Nonverbal conduct can be a "statement" for purposes of the federal prohibition against hearsay and, thus, nonverbal conduct can be "hearsay."

Fed. R. Evid. 1004(2) ("The original is not required, and other evidence of the contents of a writing, recording, or photograph is admissible if-- ... (2) Original not obtainable. No original can be obtained by any available judicial process or procedure" ).The best evidence rule's requirement that an original be admitted in evidence to show the contents of the original does not apply and other evidence of contents may be used in lieu of the original if no original can be obtained by any available judicial process or procedure.

United States v. Troutman, 814 F.2d 1428, 1455 (10th Cir. 1987) (upholding trial court's exclusion of testimony about accused's past official conduct in matters unrelated to ITC because "extortion or refraining from extortion is not a semi-automatic act and does not constitute habit." ).If behavior is largely volitional rather than semi-volitional or semi-automatic, it is hot habit.

Fed. R. Evid. 103(d) ("Nothing in this rule precludes taking notice of plain errors affecting substantial rights although they were not brought to the attention of the court.").An objection is unnecessary to preserve a claim of error and a trial court should exclude, on its own initiative, evidence offered against a criminal defendant or other disadvantaged party when admission of the evidence would be "plain error."