Stoddard v. State

887 A.2d 564, 389 Md. 681, 2005 Md. LEXIS 731

• Court: Court of Appeals of Maryland
• Decided: December 8, 2005
• Docket: 70 September Term, 2004
• Status: Published

Opinions

RAKER, J.

Erik Stoddard was convicted of second degree murder and child abuse resulting in death. The primary question we must answer in this case is whether the trial court erred in admitting testimony recounting an out-of-court utterance allegedly made by a non-testifying eighteen month old child to the effect of “is Erik going to get me?” The State offered this utterance as evidence that the child had witnessed Stoddard commit the murder. The case requires us to consider the evidentiary question of whether the unintended implications of speech — a particular class of “implied assertions” — may be hearsay. Both the trial court and the Court of Special Appeals ruled that this evidence was not hearsay. We disagree and reverse the judgments.

I.

Three-year-old Calen DiRubbo died on the evening of June 15, 2002. The Grand Jury for Baltimore City indicted Stoddard for the offenses of first degree murder, second degree murder, and child abuse resulting in death. He was convicted by a jury of second degree murder and child abuse resulting in death and acquitted of first degree murder. The court sentenced him to a term of thirty years incarceration for each offense, to be served consecutively.

At trial, Deputy Chief Medical Examiner Mary Ripple testified that she had performed an autopsy on Calen, and had determined the cause of death to be multiple blunt force injuries. Foremost among these injuries was a severed bowel, an injury typically associated with the infliction of “a tremendous amount of force” to the abdomen. Based on laboratory results, Dr. Ripple placed the time of Calen’s death between 8:30 and 10:30 p.m., and placed the time of the fatal injury between four and sixteen hours prior to death. On cross-examination, Dr. Ripple admitted that this range was only an estimate, and that the trauma conceivably could have occurred up to twenty-four hours prior to death.

According to this medical opinion, Calen received the fatal blow between 4:00 a.m. and 6:30 p.m. on June 15th, or, at the very earliest, sometime after 8:30 p.m. on June 14th. The evidence suggested that, for at least part of this period, Stoddard was the only adult supervising Calen, her older brother Nicholas Jr., and her cousin Jasmine Pritchett, then eighteen months of age.

The central issue in this case arose during the testimony of Jasmine Pritchett’s mother Jennifer Pritchett. The prosecutor asked Jennifer Pritchett, “Since that day, since Saturday June 15th have you noticed any behavioral changes in Jasmine?” Defense counsel objected, and the prosecutor explained to the court:

“I have to prove time frame and I have to prove when the violence occurred, and it obviously happened when this little girl was there. If she’s fine when she goes home and nothing happens, then there is a good defense argument that nothing happened during that time period.”

The court replied, “You can get the mother to testify as to what the behavior was before and after ... I don’t even want you to ask her if she’s discussed it with her. You can ask her about the differences in the behavior.”

Despite this ruling by the court, the following exchange then took place:

“[STATE’S ATTORNEY:] Ma'am, have you noticed any behavioral changes in Jasmine since Saturday June 15th?

[JENNIFER PRITCHETT:] Yes, I have.

[STATE’S ATTORNEY:] And would you describe just the behavioral changes for the jury, please?

[JENNIFER PRITCHETT:] Jasmine has become—

THE COURT: Keep your voice up.

LJENNIFER PRITCHETT:] Jasmine is very petrified of any strangers introduced to her or if there is any form of loud noise, yelling, anything, she has gotten so upset that she’s broken out in hives. She has nightmares and screaming fits.

[STATE’S ATTORNEY:] Have you ever seen any of these behaviors prior to June 15th?

[JENNIFER PRITCHETT:] No.

[STATE’S ATTORNEY:] Has she ever — you have never discussed this case with her, have you?

[JENNIFER PRITCHETT:] No.

[DEFENSE COUNSEL]: Object.

THE COURT: Overruled.

[STATE’S ATTORNEY:] And—

[JENNIFER PRITCHETT:] No, I have not.

[STATE’S ATTORNEY:] And has she ever — has she ever asked you any questions about it?

[JENNIFER PRITCHETT:] She asked me if Erik was going to—

[DEFENSE COUNSEL]: Object.

THE COURT: No, I’m going to overrule it.

[STATE’S ATTORNEY:] Go ahead, ma'am.

[JENNIFER PRITCHETT:] She asked me if Erik was going to get her.”

The following colloquy then took place at the bench:

“[DEFENSE COUNSEL]: Your Honor, not only is that hearsay, but its reliability is tenuous at best. This is far beyond what I believe was the Court’s discretion. I’m going to move for a mistrial at this juncture.

[STATE’S ATTORNEY:] May I be heard?

THE COURT: I’ll hear you.

[STATE’S ATTORNEY:] First off, it’s not hearsay. It’s a question. The child asked a question and by simply in terms of its form, it can’t be hearsay. Secondly, it’s — It’s not— hearsay isn’t a question. Hearsay is a statement offered for its truth of the matter asserted. I am not trying to argue that Erik is going to get her. What it does show is the child’s fear—

THE COURT: [Ejffects on her, overruled.

[STATE’S ATTORNEY:] Exactly.

THE COURT: Denied.

[DEFENSE COUNSEL]: Thank you. And my motion for mistrial, Your Honor?

THE COURT: Denied.”

During the State’s closing argument, the prosecutor referred to this evidence as follows:

“And I’m sure you’re thinking, ‘It’s too bad there wasn’t an eyewitness. It’s a real pity someone didn’t see him do this.

* * *

But you know something? There was an eyewitness in this case. Unfortunately, she’s just too young to come into court and testify, and that eyewitness was Jasmine, Jennifer’s child. Do you remember when Jennifer testified? She said that starting on June 15th, her little girl, Jasmine, had an abrupt personality change. All of a sudden, out of the blue, little Jasmine started to have nightmares. She started to have behavioral problems and she started to ask her mother, ‘Is Erik going to get me?’ ‘Is Erik going to get me?’

Now, you heard Jennifer testify. Jasmine was two years old. There was no way she discussed the events of Calen’s murder with Jasmine. You know they’re not going to discuss this in front of a two-year-old child and she’s not going to tell Jasmine anything about this, but Jasmine asked her, ‘Is Erik going to get me?’ Why? She was afraid of Erik. She didn’t ask, ‘Is Nick going to get me?’ She didn’t ask, ‘Is Mark going to get me?’ She wasn’t afraid of them. She was afraid of Erik. Why? Because she saw. She was the eyewitness. She saw what happened to Calen that day and she was scared to death it was going to happen to her, too.”

Stoddard was convicted and noted a timely appeal to the Court of Special Appeals. Before that court, Stoddard argued, inter alia, that Jasmine Pritchett’s out-of-court question, “Is Erik going to get me,” was hearsay when offered to prove the truth of its “implied assertion” that Jasmine was afraid of Erik Stoddard. The State argued that Jasmine’s question was not hearsay because it was simply a request for information, spoken without the intent to “assert” anything, and hence not an “assertion” for purposes of Md. Rule 5-801(a). Alternatively, the State argued that even if Jasmine’s question contained an implied assertion, that assertion was “Eric is going to get me,” and her words were not offered to prove that Eric was in fact going to “get” Jasmine, but rather as circumstantial evidence of her state of mind. The State also argued that any error in admitting the evidence was harmless.

The Court of Special Appeals affirmed. Stoddard v. State, 157 Md.App. 247, 850 A.2d 406 (2004). Tracing the history of the implied assertion doctrine from the noted English case of Wright v. Doe d. Tatham, 112 Eng. Rep. 488 (Exch. Ch. 1837) and 47 Rev. Rep. 136 (H.L.1838), the Court of Special Appeals held that Jasmine’s question is a “non-assertive verbal utterance,” and is not hearsay. Id. at 279, 850 A.2d at 424.

We granted Stoddard’s petition for a writ of certiorari to consider the following question:

“Did the Court of Special Appeals, purporting to overrule this Court’s longstanding precedent and drastically narrowing the scope of Maryland’s hearsay rule so as to remove virtually all implied assertions from the definition of hearsay, err in holding that an out-of-court statement by a non-testifying eighteen-month-old child in which the child implied that she was afraid of Petitioner because she saw him beat the victim was not an implied assertion under Maryland Rule 5-801?”

Stoddard v. State, 383 Md. 211, 857 A.2d 1129 (2004).

II.

Before this Court, Stoddard argues that Maryland has retained, and should retain, the common law view of implied assertions as expressed in Wright v. Tatham, at least as applied to words rather than nonverbal conduct. He argues that Jasmine’s question was offered for the truth of a matter impliedly asserted — namely, that Jasmine was afraid of Stoddard because she had seen Stoddard assault Calen — and thus inadmissible hearsay under the Wright v. Tatham approach.

The State argues that the evidence was not hearsay under Md. Rule 5-801. First, the State maintains that Rule 5-801 rejected the holding of Wright v. Tatum and that, since the adoption of the Rule, that case no longer defines an assertion for purposes of hearsay in Maryland. Specifically, the State argues that the implications of an utterance now constitute assertions only if the declarant intended to communicate those implications. It is most unlikely that Jasmine intended to communicate any implied message through her question, the State continues, and therefore neither the question nor any implication of the question qualifies as an assertion. Finally, the State contends that any error was harmless beyond a reasonable doubt.

This case presents one facet of the classic “implied assertion” hearsay puzzle. We must decide whether out-of-court words are hearsay when offered to prove the truth of a factual proposition communicated unintentionally by the declarant.

In Maryland, the admission of evidence is committed ordinarily to the sound discretion of the trial judge. See Merzbacher v. State, 346 Md. 391, 404, 697 A.2d 432, 439 (1997). Hearsay is different. Under Md. Rule 5-802, “[ejxcept as otherwise provided by these rules or permitted by applicable constitutional provisions or statutes, hearsay is not admissible.” In other words, the judge has no discretion to admit hearsay unless it falls within a constitutional, statutory or rule exception.

Maryland Rule 5-801 (c) defines “hearsay” as “a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” The threshold questions when a hearsay objection is raised are (1) whether the declaration at issue is a “statement,” and (2) whether it is offered for the truth of the matter asserted. If the declaration is not a statement, or if it is not offered for the truth of the matter asserted, it is not hearsay and it will not be excluded under the hearsay rule.

“Statement” is defined by Md. Rule 5-801(a) as “(1) an oral or written assertion or (2) nonverbal conduct of a person, if it is intended by the person as an assertion.” The Rule does not define “asserted” or “assertion.” The Committee note to Rule 5-801 explains as follows:

“This Rule does not attempt to define ‘assertion,’ a concept best left to development in the case law. The fact that proffered evidence is in the form of a question or something other than a narrative statement, however, does not necessarily preclude its being an assertion. The Rule also does not attempt to define when an assertion, such as a verbal act, is offered for something other than its truth.”

Much verbal evidence may be sorted into hearsay and non-hearsay without too searching an inquiry into the definitions at issue. In a simpler case, Jasmine would have said “I saw Erik hit Calen,” and these words would be hearsay if offered through Jennifer Pritchett to prove that Jasmine had in fact seen Erik hit Calen. Or, had the words “is Erik going to get me” been offered through Jennifer to prove that Jasmine was alive, or knew how to speak English, or could speak at all at the time she spoke them, they would be non-hearsay.

In the instant case, the utterances of Jasmine were not offered for the “truth” of the words “Is Erik going to get me?” Nor was Jasmine’s mere act of speaking the words relevant in and of itself. Rather, the State offered the words as evidence of a fact the State sought to prove, i.e., that Jasmine had witnessed Erik assault Calen DiRubbo. The words in and of themselves contain no information about an assault or about someone named Calen. The implied assertion doctrine arises in this case because Jasmine’s question is relevant only in that, by asking it, Jasmine may have revealed, by implication, a belief that she had witnessed Erik assaulting Calen. The question before us is whether these words are hearsay when offered to prove the truth of that belief.

Contrary to the State’s contention, the words are not relevant if offered merely to prove that Jasmine was afraid of Stoddard. Jasmine’s fear of Stoddard is irrelevant unless it stems from a belief that she had seen Stoddard assault Calen. Although it is conceivable that Jasmine’s fear, taken together with her presence during the relevant time frame, was circumstantial evidence that Jasmine witnessed Stoddard assault Calen,¹ this conceptualization is a distinction without a difference. Jasmine’s fear of Stoddard is relevant only if it is rational, %.e., only if it stems from a real-world condition or event. To rationally fear Erik Stoddard is to believe the proposition “I have a reason to fear Erik Stoddard.” Jasmine’s belief in this proposition is relevant only if the “reason” at issue is her having witnessed Erik assaulting Calen. Thus, in offering Jasmine’s fear as evidence, the State implicitly would be offering Jasmine’s belief in the proposition “I have a reason to fear Erik Stoddard and that reason is that I saw him assault Calen.”

III.

A. Wright v. Tatham and the Implied Assertions Doctrine

The implied assertions doctrine focuses on the implications or inferences contained within or drawn from an utterance, as distinguished from the declaration’s literal contents. The evidentiary treatment of implied assertions has been the subject of legal debate and controversy for many years, and has been addressed often since the adoption of the Federal Rules of Evidence. Courts around the country are split as to how such evidence should be treated.

The starting point for a discussion of the implied assertion doctrine is the English case of Wright v. Doe d. Tatham, 112 Eng. Rep. 488 (Exch. Ch. 1837) and 47 Rev. Rep. 136 (H.L. 1838). The case involved a will and the competency of the testator. The decedent Marsden had left his estate to his steward Wright. Marsden’s heir at law, Admiral Tatham, challenged the will on grounds of testamentary incapacity. In defense of the will, before the Court of King’s Bench, Wright sought to introduce several letters that Marsden had received from various correspondents. One letter concerned a legal dispute, three concerned business or politics, one thanked Marsden for having appointed the writer to a curateship, and one described a cousin’s voyage to America. Wright, 112 Eng. Rep. 490-92. Wright did not seek to prove the truth of any explicit factual statement within the letters. Wright argued that the letters were composed in such a way as to indicate that their writers believed Marsden sane and of normal intelligence. From the writers’ belief in Marsden’s competence, Wright argued, one could infer that Marsden was competent. The letters were excluded as hearsay. On appeal in the Exchequer Chamber, Baron Parke explained as follows:

“[Pjroof of a particular fact ... implying a statement or opinion of a third party on the matter in issue, is inadmissable in all cases where such a statement or opinion not on oath would be of itself inadmissable; and, therefore, in this case the letters which are offered only to prove the competence of the testator, that is the truth of the implied statements therein contained, were properly rejected, as the mere statement or opinion of the writer would certainly have been inadmissable.”

Id. at 516-17.

In reaching his conclusion, Baron Parke introduced the oft-quoted discussion of a sea captain, who after examining his ship carefully, left on an ocean voyage with his family aboard. According to Baron Parke, the captain’s conduct would constitute hearsay if offered to prove that the ship had been seaworthy. Id. at 516.

“Baron Parke used the illustration to show that such nonverbal conduct would nevertheless constitute hearsay because its value as evidence depended on the belief of the actor. This illustration was important in the court’s analysis because the main problem sought to be avoided by the rule against hearsay — an inability to cross-examine the declarant — is the same whether or not the assertion is implied from a verbal statement or implied from nonverbal conduct. Thus, assertions that are relevant only as implying a statement or opinion of the absent declarant on the matter at issue constitute hearsay in the same way the actual statement or opinion of the absent declarant would be inadmissible hearsay.”

State v. Dullard, 668 N.W.2d 585, 591 (Iowa 2008) (citations omitted).

For our purposes, Baron Parke’s reasoning, and the common-law view, may be expressed as follows: (1) An out-of-court statement is hearsay when offered to establish the truth of a proposition expressed therein; (2) A letter stating “I believe Marsden to be competent” would be hearsay if offered to prove that Marsden was competent; (3) These letters — of which the tone and content imply a belief in Marsden’s competence — are being offered as the functional equivalents of letters directly professing a belief in Marsden’s competence; (4) Thus, as offered, these letters express the proposition that Marsden is competent; and (5) Therefore, these letters are hearsay if offered to prove Marsden’s competence. Stated more generally, the doctrine holds that where a declarant’s out-of-court words imply a belief in the truth of X, such words are hearsay if offered to prove that X is true.

In its original Wright v. Tatham form, the doctrine did not inquire into the declarant’s intent — beliefs communicated accidentally by implication are as much “implied assertions” as beliefs expressed purposefully in an indirect manner. As evidenced by the “sea captain” hypothetical, the doctrine also did not distinguish between words and non-verbal conduct.

B. Federal Rule of Evidence 801(a) and Its Advisory Committee Note

Perhaps the most significant development in the American judicial treatment of implied assertions was the 1978 adoption of the Federal Rules of Evidence, and the subsequent adoption by numerous states — including this State — of substantially similar rules The drafters of the Federal Rules apparently agreed with commentators’ criticisms of the common law rule that implied assertions should be treated as hearsay. They expressly abolished the implied assertions doctrine with respect to non-verbal conduct not intended by the actor as a communication. As to words, the drafters were more equivocal while the Advisory Committee note to Fed.R.Evid. 801(a) states that “nothing is an assertion unless intended to be one.”

Fed.R.Evid. 801(c) defines “hearsay” as “a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” Fed.R.Evid. 801(a) defines “statement” as “(1) an oral or written assertion or (2) nonverbal conduct of a person, if it is intended by the person as an assertion.”

As to non-verbal conduct, the Rule injects unequivocally an intent requirement into the common-law implied assertion doctrine. Non-verbal conduct is not a “statement” under the Rule — and thus cannot be hearsay — unless the actor intended the conduct to be an assertion. A definition of “assertion” is not necessary to reach this conclusion; part two of the rule contains the word “intended” explicitly.

The part of the Rule governing speech and writing does not contain the word “intended.” Rather, words qualify as a “statement” under the Rule if they constitute “an oral or written assertion.” The question of whether the Rule incorporates an intent requirement with respect to words depends upon whether “assertion,” standing alone, denotes an intentional communication.

Although the federal Rule does not define “assertion,” the Advisory Committee note to the Rule states that “nothing is an assertion unless intended to be one.” 56 F.R.D. 183, 293 (1972). The Advisory Committee’s view with respect to words appears to be as follows: If the declarant intended to communicate the factual proposition which the words are offered to prove as true, then the words are hearsay. If the declarant did not intend to communicate that proposition, the words are not hearsay.

The federal Advisory Committee note has been the source of disagreement in the courts and among scholars. Some federal courts construe Fed.R.Evid. 801(a) in accord with the Advisory Committee note. See, e.g., United States v. Long, 905 F.2d 1572, 1579-80 (D.C.Cir.1990) (citing Advisory Committee note in holding that telephone conversation testified to by police officer was not hearsay where the caller inquired about drug transaction because no assertion was intended by caller); United States v. Lewis, 902 F.2d 1176, 1179 (5th Cir.1990) (same); United States v. Perez, 658 F.2d 654, 659 (9th Cir.1981) (citing Advisory Committee note in holding use of defendant’s name on telephone non-hearsay when offered to prove defendant was on the line; declarant impliedly believed defendant was on the line but did not intend to assert that fact); United States v. Zenni, 492 F.Supp. 464, 469 (E.D.Ky. 1980) (citing Advisory Committee in ruling that telephone instructions to place bets were non-hearsay when offered to prove defendant was a bookmaker because callers did not intend to assert that defendant was a bookmaker when placing their bets).

Other courts have interpreted the Rule with a different result. See, e.g., United States v. Palma-Ruedas, 121 F.3d 841, 857 (3d Cir.1997), rev’d on other grounds, 526 U.S. 275, 119 S.Ct. 1239, 143 L.Ed.2d 388 (1999) (holding statement “nice to meet you” hearsay when offered to prove truth of implication that declarant was meeting listener for the first time); United States v. Reynolds, 715 F.2d 99, 104 (3d Cir. 1983) (holding phrase “I didn’t tell them anything about you” hearsay when offered to prove truth of implication that defendant was participant in crime); Lyle v. Koehler, 720 F.2d 426, 432-33 (6th Cir.1983) (holding letters detailing request for recipient to give false alibi testimony hearsay when offered to prove truth of implication that declarant and co-conspirator defendant were guilty).

C. The Task of Defining “Assertion” Left to the Courts in Maryland

In the testamentary capacity case of Waters v. Waters, 35 Md. 531 (1872), this Court considered whether certain letters were admissible to show “the manner in which the testator was treated, in regard to matters of business ... by one well acquainted with him,” in order to establish the letter-writer’s opinions “in regard to the sanity of the testator, and his competency to transact business.” Id. at 543. In excluding the letters, the Court adopted the rule laid down in Wright v. Tatham, which had presented substantially the same factual senario. Maryland Rules 5-801(a), 5-801(c), and 5-802 are identical to the federal counterparts, and, as discussed supra, many federal courts have rejected the Wright v. Tatham proposition that out-of-court words are hearsay when offered to prove facts that the declarant impliedly believed but did not intend to communicate.

When the words of a Maryland rule and federal rule are the same or similar, often we look to interpretations of the federal rule in construing the Maryland Rule. See e.g., Ragland v. State, 385 Md. 706, 720, 870 A.2d 609, 617 (2005); Beatty v. Trailmaster, 330 Md. 726, 738 n. 8, 625 A.2d 1005, 1011 n. 8 (1993). Federal court interpretations of federal rules are considered persuasive, but are not binding on this Court in interpreting a Maryland rule. See e.g., Pinkney v. State, 350 Md. 201, 235, 711 A.2d 205, 222 (1998); State v. Matusky, 343 Md. 467, 490, 682 A.2d 694, 705 (1996); Walker v. State, 338 Md. 253, 260, 658 A.2d 239, 242 (1995).

The Committee note to Md. Rule 5-801 departs substantially from its federal counterpart. Rather than restricting the definition of “assertion,” the note “does not attempt to define ‘assertion,’ a concept best left to development in the case law.” It is clear that in adopting the Maryland Rule, this Court did not intend to adopt the federal Advisory Committee’s view that “nothing is an assertion unless intended to be one,” but rather intended to leave to case law the viability of the rule of Wright v. Tatham.

D. Theory Underlying the Rule Against Hearsay in General

In order to determine whether the unintentional implications of words should remain within the definition of hearsay, we first look to the theory underlying the rule against hearsay in general. In contrast to the intent-based approach of the federal Advisory Committee, scholars have focused on the veracity of the declarant and have identified four factors (sometimes termed “testimonial inferences”): (1) sincerity (the danger of fabrication); (2) narration (the danger of ambiguity); (3) perception (the danger of inaccurate observation); and (4) memory (the danger of faulty recollection). See Edmund M. Morgan, Hearsay Dangers and the Application of the Hearsay Concept, 62 Harv. L.Rev. 177, 185-88, 218 (1948) (stating that “the rational basis for the hearsay classification is not the formula, ‘assertions offered for the truth of the matter asserted,’ but rather the presence of substantial risks of insincerity, and faulty narration, memory and perception ....”) See also 4 Clifford S. Fishman, Jones on Evidence § 24-1 at 209 (2000); 2 McCormick on Evidence § 245 at 93 (John W. Strong ed., 5th ed.1999); Ronald J. Bacigal, Implied Hearsay: Defusing the Battle Line Between Pragmatism and Theory, 11 S. Ill. U. L.J. 1127, 1130; Ted Finman, Implied Assertions as Hearsay: Some Criticisms of the Uniform Rules of Evidence, 14 Stan. L.Rev. 682, 684-85 (1962).

Each of the four inferences is strengthened by the requirement that testimony be given in court, under oath, and subject to cross-examination. The witness’s presence allows the fact finder to observe physical limitations affecting perception, hesitancy or inconsistency suggesting imperfect memory, unclear or idiosyncratic use of language rendering narration ambiguous, or a demeanor suggestive of intentional falsehood. The oath, and with it the threat of prosecution for perjury, increases the likelihood of sincerity.

Most important to the testimonial inferences is the availability of cross-examination, a procedure Professor John Wigmore described as “beyond any doubt the greatest legal engine ever invented for the discovery of truth.” Wigmore, supra, § 1376, at 32. All four inferences may be called into question by cross-examination.

When, in lieu of in-court, sworn testimony, a fact is presented to the fact finder from an out-of-court declarant, the four inferences are undermined considerably. The declarant’s bare words reveal little or nothing about the circumstances under which the declarant came to believe the factual proposition communicated, nor about the accuracy of the declarant’s memory. They do not indicate the declarant’s tone or demeanor, the circumstances surrounding the utterance, or the motives which might have influenced the declarant to speak falsely. It is cross-examination, combined with the safeguards of presence and oath, that shores up the inferences of perception, memory, narration, and sincerity.

E. Hearsay Theory As It Relates to the Unintended Implications of Words

The State points to the federal Advisory Committee note to Fed.R.Evid. 801(a), stating that both verbal and nonverbal implied assertions, if unintentional, should be excluded from the definition of hearsay. The Committee note states as follows:

“[Njonverbal conduct ... may be offered as evidence that the person acted as he did because of his belief in the existence of the condition sought to be proved, from which belief the existence of the condition may be inferred. This sequence is, arguably, in effect an assertion of the existence of the condition and hence properly includable within the hearsay concept. Admittedly evidence of this character is untested with respect to the perception, memory, and narration (or their equivalents) of the actor, but the Advisory Committee is of the view that these dangers are minimal in the absence of an intent to assert and do not justify the loss of the evidence on hearsay grounds. No class of evidence is free of the possibility of fabrication, but the likelihood is less with nonverbal than with assertive verbal conduct. The situations giving rise to the nonverbal conduct are such as virtually to eliminate questions of sincerity. Motivation, the nature of the conduct, and the presence or absence of reliance will bear heavily upon the weight to be given the evidence. Similar considerations govern nonassertive verbal conduct and verbal conduct which is assertive but offered as a basis for inferring something other than the matter asserted, also excluded from the definition of hearsay by the language of subdivision (c).”

56 F.R.D. 183, 293 (1972) (citations omitted).

The view expressed in the federal Committee note has been criticized in court cases and by legal commentators. The notion that evidence “untested with respect to the perception, memory, and narration (or their equivalents) of the actor” poses minimal dangers “in the absence of an intent to assert” has been labeled a non sequitur on the grounds that the inferences of perception, memory, and narration are wholly independent from any intention to assert. The fact that a declarant may not have intended to communicate a particular factual proposition reveals nothing about the circumstances under which the declarant came to believe that proposition, nor about the clarity with which the declarant remembers the underlying events. Professor Paul Rice explains the point as follows:

“Of the four dangers giving rise to the hearsay exclusionary rule — perception, memory, sincerity, and ambiguity — the assertive/nonassertive distinction addresses only one: the danger of insincerity (i.e. intentional misrepresentation). If a declarant possesses no intention of asserting anything, it would seem to follow that he also possesses no intention of misrepresenting anything. It is a non sequitur1 to conclude from this, as the Advisory Committee has, that the remaining dangers of perception, memory, and ambiguity are automatically minimized with this assurance of sincerity. The logical link which the Advisory Committee finds between sincerity and error is simply nonexistent.”

Paul R. Rice, Should Unintended Implications of Speech be Considered Nonhearsay? The Assertive/Nonassertive Distinction Under Rule 801(a) of the Federal Rules of Evidence, 65 Temp. L.Rev. 529, 531 (1992).² See also David E. Seidelson, Implied Assertions and Federal Rule of Evidence 801: A Continuing Quandary for Federal Courts, 16 Miss. C.L.Rev. 33, 34-85 (1995); Bacigal, supra, at 1132; Finman, supra, at 685-86.

The Supreme Court of Iowa echoed these concerns in State v. Dullard, 668 N.W.2d 585, 590 (Iowa 2003):

“[T]he persuasiveness of the committee notes on implied assertions is undermined by the clear split of authority among the federal circuit courts, as well as many legal scholars.

The circumstances of this case, as well as other cases, can make it tempting to minimize hearsay dangers when a declaration is assertive but offered as a basis for inferring a belief of the declarant that most likely was not a significant aspect of the communication process at the time the declaration was made. Absent unusual circumstances, the unknown declarant likely would not have thought about communicating the implied belief at issue, and this lack of intent arguably justifies excluding the assertion from the hearsay rule. Nevertheless, we are not convinced that the absence of intent necessarily makes the underlying belief more reliable, especially when the belief is derived from verbal conduct as opposed to nonverbal conduct.

Four dangers are generally identified to justify the exclusion of out-of-court statements under the hearsay rule: erroneous memory, faulty perception, ambiguity, and insincerity or misrepresentation. Yet, the distinction drawn between intended and unintended conduct or speech only implicates the danger of insincerity, based on the assumption that a person who lacks an intent to assert something also lacks an intent to misrepresent.”

Id. at 593-94 (citations omitted).

With respect to the danger of ambiguous narration, Professor Ronald Bacigal suggests that absence of an intent to communicate actually increases the danger of misunderstanding. He explains this theory as follows:

“If there is a distinction in the ambiguity of intended and implied assertions, the distinction indicates that unintended implied assertions are inherently more ambiguous. When a declarant consciously intends to communicate with an observer, he desires his communication to be understood by that observer.... With unintentional implied assertions, however, the declarant makes no effort to avoid ambiguity, because there is no intent to convey his message to anyone. Thus, unintentional implied assertions have an inherently greater potential to be more ambiguous than intended assertions. The Federal Rules have it backward by classifying the less ambiguous intended assertions as hearsay, while classifying the more ambiguous unintentional assertions as nonhearsay.”

Ronald J. Bacigal, Implied Hearsay: Defusing the Battle Line Between Pragmatism, and, Theory, 11 S. Ill. U. L.J. 1127, 1132 (1987).

The federal Committee Note has been criticized also for conflating its analysis of the dangers posed by words with the dangers posed by nonverbal conduct. In particular, critics argue that language almost always conveys some intended meaning, and that the value of words as evidence of an underlying belief will necessarily depend on the sincerity with which the intentional meaning of those words is communicated.³ Professor Rice addresses this problem as follows:

“If the justification for the assertive/nonassertive distinction is the absence of the insincerity problem, and through that guarantee of sincerity a reduced level of perception, memory, and ambiguity problems, this justification cannot be applied to implied statements from speech. Speech is a mechanism of communication; it is virtually always used for the purpose of communicating something to someone. It is illogical to conclude that the question of sincerity is eliminated and that the problem of unreliability is reduced for unintended implications of speech if that speech might have been insincere in the first instance, relative to the direct message intentionally communicated. If potential insincerity is injected into the utterance of words that form the basis for the implied communication, the implication from the speech is as untrustworthy as the utterance upon which it is based.”

Rice, supra, at 534. Professor Michael Graham considers this problem in his Handbook of Federal Evidence:

“The Advisory Committee’s apparent attempted rejection of Wright v. Doe d. Tatham is as unfortunate as it is incorrect. When a statement is offered to infer the declarant’s state of mind from which a given fact is inferred in the form of an opinion or otherwise, since the truth of the matter asserted must be assumed in order for the nonasserted inference to be drawn, the statement is properly classified as hearsay under the language of [Fed. R. Evid] 801(c). Since the matter asserted in the statement must be true, a reduction in the risk of sincerity is not present. The Advisory Committee’s reliance on the analogy to nonverbal nonassertive conduct where a reduction in the risk of fabrication is caused by a lack of intent to assert anything is thus clearly misconceived.”

3 Michael H. Graham, Handbook of Federal Evidence § 801.7, at 73-77 (5th ed.2001) (citations omitted).'⁴

The Iowa Supreme Court addressed this issue in Dullard, reasoning as follows:

“[E]ven the danger of insincerity may continue to be present in those instances where the reliability of the direct assertion may be questioned. If the expressed assertion is insincere, such as a fabricated story, the implied assertion derived from the expressed assertion will similarly be unreliable. Implied assertions can be no more reliable than the predicate expressed assertion.”

Dullard, 668 N.W.2d at 594.

We conclude that, with respect to the four testimonial inferences, out-of-court words offered for the truth of unintentional implications are not different substantially from out-of-court words offered for the truth of intentional communications. The declarant’s lack of intent to communicate the implied proposition does not increase the reliability of the declarant’s words in a degree sufficient to justify exemption from the hearsay rule. Said another way, we conclude that a declarant’s lack of intent to communicate a belief in the truth of a particular proposition is irrelevant to the determination of whether the words are hearsay when offered to prove the truth of that proposition.

We hold that where the probative value of words, as offered, depends on the declarant having communicated a factual proposition⁵, the words constitute an “assertion” of that proposition. The declarant’s intent vel non to communicate the proposition is irrelevant. If the words are uttered out of court, then offered in court to prove the truth of the proposition — i.e. of the “matter asserted” — they are hearsay under our rules.

F. Other Courts in Accord with Our View

Other courts, albeit a minority, around the country have adopted the same approach to the interpretation of the Federal Rules of Evidence or Federal Rules-derived hearsay provisions.⁶ In United States v. Reynolds, 715 F.2d 99 (3d Cir. 1983), appellant Parran’s co-defendant Reynolds had been arrested after attempting to negotiate a stolen unemployment compensation check. Id. at 101. Postal inspectors testified that after Reynolds’s arrest he said to Parran “I didn’t tell them anything about you.” Id. The government offered this testimony as evidence of a conspiracy between Reynolds and Parran, and of Parran’s participation in the offenses charged. The United States Court of Appeals for the Third Circuit found that this evidence was hearsay as offered. The Court stated as follows:

“Reynolds’ statement is ... ambiguous and susceptible to different interpretations. As the government uses it, the statement’s probative value depends on the truth of an assumed fact it implies. Unless the trier assumes that the statement implies that Reynolds did not tell the postal inspectors that Parran was involved in the conspiracy to defraud, even though Parran was in fact involved, the statement carries no probative weight for the government’s case. For if the trier assumes that the statement implied that Reynolds did not tell the postal inspectors that Parran was involved because there was nothing to tell, the statement has no relevance to the government’s case.

Its only relevance to the government’s case is tied to an assumed fact of petitioner’s guilt that the government argues the utterance proves. Thus, depending on the interpretation given the content of Reynolds’ statement, it is either probative or not. Consequently, we believe that, as the government uses it, the statement’s relevance goes well beyond the fact that it was uttered. It is not merely intended to prove that Reynolds could speak, or that he could speak in English, or even that he directed a statement toward Parran. Instead, the government offers it to prove the truth of the assumed fact of defendant’s guilt implied by its content.”

Id. at 103.

The Third Circuit addressed this issue again in United States v. Palma-Ruedas, 121 F.3d 841 (3d Cir.1997). Appellant Quinones was charged with, inter alia, participation in a drug conspiracy and the kidnaping of his erstwhile confederate Ephrain Avendano. Id. at 845. Under the government’s theory of the case, Quinones and Avendano had met to discuss details of the drug conspiracy. After a deal had gone sour, other members of the conspiracy had held Avendano against his will for four weeks, transporting him from Texas to New Jersey. Avendano and his captors had arrived at Quinones’s New Jersey house, then traveled to a house in Maryland. Quinones had also gone to the Maryland house, but in a different car than Avendano. Under Quinones’s theory of the case, he had not been a member of the drug conspiracy and hence had not met Avendano previously, nor had he known that Avendano was in captivity. Id. at 857.

At trial, Quinones tried to introduce testimony that he had said “nice to meet you” upon Avendano’s arrival at his house to show that he had not met Avendano previously and did not know he was in captivity. The district court excluded this evidence as hearsay. The Third Circuit affirmed, reasoning as follows:

“Quinones makes a hypertechnical, syntactic argument by asserting that the relevance of the statement was not that Quinones really thought that ‘it was nice’ to meet Avendano but, rather, merely that the statements were said. Quinones’s counsel, however, undermined this argument in closing when he asserted that Quinones could not have been at the November 1994 meeting ‘because they never met before January 1, 1995.’ While Quinones may not have offered the statement for its express meaning, he did offer it for the implied assertion that he had never met Avendano. Statements offered to support an implied assertion a,re inadmissible hearsay. ”

Id. (citations omitted) (emphasis added).

In Lyle v. Koehler, 720 F.2d 426 (6th Cir.1983), petitioner Lyle challenged his Michigan murder conviction on federal habeas corpus. He claimed that his Sixth Amendment right of confrontation had been violated by the introduction of letters written by his co-defendant Kemp while awaiting trial. Id. at 429. Kemp had written to two potential witnesses, outlining the (presumably perjured) testimony he wished them to give at trial. Eschewing a confrontational clause analysis, the United States Court of Appeals for the Sixth Circuit employed a “conventional hearsay analysis.” The court found these letters to be hearsay, stating as follows:

“Believing the alibi to be false, the prosecution obviously did not seek to introduce the letters in order to demonstrate the truth of the particular statements they contained. Rather, the government intended to have the jury infer from the statements that Kemp was attempting to obtain fabricated alibi testimony, an act that revealed a ‘guilty mind’ on his part regarding the shootings. This guilty mind inference in turn invited the jury to infer Kemp’s substantive guilt.

Thus, in determining whether the letters constitute hearsay, we must decide whether the inferences that the government sought to elicit by introducing them should be included within the set of ‘assertions’ that the letters make.

* * *

Although we consider the question of the proper classification of the letters exceedingly close, we find that the inferences they necessarily invite form an integral part of the letters. They were introduced because by inference they assert the proposition of fact that Kemp and Lyle committed the robbery and hence need an alibi. Accordingly, we conclude that the letters are hearsay.”

Id. at 432-33 (citations omitted).

In State v. Dullard, 668 N.W.2d 585, 590 (Iowa 2003), the petitioner had been convicted of possessing pseudoephedrine with the intent to use it as a precursor to the manufacture of methamphetamine. Police had discovered the pseudoephedrine (a common over-the-counter drug not itself illegal to possess absent an intent to use it as a precursor) in a search of Dullard’s garage. Other items used in the manufacture of methamphetamine were also discovered, along with a notebook containing the following words:

“B—

I had to go inside to pee -I- calm my nerves somewhat down.

When I came out to go get Brian I looked over to the street North of here + there sat a black + white w/the dude out of his car facing our own direction — no one else was with him.”

Id. at 588. Over Dullard’s hearsay objection, the State introduced the notebook at trial, arguing that the note, presumably identifying Brett Dullard by his first initial, was offered to tie Dullard to the garage and its contents, not for the truth of any matter asserted therein.

The Iowa Supreme Court found that the words in the notebook were hearsay, because they had been “offered solely to show the declarant’s belief, implied from the words and the message conveyed, in a fact the State seeks to prove— Dullard’s knowledge and possession of drug lab materials.” Id. at 591. The court recognized that Iowa Rule of Evidence 5.801 was substantially identical to Fed.R.Evid. 801, and that under the federal Advisory Committee’s view, the notebook would not constitute hearsay when offered for this purpose. The court then stated as follows:

“The consequence of the committee’s approach is to admit into evidence a declarant’s belief in the existence of a fact the evidence is offered to prove, without cross-examination, just as if the declarant had explicitly stated the belief. Yet, if the declarant of the written note in this case had intended to declare his or her belief that Dullard had knowledge and possession of drug lab materials, the note would unquestionably constitute hearsay. Implied assertions from speech intended as communication clearly come within the definition of a statement under rule 5.801(a)(1). Unlike the committee, however, we do not believe indirect or unintentional assertions in speech are reliable enough to avoid the hearsay rule. We think the best approach is to evaluate the relevant assertion in the context of the purpose for which the evidence is offered.

We recognize this approach will have a tendency to make most implied assertions hearsay. However, we view this in a favorable manner because it means the evidence will be judged for its admission at trial based on accepted exceptions or exclusions to the hearsay rule. It also establishes a better, more straightforward rule for litigants and trial courts to understand and apply.”

Dullard, 668 N.W.2d at 594-95 (citations omitted).

The Court of Appeals of Texas also rejected the federal Advisory Committee approach to hearsay, concluding that “ ‘[mjatter asserted’ includes any matter explicitly asserted, and any matter implied by a statement, if the probative value of the statement as offered flows from the declarant’s belief as to the matter.” Mosley v. State, 141 S.W.3d 816, 829 (Tex.Ct. App.2004). The court held that the words, “Well, I can’t watch them all the time” were hearsay under Tex.R. Evid. 801 when offered to prove the truth of the declarant’s implied belief that her husband had sexually assaulted their grand daughter.

Other jurisdictions applying the common law, rather than rules-based evidentiary regimes, also retain the Wright v. Tatham view.⁷ See, e.g., Ginyard v. United States, 816 A.2d 21, 40 (D.C.2003) (advice to urinate on hand was hearsay when offered to prove truth of declarant’s implied belief that listener had recently fired a gun and needed to eliminate residue); Brown v. Commonwealth, 25 Va.App. 171, 487 S.E.2d 248, 252 (1997) (question “does Peggy know Pm here” was hearsay under the common law when offered to prove that declarant was personally acquainted with Peggy).

G. Can a Question be a “Statement?”

Having rejected the declarant-intent basis for determining whether an utterance is an “assertion,” and hence a “statement” capable of being hearsay, we turn next to the narrower issue of whether an utterance may qualify as an “assertion” and a “statement” if it occurs in the form of a question. The grammatical form of an utterance does not control whether the words are hearsay. As the Committee note to Maryland Rule 5-801 explains, “[t]he fact that proffered evidence is in the form of a question or something other than a narrative statement ... does not necessarily preclude its being an assertion.”

Our definition of hearsay leads to the conclusion that the particular form of an utterance is not determinative of whether an utterance is an “assertion” and hence potential hearsay. An out-of-court question may be probative because, by asking it, the declarant potentially communicated a given factual proposition. Offering the question to prove the truth of that proposition presents the dangers we have explained supra. Through faulty perception or memory, the declarant may have been mistaken in believing the proposition at issue. Through the declarant’s ambiguous use of language, the fact finder may misunderstand what the declarant was asking, and thus draw incorrect inferences to supposed implications. The declarant may have been insincere in asking the question — i.e. may have been pretending ignorance as to the subject matter or feigning interest in the information sought — thus giving rise to misleading inferences about his or her underlying beliefs.

In Brown v. Commonwealth, 25 Va.App. 171, 487 S.E.2d 248, 252 (1997), the defendant was charged with burglary and sex crimes after he allegedly broke into a woman’s apartment and sexually assaulted her. Brown claimed that the complainant had consented to the sexual acts and to his entry into her apartment, and contended that they had known each other for some time. In support of this theory, Brown sought to introduce a police officer’s testimony that Brown had asked “does Peggy know I’m here” during his detention at a police station. The trial court held that these words were hearsay. The Virginia Court of Appeals affirmed, explaining as follows:

“The defendant offered the statement, ‘Does Peggy know I am here?’, to prove by implication from the question that he personally knew the victim. In order for the jury to infer from the statement that the defendant knew the victim, the jury had to determine the truth or falsity of the implied assertion. The statement’s probative value depended entirely upon the truth of an inferred fact that the statement implied and as such it was hearsay.

Defendant’s statement to Officer Berryman was not relevant for any other purpose and the fact that the statement was made in no way proved the defendant’s relationship with the victim unless the truthfulness of the implied assertion wTas accepted. Therefore, the statement was offered to prove the truth of its content and it was inadmissible hearsay.”

Id. at 252.

IV.

Under the approach we have set out, Jasmine Pritchett’s words were hearsay as utilized. Jasmine spoke the words “is Erik going to get me?” Under the State’s theory of this case, by speaking these words, Jasmine impliedly communicated that she had witnessed Erik Stoddard assaulting Calen DiRubbo. The State offered these words to prove the truth of that implied factual proposition, i.e. to prove that Jasmine had in fact witnessed Stoddard assaulting Calen.

In order to accept the words “is Erik going to get me” as evidence that Jasmine witnessed Erik Stoddard assaulting Calen DiRubbo, the jury needed to make numerous inferences. It needed to infer first that Jasmine meant those words to convey a sincere inquiry as to whether Erik Stoddard was going to harm her. It needed to infer next that, by making this inquiry, Jasmine revealed unambiguously a belief that she had witnessed Stoddard assaulting Calen. It needed to infer further that Jasmine remembered accurately her perceptions of June 15, 2002. And it needed to infer finally that Jasmine’s perceptions were correct at the moment she experienced them.

In the absence of cross-examination, and particularly in light of Jasmine’s age,⁸ these inferences are largely untested and unsupportable. The jury had no information about the context in which Jasmine spoke these words, and hence little basis from which to conclude that she used “get” to mean “harm,” or that these words were spoken seriously and not in play. The jury had no information about other, unrelated reasons why Jasmine might have feared Stoddard. It had no information about Jasmine’s ability to remember accurately past events, nor any information about the amount of time that had elapsed between Calen’s death and Jasmine’s utterance. It had no information about factors that would have affected Jasmine’s perceptions during the alleged assault, such as distance, angle of view, obstructions, or Jasmine’s cognitive ability to distinguish an assault from some other frightening but innocuous event.

Jasmine’s out-of-court question, repeated in court by her mother with minimal information as to its context, is unreliable as evidence that Jasmine had witnessed Stoddard assault Galen. The question is untested as to narration/ambiguity and sincerity. Its relationship to the factual proposition it supposedly implies is untested as to ambiguity. Jasmine’s belief in the implied proposition, even if genuine, is untested as to memory and perception. The dangers that arose from the State’s use of this question demonstrate the continued utility of the common law approach to hearsay.

V.

The State contends that any error in the admission of Jasmine’s question was harmless. We disagree. To be harmless, we must be convinced beyond a reasonable doubt that the eiTor in no way influenced the verdict. See Ragland v. State, 385 Md. 706, 726, 870 A.2d 609, 621 (2005); Dorsey v. State, 276 Md. 638, 659, 350 A.2d 665, 678 (1976).

The State’s remaining evidence against Stoddard was circumstantial, demonstrating principally that (1) Stoddard had access to Calen during the medically-established time frame for the fatal blow; and (2) Stoddard might have been physically abusing Calen prior to her death. The State could not exclude the five other adults who had access to Calen during the time frame, nor could it establish that Stoddard was in fact responsible for Calen’s earlier injuries.

The State corroborated the case with the direct evidence of a purported eyewitness to the murder. The State’s contention that “[Jasmine] saw. She was the eyewitness. She saw what happened to Calen that day,” if believed by the jury, would be powerful evidence to establish Stoddard as the murderer.

Jasmine was not a competent witness, and she was unavailable to testify at trial. The State attempted to present her “eyewitness” testimony in two ways. It introduced Jasmine’s mother’s observations about a marked change in Jasmine’s behavior after Calen’s death, and elicited the utterance that is the subject of this appeal. We cannot say that the introduction of Jasmine’s question “is Erik going to get me” did not influence the verdict. Because these words were inadmissable hearsay and prejudicial, we reverse.

JUDGMENT OF THE COURT OF SPECIAL APPEALS REVERSED. CASE REMANDED TO THAT COURT WITH INSTRUCTIONS TO REVERSE THE JUDGMENT OF THE CIRCUIT COURT FOR BALTIMORE CITY AND REMAND THE CASE TO THAT COURT FOR A NEW TRIAL. COSTS IN THIS COURT AND THE COURT OF SPECIAL APPEALS TO BE PAID BY BALTIMORE CITY.

WILNER, BATTAGLIA, and GREENE, JJ., concur.

1 . For a discussion of the mischaracterization of hearsay statements as non-hearsay “circumstantial evidence” of the underlying proposition, see Roger C. Park, McCormick on Evidence and the Concept of Hearsay: A Critical Analysis Followed by Suggestions to Law Teachers, 65 Minn. L.Rev. 423, 430 (1981). See also Ronald J. Bacigal, Implied Hearsay: Defusing the Battle Line Between Pragmatism and Theory, 11 S. Ill. U. L.J. 1127, 1140 (1987) (dying victim’s statement "I love you" to homicide defendant would be irrelevant if offered to prove merely that victim loved defendant; victim's love for defendant only relevant if reveals belief in defendant's innocence; thus hearsay when offered to prove defendant’s innocence). But see Church v. Commonwealth, 230 Va. 208, 335 S.E.2d 823 (1985) (admitting child's out-of-court statement that sex was “dirty, nasty, and it hurt" as non-hearsay on grounds that it was offered merely to prove child's "attitude toward sex,” which was circumstantial evidence that she had been molested by defendant). See also Bacigal, supra, at 1141-44 (refuting logic oí Church ).

2 . Professor Rice reiterated this point recently, noting as follows:

“The definition of hearsay in Rule 801 incorporates the assertive/nonassertive distinction, which admits unintended statements of an out-of-court declarant as non-hearsay. Even though the hearsay problems of perception, memory and ambiguity are still present, the statement is admitted for the truth of its content, and since it was unintended, the statement must be sincere. This distinction is illogical to the point of being absurd. The most that a nonassertive statement can guarantee is that it is sincerely erroneous. To make matters worse, courts are interpreting and applying the assertive/nonassertive distinction in different-ways.”

Paul R. Rice, Symposium Federal Privileges In The 21st Century Back to the Future with Privileges Abandon Codification, Not the Common Law, 38 Loy. L.A. L.Rev. 739, 764-765 (2004) (emphasis added).

3 . The concurring opinion argues that the majority has committed itself to an "antiquated and wholly illogical view” by adhering to the implied assertions doctrine as it relates to assertions implied from out-of-court words. Concurring op. at 714-15, 887 A.2d at 584. Despite the claimed illogic of the Court's holding today, the concurring opinion has not even attempted to answer our central argument that, with respect to assertions implied from out-of-court words, all four hearsay concerns of sincerity, narration, perception, and memory are still present.

4 . The concurring opinion’s discussion of the treatment of the implied assertions doctrine in the treatises is incomplete. The discussion leaves the impression that it is presently beyond serious dispute that the Federal Rules of Evidence reject the implied assertion doctrine in total, and rightly so. See generally concurring op. at 730-32, 887 A.2d at 593-94. For instance, the concurring opinion says the following about Mueller and Kirkpatrick’s Federal Evidence:

"Mueller and Kirkpatrick purport to see some limited lingering value in Wright's analysis of the so-called 'two-step inference' (belief from conduct, fact from belief), but they acknowledge that 'FRE 801 rejects the broad proposition endorsed by Baron Parke' and suggest that, 'arguably, it would be wiser to forget Wright than continue to discuss it.' "

Concurring op. at 730, 887 A.2d at 593 (quoting Christopher B. Mueller and Laird C. Kirkpatrick, Federal Evidence § 378 (2d ed.1994)). The concurring opinion seems to be implying here that Mueller and Kilpatrick believe (1) that the implied assertion doctrine is inconsistent with the Federal Rules of Evidence, and therefore (2) that Wright is no longer significant in the law of evidence because the doctrine developed in it has been rejected. Neither of these propositions is actually supported by what Mueller and Kirkpatrick say.

The "broad proposition” in Wright that Mueller and Kirpatrick say is rejected by Federal Rule of Evidence 801 is that assertions implied from any conduct, verbal or nonverbal, are "statements” for purposes of the hearsay rule. Mueller and Kirkpatrick, supra § 378. In fact, Mueller and Kirkpatrick recognize that Wright is of continuing significance precisely because the issue of whether assertions implied from words are "statements” for purposes of the hearsay rule is an open question under the Federal Rules. Mueller and Kirkpatrick go on to argue that a case can be made that the exclusion of the letters in Wright would be the correct result if the case were decided under the Federal Rules because, unlike a case of nonverbal conduct, "the authors of the letters expressed ideas and information.” Mueller and Kirkpatrick, supra § 378.

5 . A reasonable test is to ask whether the words would remain probative if it could be established that the declarant did not believe the factual proposition for which they are offered.

6 . Inasmuch as the concurring opinion fails to address the policy considerations the majority opinion has advanced, the concurring opinion’s argument amounts ultimately to the claim that this Court should reject this view simply because the majority of federal circuits and state courts have done so. This Court has never taken the approach that it should decide issues not peculiar to Maryland law in accordance with a majority view simply because it is the majority view. See, e.g., Cheek v. United Healthcare, 378 Md. 139, 144, 167, 835 A.2d 656, 659, 673 (2003) (holding that arbitration agreement was unenforceable for lack of consideration because employer’s promise to arbitrate was illusory given that employer had unfettered discretion to rescind or alter the arbitration agreement, despite dissenting opinion noting that the majority view is that arbitration agreements of this sort are enforceable because employer gives consideration in form of employment offered to employee). Further, the fact that we are interpreting the Maryland Rules of Evidence provides no special reason to automatically follow the majority rule, as these very rules require us to exercise our independent judgment in interpreting them so that "truth may be ascertained and proceedings justly determined.” Md. Rule 5-102.

7 . The concurring opinion's proposed rale, in contrast to the common law rule we reaffirm today, would be difficult to apply in practice, particularly in situations where trial judges are required to make immediate decisions on hearsay objections. In many instances, it is simply unclear, particularly at first glance, whether a declarant intended an assertion that is implied by the words he or she has used. In such situations, the concurring opinion's proposed rule would leave trial judges with little practical guidance. See Dullard, 668 N.W.2d at 595 (recognizing implied assertion doctrine because it "establishes a better, more straightforward rule for litigants and trial courts to understand and apply” than the federal advisory committee approach).

8 . Jennifer referred to Jasmine as having been eighteen months old at the time of Calen’s death on June 15, 2002. The date on which Jasmine spoke the words at issue is not evident from the record. Jennifer testified on March 10, 2003. Jasmine was thus somewhere between eighteen and twenty-seven months old at the time she asked "is Erik going to get me?"