Zenni was arrested under suspicion of illegal bookmaking
The police had gone to Zenni's house and answered his
phone. A number of unknown people called and tried to place bets with
The Trial Court convicted Zenni of bookmaking. Zenni
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
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