Non-verbal acts (such as a nod of the head) can never be hearsay.

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Hearsay is an out-of-court statement offered to prove the truth of the matter asserted. Non-verbal acts such as a nod of the head can be offered as a statement and can be hearsay if offered to prove the truth of the matter asserted. For example, if a witness nods their head when a statement is made, and the nod is offered to prove that the statement was true, then it is hearsay.

Non-Verbal Acts (Such as a Nod of the Head) Can