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).

United States v. Pugh, 405 F.3d 390, 399 (6th Cir. 2005) (reversing convictions for armed bank robbery because the trial court erroneously admitted statement of the mother of defendant Tyreese Pugh's girlfriend since....A statement made during a "structured" police interrogation is "testimonial."

United States v. Carter, 410 F.3d 1017, 1021-1022 (8th Cir. 2005) (upholding trial court's admission of female witnesses' testimony about accused's sexual offenses because such evidence showed similarities between earlier acts of sexual abuse and the charged conduct).Federal Rule of Evidence 413 and comparable rules in a few States create an express exception to the prohibition against circumstantial use of character, the prohibition against the use of character to show conduct. Rules such as Rule 413 provide that in a criminal trial for sexual assault evidence of the defendant's commission of another offense or offenses of sexual assault is admissible.

United States v. Meacham, 115 F.3d 1488, 1492 (10th Cir. 1997) (upholding trial court's admission of witness's testimony about accused's prior act of molesting two of his stepdaughters where the court, "in ruling on the admissibility of this evidence, focused on the intent and weighed the prejudicial...In a jurisdiction that authorizes the admission of evidence of another sexual assault by a criminal defendant who is on trial for sexual assault, the trial court can exclude the evidence of another sexual assault or assaults if the trial court finds that the harm or potential harm of such evidence of another sexual assault or assaults substantially outweighs the probative value of the evidence of the other assault or assaults.