 conditio n may be inf erred. This s equence is, arguably, in -18- effect an assertion of the existence of the condition and hence properly includable within the hearsay concept. See Morgan, Hearsay Dange rs and the A pplication of the Hears ay Concep t, 62 Harv. L. Rev. 177, 214, 217 (1948), an d the elabo ration in Finman, Implied Assertions as Hearsay: Some Criticisms of the Uniform Rules of Evidence, 14 Stan . L. Rev. 682 (196 2). Admitted ly evidence of this chara cter is untested with respe ct to the percep tion, mem ory, and narratio n (or their equivalents) of the actor, but the Advisory Comm ittee 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 nonverbal than with assertive verbal conduct. The situatio ns giving rise to the nonverbal con duct are such as virtually to eliminate questions of sincerity. Motivation, the nature of the conduct, and the presence or absence of reliance will bear heavily upon the weight to be given the evidence. Falknor, The Hear-Say Rule as a See-Do Rule: Evidence of Conduct, 33 Rocky Mt. L. Rev. 133 (1 961). Similar considerations govern nonassertive 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 subdiv ision (c). 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 wo rded as to p lace the bu rden upo n the party claiming that the intention existed; ambiguous and doubtful cases will be resolved against him and in favor of admissibility. The determination involves no greater difficulty than many other preliminary questions o f fact. M aguire, Th e Hearsa y System: Around and Through the Thicket, 14 Vand. L. Rev. 741, 765767 (1961). For similar approaches, see Un iform Ru le 62(1); Ca lifornia Evidence Code §§ 225, 1200; Kansas Code of Civil Procedure § 60-4 59(a); N ew Jer sey Evid ence R ule 62( 1). -19- (Emphasis add ed). The adoption of FRE 801 marked a sea change in the perception of implied assertions. The great majority of courts that have considered the issue and most of the recognized commentators now agree that a person s conduct, whether verbal or non-verbal, will not constitute a statement for purposes of the hearsay rule unless the person intended his or her condu ct to asse rt the ma tter soug ht to be a dmitted for its tru th. Turning first to the commentators, some of whom were involved in the development of the Federal Rules of Evidence, Saltzburg, Martin, and Capra note that [c]onduct is not hearsay mer ely because it is offered to prove the truth of the belief that generated the conduct. Rather, under Rule 801, conduct can only be h earsay if the de clarant intended by the conduct to communicate information. 4 Stephen A. Saltzburg, Michael M. Martin, and Daniel J. Capra , T HE F EDERAL R ULES OF E VIDENCE M ANUAL § 801.02[1][c] at 801-14 (8 th ed. 2002). T hey point out: The reasons for excluding non-assertive conduct from the hearsay rule are persu asive. A principal reason for excluding hearsay is because the veracity of the declarant cannot be tested by cross-examination. In the case of non-assertive acts, the author by definition does not intend to make an assertion, meaning that the risk of insincerity is substantially diminished. The actor is at least not trying to lie. Moreover, non-assertive conduct is usually more reliable than the ordina ry out-of-court statement, because by conduct the declarant has risked action on the correctness of his belief h e has put his mone y where his mouth is. Id. at 801-15. -20- The fifth, and current, edition of McCormick, after raising the question of whether the letters written to Marsde n, if offered as evidence of his competence, should be regarded as hear say, notes that the basic answer under the Federal Rules and contemporary judicial analysis is that an out-of-court assertion is not hearsay if offered as proof of something other than the matter a sserted. The theory is that questions of sincerity are generally reduced when assertive conduct is offered as a basis for inferring something other than the matter asserted. (quoting from Advisory Committee Note). 2 John W. Strong, Kenneth S. Broun, George E. Dix, Edw ard J. Imwinkelried, D .H. Kaye, Robert P. Mosteller, and E.F. Roberts, M CC ORMICK ON E VIDENCE 111-12 (5 th ed. 1999). Although acknowledging that not all of the alleged hearsay dangers have been entirely eliminated, the authors point out that the contemporary resolution o f the issues in volved in im plied assertion s ref lect u ltima tely a compromise between theory and the need for a relatively simple and workab le definition in situations where hearsay dangers are generally reduced. Id. at 113. Mueller and Kirkpatrick purport to see some limited lingering value in Wright s analysis of the so-called two-step inference (belief from conduct, fact from belief), but they acknowledge that FRE 801 rejects the broad proposition endorsed by Baron Parke and suggest that, arguab ly, it would be wiser to f orget Wright than continue to discuss it. 4 Christopher B. M ueller an d Laird C. Kirk patrick, F EDERAL E VIDENCE § 378 at 59-60 (2 nd ed. 1994). -21- Weinstein, who was a member of the Advisory Committee, though noting that words and actions may convey meaning even though they were not consciously intended as assertio ns, points out th at [a]ccord ing to the Advisory Committee, the key to the definition is that nothing is an assertion unless it is intended to be. 5 Joseph M. McLaughlin, Jack B. Weinstein, and Marg aret A. B erger, W EINSTEIN S F EDERAL E VIDENCE § 801.10[2][c] at 80110 (2 nd ed. 2005). David Binder also confirms that the broad concept of hearsay emanating from Wright is inconsistent with the definition adopted in the Federal Rules and would encompass much of what is now considered circumstantial evidence, and there would be no end to what might be considered hearsay. Da vid F. Binder, H EARSAY H ANDBOOK § 1.10 at 1-17 (4 th ed. 2001). Some academics have challenged the wisdom of the decision by the Advisory Committee, the Supreme C ourt, and Congress to exclude implied assertions from the definition of hearsay and would like to return to their perception of the common law rule. In 1997, a proposal was made by Professor Paul Rice and his staff at A merican U niversity Washington College o f Law to achieve tha t result by rewriting FRE 801(a) to define statemen t as all speech and writing, as well as any action that comm unicate s a mes sage. See The Evidence Project, 171 F.R.D . 330, 362, 5 96-97 (19 97). It does not appear that Professor Rice s proposal has receive d any serio us atten tion by the Federa l Judicia ry. The Supreme Court seems quite content with the Rules as they are, as it has rejected occasional calls by Rice an d others fo r it to appoint a new Advisory Committee to review those rules. -22- The Majority sug gests that the A dvisory Com mittee No te has been the source of disagreement in the courts and among scholars, and posits that some Federal courts construe FRE 801(a) in accord with the Note, while other courts do not. It cites only cases from the Third C ircuit Court of Appeals and Lyle v. Koehler, 720 F.2d 426 (6 th Cir. 1983) from th e Sixth Circuit, a s evide ncing th e courts that do n ot. The suggestion that there is anything app roaching a n equal div ision amon g the courts is misleading. Apart from the fact that both the Third an d Sixth Circuit courts may have altered their view since the cases relied on b y the M ajority, 8 all of the othe r Federal ap pellate courts that have considered the matter the Second, Fourth, Fifth, Eighth, Ninth, Tenth, Eleventh, and D.C. Circuits have held unintended assertions implied from verbal or nonverbal conduct not to constitute statements for purposes of the h earsay rul e. See Headley v. Tilghman, 53 F.3d 472, 477 (2 nd Cir. 1995) , cert. denied, 516 U.S. 887, 116 S. Ct. 207, 133 L. Ed. 2d 140 (1995); United States v. Oguns, 921 F.2d 442, 44 8-49 (2 nd Cir. 1990) ; United States v. Giraldo, 822 F.2d 205, 212-13 (2 nd Cir. 198 7), cert. denied, 484 U.S. 969, 108 S. Ct. 466, 98 L. Ed.2d 405 (1987); United Sta tes v. Lis, 120 F.3d 28 (4 th Cir. 1997) ; United 8 See Lexington Insurance Co. v. Western Pennsylvania Hospital, 423 F.3d 318, 330 (3 Cir. 2005) (following Advisory Committee Note that nothing is an assertion unless intended to be on e ). See also United States v. Short, 790 F.2d 464 (6 th Cir. 1986) (testimony by social worker regarding behavior o f three-year-old child while playing with a natomica lly correct doll admiss ible as non- hearsay to support inference that child had knowledge of oral sex); also United States v. Dandy, 998 F.2d 134 4 (6 th Cir. 199 3), cert. denied, 510 U.S. 1163, 114 S. Ct. 1188 , 127 L. Ed . 2d 538 (1 994); United States v. Wright, 343 F.3d 849, 865-66 (6 th Cir. 200 3), cert. denied, 541 U.S. 990, 124 S. Ct. 2016, 158 L . Ed. 2d 496 (200 4). rd -23- States v. Jefferson, 187 F.3d 868, 883 (7 th Cir. 2004) ; United States v. Weeks, 919 F.2d 248, 251-52 (5 th Cir. 199 0), cert. denied, 499 U.S. 954, 111 S. Ct. 1430, 113 L. Ed. 2d 481 (1991) ( According to the drafters of the Federal Rules of Evidence, the key to the definition of statement is that nothing is an assertion unless intended to be one. ); United States v. Lewis, 902 F.2d 1176, 1179 (5 th Cir. 1990) ( Rule 80 1, through its definition o f statemen t, forecloses appellant s argument by removing implied assertions from the coverage of the hearsay rule ); United States v. Singer, 687 F.2d 1135, 1147 (8 th Cir. 1982) (en banc); United States v. Perez, 658 F.2d 654, 659 (9 th Cir. 1981); United States v. Jackson, 88 F.3d 845, 847-48 (10th Cir. 1996) ; United States v. Summers, 414 F.3d 1287 (10th Cir. 2005) (recognizing Rule, but finding that assertion was intended); United States v. Groce, 682 F.2d 1359, 1364 (11th Cir. 1982) ; United States v. Long, 905 F.2d 1572 , 1579 (D.C. Cir. 199 0), cert. denied, 498 U.S. 948, 111 S. Ct. 365, 1 12 L. Ed .2d 328 (1 990); United States v. Zenni, 492 F. Su pp. 464 (E .D.Ky. 1980 ); Gaw v. C.I.R., 70 T.C.M. (CC H) 1196 (199 5). That is true with respect to the State courts as well. The Majority cites cases from Iowa, Texas, and Virginia, but fails to mention either that the Texas ruling is based on a statute or contrary rulings consistent with the Federal approach in Arizona, California, Colorado, Connecticut, the District of Columbia, Florida, Indiana, Michigan, Missouri, New Mexico, Tennessee, Washington, Wisco nsin, an d Wyom ing. See State v. Ca rrillo, 750 P.2d 878, 882 (Ariz. App. 1 987), modified on other grounds, 750 P.2d 883 (Ariz . 1988); People v. Morgan, 125 Cal. A pp.4th 935 (Cal. App . 2005); People v . Griffin, 985 P.2d 15, 17-18 -24- (Col. App. 1998) (ac knowle dging the ru le but holdin g that evide nce in que stion did no t fall within it); State v. Esposito , 613 A.2d 242, 251 (Conn. 1 992); Little v. United States, 613 A.2d 880, 881 -82 (D.C . 1992); Burgess v. United States, 608 A.2d 733 , 739 (D.C. 1992 ); Hernandez v. State, 863 S o.2d 48 4 (Fla. A pp. 200 4), review denied, 874 So.2d 1191 (Fla. 2004); Bustamante v. State, 557 N.E.2d 1313 (Ind. 1990); People v. Jones, 579 N.W.2d 82, 93 (Mich. App. 1998) ( On Reh . Aft. Remand), review of hearsay issue denied, 587 N.W.2d 637 (Mich. 19 99) ( [W ]e should n ot be surprise d that the vast majority of cases decided under the Federal Rules of Evidence and their state counterparts that have addressed the issue have rejected the im plied assertion theory ); State v. Williams, 118 S.W.3d 308, 311-12 (Mo. App. 20 03); Jim v. Budd, 760 P.2d 7 82 (N .M. A pp. 198 7), cert. denied, 739 P.2d 509 (N.M. 1987); State v. Ortiz-Burciaga, 993 P.2d 96, 101 (N.M . Ct. App. 1 999); State v. Land, 34 S.W.3d 516 (Tenn. Crim. App. 2000) (recognizing rule but holding evidence intended as an assertion); State v. Collins, 886 P.2d 243 (Wash. App. 1995) , review denied, 894 P.2d 565 (Wash. 1995); State v. Ku tz, 671 N.W.2d 660, 675-76 (Wis. App. 2003) , review denied, 675 N.W.2d 804 (W is. 2004); Guerra v. State, 897 P.2d 447, 45 9-62 (Wyo. 1995). Before turning to Maryland, it may be of interest to note that Baron Parke s views expressed in Wright the spawner of the doctrine so sound ly rejected in current American law have no t been follo wed in some of the British Commonwealth countries and, if it had a free hand to do so, would probably have been overruled by the House of Lords in England. The holding in Wright came before the House of Lords in Regina v. Kearley [1992] 2 A.C. -25- 228. The police raided the home of the defendant and found some drugs inside, but not enough clearly to indicate that they were fo r distribution rath er than pers onal use. W hile at the defendant s home, the police answered a number of telephone calls in which the callers asked to speak with the defendant and to be supplied with drugs by him. The trial court allowed the officers to testify about those calls, and the defendant was convicted of possession with intent to supply. The Court of Appeals affirmed, and the question was certified to the House of Lords whether evidence may be adduced at a trial of words spoken . . . by a person not called as a witness, for the purpose not of establishing the truth of any fact narrated by the words, but of inviting the jury to draw an inference from the fact that the words were spoken (namely that the defendant was a supplier of drugs). Id. at 230.9 The five judges assigned to hear the case recognized the precedent of Wright, and split three-to-two to entertain the appeal and reverse. The opinions of the judges, in this instance, are more significant than the effect of their decision, as at least three of the five the two dissenters and one in the majority concluded that Wright was not consistent with mo dern practice and ought to be at least rec onside red, if no t overru led. The only stumbling block, for at least one in the majority, was a 1965 decision of the House of Lords , Myers v. Director of Public Prosecutions [1965] A .C. 1001; [ 1964] 3 W .L.R. 145; [ 1964] 2 A ll E.R. 881. H.L. 9 The fact that the question was cast in the singular one call caused some problem for the judges on the issue of relevance. Several believed that, although one call would have been irrelevant, sev eral calls did have relevance on the issue of whether the drugs possessed by the de fenda nt were for distr ibution . -26- (E.) in which the House of Lords determined (also by a three-to-two vote) that any further development of or changes to the hearsay rule should be made by Parliament and not judicially. That precluded the House, acting as a judicial body, from overruling Wright. The dissenters in Kearley were direct in their criticism of Wright. Lord G riffiths commented: Unless compelled to do so by authority I should be most unwilling to hold that such evidence should be withheld from the jury. In my v iew the criminal law of evidence should be developed along common sense lines readily compreh ensible to the men and women who comprise the jury and bear the responsibility for the major decisions in criminal c ases. I believe that most laymen if told that the criminal law of evidence forbade them even to consider such evidence as we are debating in this appeal w ould reply Then the law is an ass. Id. at 236-37. After analyzing a number of cases from Commonw ealth countries and the decision of the Privy Council in Ratten v. The Queen [1972] A.C. 378, Lord Griffiths announced that he would be prepared to answer the certified questio n in the a ffirma tive. Id. at 242.10 Lord 10 In Ratten, the defend ant, charged w ith shooting and killing his wife, claimed that the shotgu n disch arged w hile he w as clean ing it. A telephone operator w as allowed to testify that, shortly before the time of the shooting, she received a call from the defendant s home and that the call was from a woman who, sobbing and hysterical, said, Get me the police, please and gave her address but hung up before the operator could contact the police. Lord Wilberforce, for the Privy Council, held that the contents of the call were not hearsay. Recounting that case, Lord Griffiths concluded that the words spoken were relevant to show that the wife in a hysterical state wanted the police from which the jury could draw the inference that her dea th shortly thereafterwards from gunsh ot wou nds w as not a n accid ent. He added, It seems to me inevitable that the jury must also have drawn the inference that (contin ued...) -27- Browne-Wilkinson agreed. Indeed, after con sidering the relevant part of B aron Parke s opinion, he concluded, in my judgment the opening words of that passage show that Parke B. would have adopted the same view as the Privy Council in Ratten v. The Queen . . . if the sending of a letter and its contents had itself been a circumstantial fact from which an inference (other than an inference as to the writer s opinion) could be drawn. Regina v. Kearley, supra, 2 A.C . at 285. Browne-Wilkinson said that he can find no reason why the evidence of multiple calls should not have been admitted and that he would have dismissed the appeal. Id. at 287. He urged P arliament to review the he arsay rule, as [i]n cases such as the present it hampers effective prosecution by excluding evidence which your Lordships all agree is highly probative and, since it comes from the unprompted actions of the callers, is very cre ditwor thy. As in most cases, it is the views of the majority, not the dissent, that are most significant. Lord Bridge of Harwich, one of the three in the majority, after recounting the demise of Wright in the United States, stated that he fully appreciate[d] the cogency of the reasons advanced in favour of a limitation or exception to the operation of the hea rsay rule which would allow th e adm ission o f implie d asserti ons of the kind in ques tion, but concluded that, in light of Myers v. Director of Public Prosecutions, supra [1965] A.C. 1001, it was not open to your Lordships to modify judicially the common law rule as expounded 10 (...continued) she was terrified and wanted the police because she believed her husband might shoot her. But this possib le infere nce w as not su fficien t to exclu de the e videnc e as hea rsay. -28- in Wright v. Doe d. Tatham . . . . Id. at 249. H oweve r strong the tem ptation to legis late judicially in favor of what is seen as a common sense result and however tardy Parliament may appear to be in reforming an area of law which is seen to be in ne ed of ra dical ref orm, he add ed, it wa s for Pa rliamen t to mak e the ch ange. Id. at 251. Only Lord Ackner and Lord O liver of Aylm erton seem ed actually to ag ree with Parke s view in Wright, although L ord Ack ner did no te that if a convincing case can be made out for relaxing the hearsay rule s application to the type of situation which has arisen in this appeal, the n it must be achieved by legislation. Id. at 258. A fair analysis of the five opinions more than suggests tha t, but for the g overning mandate that any overru ling of Wright would have to be done by Parliament, Lord Bridge of Harwick would have joined the two dissenters and Wright would have ceased to be the law in England. The debate over how to treat implied assertions arises mostly from the large universe of conduct th at conceiv ably could produce an implied assertion, the debate often focusing on whether the conduct in question w as, itself, assertive. In some situations, the answer is easy the nodding or shaking of the hea d in respon se to a question, p ointing a fin ger at a suspect, showing fou r fingers when ask ed how m any shots were fired. That kind of conduct is routinely held to be assertive because, absent some extraordinary circumstance, the court can reliably assume that it was intended by the actor to be an assertion the functional equivalent of an oral re sponse tha t would cle arly constitute a statement for hearsay purposes. -29- Other conduct is m ore ambig uous. Co urts, including the trial court in this case, have wrestled over wheth er a question can constitute an assertion, whether there is any truth or falsity that can be found in a question, and have come to different conclusions. Judges and commentators have raised and discussed dozens of hypotheticals whether the action of a sea captain who, after inspecting a ship, allows his family to travel on the ship constitutes an implied assertion that the ship is sea wor thy, and what, if any, assertion may be implied from the act of a su spect, o r a non- suspec t, in fleein g durin g the pe ndenc y of an in vestiga tion. The notion of implied assertions has become entwined with the state of mind exception to the hearsay rule, with the broader concept of circumstantial evidence from which inferences can be drawn, and with the equally broad issue of relevance, and the ultimate ruling on admissibility can depend on the analytical method chosen by the court to address the issue. All of this weighed heavily on this Court s Standing Committee on Rules of Practice and Procedure when drafting the Maryland Rules of Evidence, and particularly Rule 5-801. Rule 5-801(a), defining statement for purposes of the hearsay rules, is identical to FRE 801. The Court s Rules Committee was, of course, well aware of the Federal Rule and the Advisory Committee Note. The Reporter s Note attached to Rule 5-801 in the C ommittee s 125 th Report to the Court noted that §§ (a) and (b) of the Rule tracked their Federal counte rparts. The Reporter s Note added that the Committee considered whether to define assertion but conclu ded that this w as best left to c ase law development. Given the -30- differing views regarding the kinds of verbal or non-verbal conduct that might constitute an assertion, the Reporter s Note recited the Committee s concern that the form of a particular statement not be determinative of whether it is an assertion for purposes of this Rule and observed that [t]his is a particular problem with questions and is a point upon which the decisions are not harmonious. In that regard, the Comm ittee suggeste d, and the C ourt, in adopting the Committee s draft of Rule 5-801(a), approved, the following Committee Note: This Rule d oes no t attemp t to defin e asser tion, a concept best left to development in the case law. The fact that proffered evidence is in the form of a question or something other than a narrative statement, howev er, does no t necessarily prec lude its being an assertion. Nor does the Rule attempt to define when an assertion, such as a verbal act, is offered for something other than its tru th. A fair inference may be drawn from the Committee Note that the Court did not intend, merely by adopting the language of FRE 801(a), to make any determination as to the continued vitality of Waters v. Waters. Compare Committee N otes to Ru le 5-607 ( T his Rule eliminates the comm on law vouch er rule ) and R ule 5-702 ( This Rule is not intended to overrule Reed v. Sta te, 283 Md. 374 (1978) and other cases adopting the principles enunciated in Frye v. United States, 293 F. 1013 (D .C. Cir. 192 3) ) in wh ich the Co urt did indicate an intended effect, or non-effect, of the Rule on current common law. Th e Court was aware of the Federal courts view of the effect of FR E 801(a), how ever, and was aw are as well that approximately 38 States had, by then, adopted codes of evidence similar or identical to the Federal rules. The Court understood, because the point was stressed in the -31- presentation of the Committee s Report, that one of the important reasons to adopt a Code of Evidence modeled closely on the Federal Rules of Evidence was to have a national Federal and State case law research base to guide the future development and interpretation of Marylan d s evid ence la w. In that light, it makes no sense to reject the ov erwhelm ingly predom inant view of both the Federal and State courts the national case law base that the doctrine emanating from Wright v. Doe, flawed from its inception, has no present force and that the effect of the definition of statement is to exclude from the operation of the hearsay rule all evidence, verbal or nonverbal, not intended as an assertion. To hold on to the rigid formulation of one English judge esp oused in an 1837 case that, in Maryland, w ould neve r have pro ceeded to the point that it did, and thereby put, or keep, Maryland out of step with most of the rest of the country on a p oint of law that should b e uniform , is neither logic al nor practical. The validity of what is attributed to Wright has been fairly debated by courts an d commen tators over many decades, and a broad consensus verdict has been returned. This Court should not just acce pt, but em brace, th at verdic t. Waters should be overruled.11 11 In an attempt to defend its indefensible position, the Court complains that we have faile[d] to address the policy considerations the majority opinio n has adv anced (f ootnote 7) and that ou r position w ould be dif ficult to apply in practice (footnote 8). That is not the case. If the Court would read again the cases and com mentary cited th roughou t this Concurring Opinion, it would find that the overwhelming majority view is that the policy considerations advanced by the majority are simply not shared by most other authorities. As to practicality, the rest of the country has had no problem implementing the modern approach. -32- Legitima te Reason s Why Th e Testimo ny Was In admissib le As noted, there are two adequate reasons why Jasmine s question, sought to be admitted through the testimony of her mother, was inadmissib le: it did constitute hearsay, for which no exception was available; and it emanated from a declarant who likely would have been incompetent as a witness. Rejection of Wright and Waters does not necessarily exclude implied assertions from the operation of the hearsay rule. It simply means that a court may not treat as a statemen t, for purposes of the hearsay rule, an alleged assertion that rests solely on an implication from verbal or non-verbal conduct unless the actor either intended that such an assertion arise from his or her conduct or that such an intent is necessary to the relevance of the evidence. If the court finds from the circum stances that th e actor intend ed his or he r out-of-co urt condu ct to imply the proffered assertion or that the relevance of the evidence hinges on an assumption of that intent, the implied assertion does constitute a sta tement, and if that statement is offered for its truth, it constitutes hearsay. That, indeed, is precisely the case here. Jasmine s question, whether Erik will get her, has no direct relevance to whether Stoddard murdered Calen, and it was not offered as having such releva nce. It was offered, in conjunction with the evidence of the behavioral changes, to show that Jasmine was afra id that Stoddard might get her, but the relevance of even that inference is, at best, dubious. The true, and only relevant, purpose for admitting the question was to sh ow that there -33- was a basis for the child s fear, and th at the basis was her observation of what Stoddard had done to Calen. The prosecutor made that clear. In this circumstance, however, given that Jennifer had not discussed the m atter with the child, that purpose w ould necessarily require the jury to assume that Jasmine had not only, in fact, observed that occurrence but that her fearful question was intended, even if implicitly, to convey that fact to her mother. If that intent was n ot to be a ssume d, the qu estion h ad no re levanc e. Because the assertive nature of the question was mo st likely intended b y the child but, in any event, had to be assumed for the eviden ce to be relev ant, it did constitute a statement that was being off ered for its truth and therefo re cons tituted h earsay. As it fell w ithin no excep tion, it wa s inadmissible he arsa y. Maryland Rule 5 -601 cr eates a p resum ption th at every p erson, in cluding a child, is competent to be a w itness. M aryland C ode, § 9-103 of the C ts. & Jud. P roc. Article supplem ents the Rule w ith the statutory pro vision that, in a c riminal trial, the a ge of a ch ild may not be the reason for precluding a child from testifying. Although the Rule and the statute preclude a categorical finding of incompetence based on age, they do not remove the discretion of the trial cou rt, upon a ch allenge, to determine whether a particular child witness is, in fact , com pete nt to testif y. In Perry v. Sta te, 381 Md. 138, 148-49, 848 A.2d 631, 637 (2004), we observed that the test for determining the competence of a child witness is not age but rather whether the witness has intelligen ce enoug h to make it worthwhile to hear him [or her] at all and whether he [or she] feels a duty to tell the truth. (quoting from Brandau v. Webster, 39 Md. App. -34- 99, 104, 382 A.2d 1103, 1106 (1978)). Quoting then from Jones v. State, 68 Md. App. 162, 166-67, 510 A.2d 1091, 1094 (1986), we noted that [t]he trial court must determine the child s capacity to observe, u nderstand , recall, and relate happenin gs while conscious of a duty to speak the truth. We adopted as the test for a child s competency the factors se t forth in 2 Ba rbara E. B ergm an an d Na ncy H ollander, W HARTON S C RIMINAL E VIDENCE § 7:16 (15th ed. 1998): [I]ntelligence; an understanding of the obligation to tell the truth; knowledge of the nature of an oath; ability at the time of the occurrence to accurately perceive it; ability to remember the occurrence; capacity to actively communicate the memories; and ability to understand and respond to simple questions about the occurrence. It is not necessary that the child be able to define an oath. The child need only understand that, upon taking an oath, the child has pro mised to tell the tru th. When a facially valid challenge is presented, the court must mak e som e inq uiry, sufficient to allow it to determine whether the witn ess, inclu ding a c hild wi tness, is c ompe tent. Perry, at 146-47, 848 A.2d at 636, citing United States v. Odom, 736 F.2d 104 (4 th Cir. 1984) and United States v. Gerry, 515 F.2d 130 (2d Cir . 1975) , cert. denied, 423 U.S. 832, 96 S. Ct. 54, 46 L. Ed.2d 50 (1975). Although there is no pre-fixed m inimum a ge for com petency, the issu e will necessarily arise with respect to infants and toddlers, whose capacity to meet the test may be inherently suspect. We are aware of no case in which a two-year-old child has been found competent to testify as to positive assertions that would constitute statements for purposes of the hearsay rule, and, indeed, there is considera ble psychological evidence that children -35- of such tender age lack the ab ility to disting uish meaning fully betw een truth and lies . See Jean Piaget, T HE M ORAL J UDGMENT OF THE C HILD (1965); Lawrence Kohlberg & Elliot Turiel, Moral Development and Moral Education, in P SYCHOLOGY AND E DUCATIONAL P RACTICE (G. Le sser ed., 1 971); J. G . Smeta na & J . L. Bra eges, The Development of Toddler s Moral a nd Con ventional J udgme nts, 36 Merrill-Palmer Q uarterly 329 (1990); Laura E. Ber k, C HILD D EVELOPMENT 475 (4 th ed. 1997); Roger V. Burton & Abigail F. Strichartz, Children on the Stand: The Obligation to Speak th e Truth, 12 D EVELOPMENTAL & B EHAVIOR AL P EDIATRICS 121, 123 (1991 ). Had Jasmine been called as a witness to testify to what she may have observed, her competence would surely have been challenged, and the trial co urt would have been required to conduc t a reasonab le inquiry in orde r to determine the issue. We certainly can express a healthy skepticism whethe r the two-year-old child wou ld have been perm itted to testify under oath to events she witnessed when she was eighteen months old. Notwithstanding S toddard s objection to the reliability of the hearsay statement attributed to Jasmine, no such inquiry was made. The question is th en raised w hether, if Jasmine herself would have been precluded from testifying as to what she observed, an out-of-court implied assertion that she saw Stoddard harm Calen can be admitted through the testimony of her mother. Does the repetition of the statement by the mother give it any greater reliability? The answer has to be no . -36- It is important to note that we are not dealing here with an excited utterance or other spontaneous statement, the reliability and admissibility of which rests upon its s pontane ity. The incompetence of the declarant in that situation has not been regarded as an impedim ent. See Moore v. State, 26 Md. App. 556, 561-62, 338 A.2d 344, 347 (1 975), cert. denied, 276 Md. 747 (197 5) (excited u tterance of th ree-and-a-h alf year old adm itted); Jackson v. State, 31 Md. App. 332, 356 A.2d 29 9 (1976) (excited utterance of four-year-old admitted); Johnson v. State, 63 Md. App. 485, 492 A.2d 1343 (1985 ), cert. denied, 304 Md. 298, 498 A.2d 1185 (1985) (excited utterance of insa ne pers on adm itted); A nnotatio n, Admissib ility of testimony regarding spontaneous declarations made by one incompetent to testify at trial, 15 A.L.R.4th 10 43 (1982). 12 The general rule is that out-of-court statements m ay not be admitted under a hearsay exception unless the declarant w ould have been com petent to testify dire ctly with respe ct to the statement. T he rationale f or that rule, w hich would seem to be self-evident, was articulated in an 18 81 En glish ca se, Dysart Peerage Case [1881] L.R. 6 App. Cas. 489, 504, where Lord B lackburn c oncluded that it is impos sible that if a pe rson said something, and could not himself, if alive, have been permitted to give testimony to prove it, he can, by dying, render that statement admissible. Wigmore elaborated: 12 Nor would Jasmine s statement qualify under Maryland Code, § 11-304 of the Criminal Procedure Article, as she was not asserted to be a child victim and the statement was not mad e to a person listed in § 11-30 4(c). -37- The hearsay rule is m erely an additional test or safeguard to be applied to testimonial evidence otherwise admissible. The admission of hea rsay statem ents, by way of exception to the rule, therefore p resuppos es that the asse rtor possessed the qualifications of a witness in regard to knowledge and the like. These qualific ations a re fund amen tal as rule s of rele vancy. 5 W IGMORE, E VIDENCE (Chad bourn e rev. 19 74) § 1 428, p. 2 55 (em phasis in origina l). McCormick agrees: As a general proposition, the com petency stand ards apply to hearsay declarants as well as in-court witnesses. If a person would be incompetent to testify on the stand, his hearsay statement is usually inadmissible. 1 M CC ORMICK ON E VIDENCE, supra, § 61, n.3 at 266- 67. See also Cliffo rd S. Fis hman , 4 J ONES ON E VIDENCE, § 28:6 at 617 (7 th ed. 2003) ( a witness may testify only if he or she is com petent, and th e same rule applies with regard to a hearsay declarant ). Most courts h ave also expres sed tha t view. See State v. Ryan, 691 P .2d 197 , 203 (W ash. 1984) ( th e declarant s competency is a precondition to admission of his hea rsay statements as are other testimonial qua lifications ); In re Basilio T., 4 Cal. App.4th 155, 166 (Cal. App. 1992) ( we apply the general rule that if a declarant would have been disqualified to take the stand by reason of infancy or insa nity his extrajudicial statements must also be inad missible ), supersed ed by statute as recognized by In re Lucero L., 22 Cal. 4 th 1227, 1239-42 (2000); South Carolina Dept. of Social Services v. Doe, 355 S.E.2d 543, 548 (S.C. App. 1987) ( it is impossible that a child who is incompetent to make statements as a witness can, by absenting himself from court, render those statements admissible. Generally, if the declarant was not competent at the time of making the statemen t, it may not be admitted into evidence th rough hearsay repetition ). -38- We would reverse the judgment of the Court of Special Appeals on the ground that Jennifer s repetition of Jasmine s question to her was inadmissible, for the reasons noted in this opinion. W e would not, however, cling to the antiquated and largely discarded view of Baron Parke reg arding imp lied assertions , but, on that issue, would join the rest of the country in holding that an alleged assertion implied solely from verbal or non-verbal conduct does not constitute a statement for purposes of the hearsay rule unless either the declarant intended to make such an assertion or the admission of the evidence requires an assumption of such a n intent. Judge Battaglia and Judge Greene join in this concurring opinion. -39-
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