Acts or Conduct
• [T]he Rules explicitly provide that nonverbal conduct can be a “statement.”
• “Statement” means a person’s oral assertion, written assertion, or nonverbal conduct if the person intended it as an assertion.
Evid. R. 801(a)(emphasis added)
• Conduct as hearsay involves an implied assertion by the out-of-court asserter. It means that the conduct is the result of a thought, and through such conduct, that thought is being used as proof of the matter impliedly asserted.
• An example of nonverbal conduct that constitutes an assertion is a witness's identification of a perpetrator by pointing.