The Corn Crib Case

Plaintiff Hanson owned and leased a farm to Schrik. Under the lease, Schrik was to pay Hanson 2/5 of the corn grown in return for the use of the land. In other words, Schrik was a sharecropper. To obtain money for seed and fertilizer, Schrik gave a mortgage to defendant bank on his share of the crops. The bottom fell out of the corn market, and Schrik's tenant's mortgaged property was sold at auction by the bank with his permission. At this sale a crib of corn containing 393 bushels was sold by the bank to defendant Johnson. Hanson contended that this corn was his share of the crop and thus that it had been converted by defendants.

In an effort to prove that the corn was part of his share, Hanson testified, over the objection of hearsay and self-serving, that when Schrik was about through husking corn he was on the farm and the tenant pointed out the corn in question and said: "Mr. Hanson, here is your corn for this year; this double crib here and this single crib here is your share for this year's corn; this belongs to you, Mr. Hanson." A bystander was called and against the same objection testified to having heard the talk in substantially the same language.

(1) Is plaintiff's proposed testimony hearsay? If it is, should it be admitted anyhow? If it is not, should it nonetheless be excluded?

(2) What if plaintiff called another bystander to testify that after the tenant had husked the corn, tenant said to the second bystander, out of the presence of Hanson, "This double crib here and this single crib here is Mr. Hanson's share for this year's corn; this belongs to him." Would this testimony be hearsay?

NOTE: WHEN CONDUCT PRESENTS HEARSAY PROBLEMS

As the Assault on Massachusetts Avenue problem demonstrates, hearsay problems arise when conduct is treated as an assertion. However, assume that the conduct is nonassertive. What hearsay problem does nonassertive conduct present?

In relying upon nonassertive conduct, the chain of inferences involves a trip through the mind of a nontestifying actor and conceptually presents hearsay problems. But Rule 801(a)(2) defines "statement" in a way that excludes such nonassertive conduct. Hence, nonassertive conduct is conceptually, but not legally, hearsay. Problems arise because it is sometimes difficult to grasp what is and what is not an "assertion"; conduct often has both communicative and noncommunicative purposes. Under Rule 801(a), conduct is not an assertion unless it is intended to communicate something. The Advisory Committee's Note to Rule 801(a) states that the burden is on the party claiming that an intention to assert existed; "ambiguous and doubtful cases will be resolved ... in favor of admissibility."

Yet even when the conduct is clearly nonassertive, and thus not hearsay under the Federal Rules, the factfinder may still be relying on the testimonial capacities of the out-of-court actor. Further, "inferential assertions"--assertions about something other than the point for which the statement is offered--may be admissible as nonhearsay under the Federal Rules approach despite their dependence on the testimonial capacities of the out-of-court declarant. More than ever, to find one's way through this thicket, one must understand the purpose for which the statement is offered and the intention of the assertion or reason for the conduct.