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At common law, there was substantial authority that the silence of an individual or group of individuals is hearsay, as an implied assertion. See Professor Morgan’s famous article, “Hearsay Dangers and the Application of the Hearsay Concept, “ 62 Harv.L.Rev. 177, 213 (1948). It appears to be the intent of the limitation of the hearsay definition under Fed.R.Evid, 801(a)(2) to non-verbal conduct “intended by the declarant as an assertion” to do away with the notion that implied assertions are within the hearsay prohibition. See McCormick on Evidence Section 250 at 743 (1984). See also 4 J. Weinstein and M. Berger, Weinstein’s Evidence 801 (a)[01] at p. 801-61 (1990). See Wilson v. Clancy, 747 F. Supp. 1154, 1158 (D. Md. 1990)(offer of affidavit in support of summary judgment in which silence of testator on critical fact was noted; held: silence is not within the 'realm' of hearsay, 'at least where there is no showing of intentional silence on particular occasion intended as assertion when silence was kept.')
The drafters of the Federal Rules agreed with the criticisms of the common law rule that implied assertions should be treated as hearsay and expressly abolished it. See Weinstein, P ...
