A "statement" for purposes of the hearsay prohibition against the admission of hearsay statements is (1) an oral or written assertion or (2) nonverbal conduct of a person, if it is intended by the person as an assertion.

United States v. McGuire, 307 F.3d 1192, 1205 (9th Cir. 2002) (upholding trial court's ruling which determined witness as unavailable under Rule 804(a)(4) and admitted her prior testimony because "risks in late pregnancy,....For purposes of the hearsay exceptions created by Federal Rule of Evidence 804 or a comparable State rule a declarant is "unavailable" within the meaning of Rule 804(a) or a comparable State rule if the declarant (1) is exempted by ruling of the court on the ground of privilege from testifying concerning the subject matter of the declarant's statement; or (2) persists in refusing to testify concerning the subject matter of the declarant's statement despite an order of the court to do so; or (3) testifies to a lack of memory of the subject matter of the declarant's statement; or (4) is unable to be present or to testify at the hearing because of death or then existing physical or mental illness or infirmity; or (5) is absent from the hearing and the proponent of a statement has been unable to procure the declarant's attendance (or in the case of a hearsay exception under subdivision (b)(2), (3), or (4) of Rule 804(b) or a comparable State rule, the declarant's attendance or testimony) by process or other reasonable means; but a declarant is not "unavailable" if such exemption, refusal, claim of lack of memory, inability, or absence is due to the procurement or wrongdoing of the proponent of a statement for the purpose of preventing the witness from attending or testifying.

Rock v. Arkansas, 483 U.S. 44, pin? (1987).A non-constitutional rule of evidence specifying when a person is or is not a competent witness cannot override a federal constitutional right to have a potential witness testify.

Camfield v. City of Oklahoma City, 248 F.3d 1214, 1232 (10th Cir. 2001) (upholding trial court's exclusion of witnesses' testimony about Sgt. High's seizure announcement of child pornography videos upon walking into a video rental store where the conduct was not a semi-automatic act and could not serve as...The routine practice of an organization is admissible under Federal Rule of Evidence 406 or a comparable State rule in order to show the conduct of the organization on a particular occasion, but a volitional routine practice cannot be used to show the conduct of a specific person on a particular occasion.