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This article explores the characteristics and functions of assertion and considers how the term influences the definition of hearsay under Federal Rule of Evidence 801. Rule 801(a) defines hearsay by limiting it to words and conduct intended as an assertion, but the rule does not define the term assertion. Courts and legal scholars have focused relatively little attention on the nature and definition of assertion. That is unfortunate, because assertion is a robust concept that has been the subject of intense philosophic study over recent decades. Assertion is not a mere cypher standing in for whatever speech or conduct one decides to subject to the hearsay exclusionary rule, although that is how the term is often treated by the legal profession. I conclude with recommendations about how to better handle some hearsay problems that center on the definition of assertion.

In 1986 the South African Law Commission (Project 6 Review of the Law of Evidence), drawing heavily on the research of Professor Andrew Paizes, recommended significant amendments in respect of hearsay evidence that were subsequently given legislative force in the Law of Evidence Amendment Act 45 of 1988. The Act defines hearsay as 'evidence, whether oral or in writing, the probative value of which depends upon the credibility of any person other than the person giving such evidence' (s 3(4)).

and prosecutors. Part I of this Article argues that the conventional theory of hearsaydiscovery balance does not reflect the reality of modem federal practice. An imbalance has arisen because, in the last quarter century, developments in the law of evidence and confrontation are at odds with developments-or one might say nondevelopments-in the law of criminal discovery. Since enactment of the Federal Rules of Evidence in 1975, both the law of evidence and modem Confrontation Clause doctrine have evolved toward broader admission of hearsay in criminal cases. Contrary to conventional theory, that evolution has at least matched-and probably has outpaced-the trend toward more liberal admission of hearsay in civil cases. But while federal courts criminal cases, the rules of criminal discovery show no sign of adapting to that reality. As a result, in comparison to other litigants, federal criminal defendants now face a litigation environment that features both minimum discovery and maximum admissible hearsay. Part II offers some proposals to address that imbalance by expanding a defendant's right to learn in advance what hearsay he must face, and his right to gather "ammunition" to contest that hearsay. Where appropriate, I have included proposals that would require the amendment of existing rules. But recognizing the practical difficulties facing any rule-making initiative, my principal focus is to suggest more effective means of applying Rule 16, the Jencks Act, and the Brady doctrine-the major discovery tools presently available to criminal defendants-to the task of contesting prosecution hearsay. This Article is not a critique of developments in the law of evidence, nor of the Court's application of the Confrontation Clause to hearsay. It is not an argument that more, or less, hearsay should be admitted in criminal cases. Instead, it takes as a starting point the undeniable reality that, for good or ill, today's federal criminal trials include a wider variety of admissible hearsay than ever before. My aim is to show how the process of criminal discovery can and should adapt to that reality to correct the hearsay-discovery balance when the government relies on hearsay.

In terms of section 3(1)(c) of the Law of Evidence Amendment Act 45 of 1988 the court has, since 3 October 1988, been given a wide discretion to admit hearsay evidence if it would be in the interests of justice to do so. How this discretion is to be applied has given rise to difficulty. The question to be addressed here is whether it would be in the interests of justice to admit the hearsay statements of a child who is a complainant in a criminal matter and who is subsequently unable to testify. The courts are very wary of admitting hearsay statements emanating from children, due to issues of competency and the cautionary rule, and for this reason certain countries have created specific legistative provisions to regulate the admissibility of children's hearsay statements. In Namibia, the Combating of Rape Act 8 of 2000 admits hearsay via the backdoor. It is submitted that not legislation, but a common sense approach is needed to determine whether hearsy statements from child victims should be admissible. The fact that evidence is hearsay is a factor which should go to weight and not the admissibility thereof.