United States v. Zenni
492 F.Supp. 464 (1980)

  • Zenni was arrested under suspicion of illegal bookmaking activities.
    • The police had gone to Zenni’s house and answered his phone.  A number of unknown people called and tried to place bets with Zenni.
  • The Trial Court convicted Zenni of bookmaking.  Zenni appealed.
    • Zenni argued that the evidence about the phone calls was inadmissible because it was hearsay.
  • The Appellate Court affirmed.
    • The Appellate Court looked to the common law hearsay rule, which says that hearsay only applies to “evidence of out of court statements offered for the purpose of proving that the facts are as asserted in the statement.”
      • Basically, the callers weren’t making statements that were used to prove facts, so it didn’t matter if what they said was true or not.  It was only important that they made the statements.
        • “Put $2 on Paul Revere to win in the 5th” just shows that he unknown person was trying to place a bet.  That’s different than having an unknown person call and say, “Zenni is a bookie.”
    • The Appellate Court looked to FRE 801 which states that the only statements that are subject to the hearsay rule are those which are “intended to be an assertion.”
      • Basically, as long as the conduct/statements are nonassertive, they can be admitted into evidence under FRE 801.
        • For example, a statement such as, “Phil killed some guy” is assertive because the person making the statement is trying to convey his belief.
        • Conversely, a person opening an umbrella is trying to stay dry, they are not trying to tell people that it is raining.
        • So, the statement about Phil is inadmissible, but the fact it was raining would be allowed.
      • In this case, the Appellate Court found that the statements made by the callers were nonassertive, and could be admitted into evidence.