The twilight zone of hearsay and nonhearsay has provoked searching analyses by eminent authorities in the field of evidence. Although these contributions have doubtless been of inestimable value, exerting a profound influence in the solution of problems dealing with acts and utterances within this area of proof, there is much to be desired in the way of clarity as reflected by innumerable opinions of the courts. No fatuous notion is here entertained that within the limits of this discussion order will be rescued from chaos, or for that matter that an appreciable contribution will be made toward that end. Nevertheless, it is hoped that this article will stimulate additional interest in the solution of some of the problems that have been raised.
No purpose would be served in referring to the historical background and development of the doctrines and rules involved, which have been painstakingly and masterfully treated by Wigmore, Morgan, and others. The approach made here to the questions concerning acts and utterances with relation to this area of proof emphasizes the actualities of the situations presented, somewhat irrespective of the ratio decidendi of the particular cases in which they occur. Although, as hereinafter observed, nonverbal and verbal acts are closely related, sharing in common certain fundamental attributes, a dichotomy will be made between the two groups of acts. In some instances words are less ambiguous than acts; in other instances acts are more persuasive than words. Moreover, the distinction between nonverbal and verbal acts finds justification from the decisions of the courts and as the ensuing discussion of cases indicates, is not merely arbitrary.
The Twilight Zone of Hearsay,
9 Vanderbilt Law Review
Available at: https://scholarship.law.vanderbilt.edu/vlr/vol9/iss3/2