Not every human utterance is capable of amounting to hearsay. Only an utterance that contains an assertion can amount to a "statement" for purposes of Federal Rule of Evidence 801(a) or hearsay under Federal Rule of Evidence 801(c).

Cf. Valdez v. Winans, 738 F.2d 1087, pin? (10th Cir. 1984) (constitutional attack on use of privilege to exclude exculpatory evidence rejected under the circumstances).Although United States Supreme Court precedent establishes that in some circumstances a nonconstitutional privilege must yield to the federal constitutional rights of a criminal defendant, apart from the specific circumstances for which the Court has given an authoritative answer, it is unsettled and and it is unknown when such a privilege rule must yield to a federal constitutional right such as confrontation, due process, or the right to present a defense.

Cf. Hertz v. Luzenac America, Inc., 370 F.3d 1014, 1019-1020 (10th Cir. 2004) (holding, in plaintiff employee's civil rights action against defendant employer, that the trial court properly refused to admit into evidence a memorandum of....Document must have been prepared in the normal course of business.

Fed. R. Evid. 405(a) & (b) ("(a) Reputation or opinion. In all cases in which evidence of character or a trait of character of a person is admissible, proof may be made by testimony as to reputation or by testimony in the form of an opinion. On cross-examination, inquiry is allowable into relevant specific instances of conduct. (b)...When an exception to the character evidence prohibition makes evidence of a criminal defedant's character admissible, the testimony of a witness on direct examination about the defendant's character must take the form of reputation or opinion and it cannot consist of specific instances of the defendant's conduct.