Concurring Opinion by
WILNER, J,which BATTAGLIA and GREENE, JJ, join.
Erik Stoddard was charged with murdering three-year-old Calen DiRubbo. The State contended that the murder occurred in the presence of Calen’s eighteen-month-old cousin, Jasmine Pritchett. Jasmine was not called as a witness; instead, to support its contention that Jasmine saw what had occurred, the State produced the child’s mother, Jennifer Pritchett. Over objection, no longer pressed, the court allowed Jennifer to describe behavioral changes in Jasmine since the time of the murder — that Jasmine had become *714petrified of strangers and, upon hearing a loud noise, would break out into hives. The mother said that she had not discussed the case with Jasmine but, when asked whether the child had ever asked any questions about the matter, Jennifer responded, “She asked me if Erik was going to get her.”
Stoddard objected on both hearsay and reliability grounds and moved for a mistrial. The State gave a dual response: (1) that the remark was not hearsay because it was in the form of a question and that a question could not constitute a statement for purposes of the hearsay rule, and (2) that the remark was not being offered for its truth, to show that Stoddard was going to “get” the child, but only to show the child’s fear of Stoddard. In order to establish some relevance of Jasmine’s fear, the State wanted the jury to infer, from that fear, that Jasmine had a reason to fear Stoddard and that the reason for her fear was her observation of Stoddard attacking Calen.1 The trial court overruled the hearsay objection with the brief comment, “Effects on her, overruled” and denied the motion for mistrial. It did not address Stoddard’s concern about reliability.
The Court of Special Appeals affirmed, holding that the remark was a “non-assertive verbal utterance” and was not hearsay. Stoddard v. State, 157 Md.App. 247, 850 A.2d 406 (2004). In reaching that result, the intermediate appellate court concluded that, (1) with the adoption of the Maryland Rules of Evidence in 1994, this Court effectively abandoned the “implied assertion” rule enunciated in Wright v. Doe d. Tatham, [1837] 7 Adol. & El. 313, 112 Eng. Rep. 488 and followed in Waters v. Waters, 35 Md. 531 (1872), and (2) an assertion implied from verbal or non-verbal conduct does not constitute a statement for purposes of the hearsay rule unless the actor actually or necessarily intended his or her conduct to constitute such an assertion.
*715This Court proposes to reject that conclusion and, with it, the predominant view of courts and commentators throughout the United States, and join but a small handful of courts that continue to adhere to Wright’s antiquated and wholly illogical view that implied assertions constitute statements for purposes of the hearsay rule even if the declarant never intended his or her conduct to constitute such an assertion. In our view, adherence to such a roundly discarded doctrine is both unwarranted and, in this case, and most cases, unnecessary. We agree that the repetition of Jasmine’s question by her mother was inadmissible — hence our concurrence with the result — but adherence to that aspect of Wright and Waters is not necessary to such a holding.
The child’s question was inadmissible for two reasons. First, it did constitute inadmissible hearsay, although for a more rational reason than that proffered by the Majority; and second, Jasmine’s questionable competence was never established. Jennifer’s recounting of Jasmine’s question constituted hearsay because (1) whether Jasmine actually intended to assert that she had observed Stoddard assault Calen, the relevance of her question depended entirely on the jury’s assuming that she did, indeed, intend by it such an assertion, and (2) that necessarily assumed assertion was offered for its truth. Of perhaps greater significance, in furtherance of the reliability prong of the objection and given Jasmine’s very young age — eighteen months when the event occurred and two years at time of trial — the court, at the very least, should have conducted an inquiry into whether Jasmine was competent as a witness. Neither her question nor any assertion that might be implied from it was claimed to be spontaneous or in the nature of an excited utterance. Nor was her question admissible under Maryland Code, § 11-304 of the Criminal Procedure Article. If the child would not have been competent to testify directly to the implied assertion — “T saw Erik attack Calen”— the assertion cannot become admissible by having her mother repeat it. The hearsay rule is a rule of exclusion; once outside the realm of excited or spontaneous utterances or statutory admissibility, it cannot make admissible that which *716is otherwise inadmissible due to the incompetence of the declarant.
Wright and Waters
The notion that conduct, verbal or non-verbal, that, on its face, does not assert X and may never have been intended by the actor to assert X, nonetheless may constitute an implied assertion of X for purposes of the hearsay rule was first supposedly declared in one of six opinions issued by the Exchequer Chamber in the 1887 English case, Wright v. Doe d. Tatham, [1837] 7 Ad. & El. 313, 112 Eng. Rep. 488.
The case concerned the validity of the 1822 Will and 1825 Codicil made by John Marsden, which were challenged on the ground of Marsden’s alleged incompetence. That issue was tried four times, was “a legal cause celebre of the early nineteenth century” (see Emmeline Garnett, John Marsden’s Will at 1 (Hambledon Press 1998)), and eventually ended up in the House of Lords.
The case arose initially when Rear Admiral Standford Tat-ham, a cousin and heir of Marsden, filed a caveat to the probate of the Will, within hours after Marsden’s death and even before the Will and Codicil were offered for probate. Tatham claimed, alternatively, that Marsden was incompetent to make a Will and that the Will and Codicil were the product of undue influence by Marsden’s steward, George Wright, in whose hands the Will and Codicil placed most of the Estate. The case was filed in Chancery, but the issue of Marsden’s competence was submitted to a jury. Trial took place in 1830. Ninety-six witnesses testified — 35 for Wright and 61 for Tat-ham — and a great deal of correspondence to and from Mars-den was admitted bearing on his competence.
The jury found the Will and Codicil to be valid. The presiding judge declared himself satisfied with the verdict, and a motion for new trial was denied by the Master of the Rolls. Tatham presented his motion then to Lord Chancellor Brougham who, having acted as counsel for Tatham in the matter, requested the assistance of Lord Chief Justice of the Common *717Pleas Tindal and the Lord Chief Baron, both of whom opined that the motion should be denied. See Tatham, v. Wright, [1831] 2 Russ. & Mylne 1. The bill was dismissed with costs.2
One of the issues raised by Tatham concerned the correspondence. Chief Justice Tindal noted that “[t]he importance of this long and varied correspondence in deciding on the competence of the testator to make his will is self-evident,” and that if it was the genuine correspondence of Marsden, “no one could hesitate to declare that the man who possessed sufficient vigour and energy of mind to carry on this correspondence must be held to possess a disposing power over his own property.” Id. at 23. Tatham contended that the letters in question were actually written by Wright or someone under his tutelage, a suggestion rejected by the panel.
Dissatisfied with the jury’s verdict and the rejection of his motion for new trial, Tatham secretly entered upon one of the properties, executed a bogus lease, withdrew, and then, through his lessee, Doe, filed an action in ejectment against Wright, again raising the issue of Marsden’s competence as a testator.3 A great deal of documentary and testimonial evi*718dence was offered on the issue, including a host of documents that were found among Marsden’s effects upon his death. Among those documents were three letters written to Mars-den decades before he made his Will, by persons who knew Marsden but who were long deceased at the time of the trial. Presumably in an effort to rebut Tatham’s claim that Marsden was always incompetent, not just when he drew his 17-page Will and the subsequent Codicil, Wright offered those letters to show that the writers believed, from the nature of the letters, that Marsden was competent at the time the letters were written, from which an inference could be drawn that he was, in fact, competent, not only then, but when he later made his Will and Codicil.
The trial judge, Baron Gurney, rejected the letters, but, of greater significance, he refused to admit the Will unless the sole surviving witness to it — a witness hostile to Wright — was called to testify. Without the Will, the judge directed a verdict for Tatham in the amount of one shilling plus costs, and two exceptions were noted — one dealing with the rejection of the letters and the other complaining of Gurney’s refusal to admit the Will. The appellate court announced that it was divided on the first issue but agreed that Gurney erred in excluding the Will. The judgment was reversed on that ground, without discussion of the letters, and a new trial awarded. Wright v. Tatham, [1834] 1 Adol. & El. 3. At that second trial, Baron Gurney admitted the letters, and the jury found for Wright. That decision also was reversed, the court holding that the letters were inadmissible. At the third trial, Justice Coleridge rejected the letters, a verdict again resulted for Tatham, and exceptions were noted. The six judges of the appellate panel, the Exchequer Chamber, were equally divid*719ed, which resulted in an affirmance of the judgment. Wright v. Tatham, [1837] 7 Adol. & El. 313, 112 Eng. Rep. 488. The House of Lords, on writ of error, asked for the opinion of seventeen judges, and, on the basis of those opinions, it affirmed.
The implied assertion rule emanates mostly from the opinion rendered by Baron Parke for the Exchequer Chamber— one of six rendered by the judges of that Chamber — for that is the one most often quoted for the proposition that implied assertions, whether or not intended as such, constitute statements for purposes of the hearsay rule.
Parke observed that the basis argued for admitting the letters was that they were evidence “of the treatment of the testator as a competent person by individuals acquainted with his habits and personal character,” that they were “more than mere statements to a third person indicating an opinion of his competence by those persons,” but were “acts done toward the testator by them, which would not have been done if he had been incompetent, and from which, therefore a legitimate inference may, it is argued, be derived that he was so.” Wright v. Doe d. Tatham., supra, 7 Adol. & El. at 383-84, 112 Eng. Rep. at 515. He noted that, although the letters would be admissible to show that they were sent, the contents of the letters were not admissible as “evidence of the fact to be proved upon the issue — that is, the actual existence of the qualities which the testator is, in those letters, by implication, stated to possess.” Id. at 383, 112 Eng. Rep. at 515. For that purpose, he concluded, the letters “are mere hearsay evidence, statements of the writers, not on oath, of the truth of the matter in question, with this addition, that they have acted upon the statements on the faith of their being true, by their sending the letters to the testator.” Id. at 386-87, 112 Eng. Rep. at 515. He rejected the notion that the act of sending the letters overcame the hearsay problem.4
*720As noted, the case then proceeded on writ of error to the House of Lords, which requested the opinions of seventeen judges, among whom were Baron Parke, Baron Gurney, and Justice Coleridge, who thus ended up reviewing their own decisions. Nineteenth Century English law permitted that practice; Maryland law obviously does not. In his opinion to the House of Lords, Parke essentially repeated what he had said for the Exchequer Chamber.
In Waters v. Waters, 35 Md. 531 (1872), the Court of Appeals cited Wright — in particular Baron Parke’s opinion for the Exchequer Chamber — with approval and held, as the Wright court had, that letters written to a testator that made no direct assertion of any kind regarding the testator’s competence were inadmissible to prove the competence of the testator. The Court held generally that “the acts and sayings of third persons with reference to [the testator], even though they may be construed into an expression on their part of an opinion or belief touching his mental capacity, cannot be admitted in evidence; unless connected with some act on his part which indicates his competency or incompetency.” Id. at 544. The Court added:
“[L]etters of third persons addressed to a party, are not of themselves any evidence of the mental capacity of the party to whom they are addressed; and are not admissible for that purpose, unless it be shown that they came to him, and that he exercised some act of judgment or understanding upon them; and then they are admissible merely as inducement, or as connected with the acts of the party, whose competency or mental capacity is in dispute, and which the letters may serve to elucidate or explain. It is what he has *721done or said upon the occasion, and not what has been done or said by others, that is pertinent to the question in issue.”
Id. (Emphasis added).
Although that statement is much more indicative of a ruling on relevance than on the hearsay rule — indeed, the word “hearsay” is never mentioned in the opinion — the case, probably because of its reliance on Wright, has come to be regarded as a hearsay case, as establishing that statements or conduct offered as an implied assertion of some different fact not plain from the statement or conduct itself is hearsay if offered for the truth of the implied assertion. The hearsay nature of the Court’s holding, like that in Wright, would seem to result only from this analysis:
(1) The letters themselves — their content — say nothing about the competence of the testator. They do not assert that the testator was either competent or incompetent or that he had any mental acuity or defect from which competence or incompetence could be directly inferred, and thus have no direct relevance to the issue of the testator’s competence. As the contents of the letters were not offered, directly, for their truth, the hearsay rule would not be applicable; the only ground of objection to admissibility of the contents of the letters would be relevance.
(2) The only conceivable relevance of the letters would come not from the truth of the matters asserted in them but rather from an implied assertion drawn from a chain of inferences arising from the fact that such letters were written to the testator. That chain consists of the following links:
(a) An assumption that the letters conveyed a message that would be meaningless to the testator unless he was competent to understand the message;
(b) From that assumption, an inference (first inference) could be drawn that the authors of the letters believed that the testator was competent to understand the message;
(c) From that first inference, a second inference could be drawn that, if the authors believed that the testator was *722competent to understand the message, he was, in fact, competent to understand the message;
(d) From the second inference, the ultimate (third) inference could be drawn that, if the testator was competent to understand that message, he was competent as well to make a Will.
There is, of course, some play in each of these inferences; one does not necessarily follow from the one before it. The first inference, for example — belief in the recipient’s competence — assumes the good faith of the author, that he would not be inclined to taunt or tease the recipient by sending a message that he knew the recipient would not likely understand. As to the second inference, there is always the prospect that the author may have overestimated the recipient’s ability to understand the message, e.g., delivering to most anyone over 40 a 30-page manual on how to set up, program, and operate nearly any electronic device. The third inference is perhaps the most tenuous, especially on the facts in Wright, where the letters were sent between 23 and 36 years before the Will was drawn (and 26 to 39 years before the Codicil). The validity of these inferences would seem to depend, to a large extent, on what is known about the declarant and his relationship to the recipient. The less that is known (or sometimes the more that is known), the weaker become the inferences, and, because the ultimate result rests on a chain of the inferences, the weakness factor multiplies as one proceeds along the chain.5
To the extent there was a legitimate hearsay issue in Waters (or in Wright), it arose only from the ultimate inference — an implied assertion by an out-of-court declarant, the reliability of which depended on the credibility of that declarant, that the testator was competent to make a Will. As noted, the Waters Court did not go into any hearsay analysis or expound any view regarding implied assertions. It did not *723address any question of whether an implied assertion sought to be admitted for its truth could arise from conduct or words that were not intended by the declarant to assert the fact sought to be proved. Whether the declarant intended to assert anything regarding the testator’s competence was simply not considered. The Court merely held that a third party’s assumed belief or assertion, express or implied, that a testator was competent was not admissible to prove such competence unless the testator took some action in response or with regard to the assertion, in which event the assertion would be admissible solely to explain the testator’s reaction.
Analyzed in this way, it would seem that any hearsay issue that hinges on an implied assertion would arise only if the declarant intended what he said or did to constitute such an assertion or if the trier of fact would be required, in considering the evidence, to assume such an intent, whether or not it was alleged or shown. If there was no such expressed or necessarily assumed intent — if, in the Wright and Waters context, the declarant did not intend his act or words to convey anything regarding the testator’s competence and there was no basis for a trier of fact to assume such an intent — the act done or words uttered would be inadmissible not because they constituted an implied assertion but because they would be irrelevant; they would not make the fact of the testator’s competence either more or less likely. The act or words would be relevant only if they were intended by the actor, or assumed to be intended by the actor, as an assertion with regard to the testator’s competence, and only in that situation, if the assertion were offered for its truth, would the hearsay rule be applicable.
Unfortunately, Wright v. Doe and Waters v. Waters have not been construed as drawing this distinction and instead have been interpreted as holding verbal and non-verbal conduct that conceivably could he regarded as an implied assertion to be one, without regard to whether the actor intended his or her conduct to constitute such an assertion. If the relevant inference could be drawn from the conduct, it did not matter whether the actor intended that such an inference be *724drawn, or, indeed, whether the actor actually held a completely opposite view. Evidence of the conduct was inadmissible because the imputed inference constituted, by legal fíat, an out-of-court assertion offered for its truth.
That rigid and illogical rule held sway in the 19th Century, but, as with other formalized rules of evidence restricting the scope of information available to judges and juries, it began to undergo challenge in the 20th Century.6 As noted by Dean Mason Ladd in his article, A Modern Code of Evidence, appended to the American Law Institute’s Model Code of Evidence (1942), “[ejarlier fallacies have been exposed, rules of evidence have been critically examined and are being tested upon the basis of logic, psychology, and trial experience. The realistic function of evidence in the solution of controversies of fact, rather than principles in the abstract, is becoming the basis of judging evidence rules.” Id. at 334. That change was noted as well by Justice Sutherland in Funk v. United States, 290 U.S. 371, 381, 54 S.Ct. 212, 215, 78 L.Ed. 369, 375 (1933): since experience “is a continuous process, it follows that a rule of evidence at one time thought necessary to the ascertainment of truth should yield to the experience of a succeeding generation whenever that experience has clearly demonstrated the fallacy or unwisdom of the old rule.”
*725An early inroad on the notion that an actor’s intent is irrelevant in determining whether out-of-court conduct may be treated as an implied assertion came with the development of the Model Rules of Evidence by the American Law Institute in 1942. In § 501, the Model Code defined “hearsay evidence” as “evidence of a hearsay statement or of a hearsay declaration.” Both of those terms were also defined and both required that there be a “statement.” Section 501(1) defined a “statement” as including “both conduct found by the judge to have been intended by the person making the statement to operate as an assertion by him and conduct of which evidence is offered for a purpose requiring an assumption that it was so intended.” That precept was carried forth in the definition of “hearsay statement” in § 501(2), that a hearsay statement was “a statement of which evidence is offered as tending to prove the truth of the matter intended to be asserted or assumed, to be so intended ...” (Emphasis added).
That approach made the intent on the part of the actor the linchpin: the out-of-court conduct would not constitute an implied assertion unless either the court found that the actor intended such an assertion or the evidence was offered for a purpose requiring an assumption that it was so intended. In the absence of such an intent, the evidence may be inadmissible because of a lack of relevance, but not because it was hearsay.
Although the development and publication of the Model Code served to focus attention on the shortcomings of Wright v. Tatham, the Code itself was not adopted in any of the States, so the criticism of the English decision remained largely in the commentary, where it abounded. See, for example, John Maguire, The Hearsay System: Around and Through the Thicket, supra, 14 Vand. L.Rev. 741; Ted Finman, Implied Assertions as Hearsay: Some Criticisms of the Uniform, Rules of Evidence, 14 Stan. L.Rev. 682 (1961-62); Judson Falknor, The “Hear-Say” Rule as a “See-Do” Rule: Evidence of Conduct, 33 Rocky Mtn. L.Rev. 133 (1960-61).
*726In 1961, the United States Judicial Conference approved a proposal to develop a comprehensive Federal Code of Evidence, and it was that effort that ultimately led to the rejection by most of the Federal and State courts of the conclusion espoused by Baron Parke in Wright. Pursuant to its authority under the Federal Rules Enabling Act (28 U.S.C. § 2072) to prescribe rules of evidence for the U.S. District Courts, the Supreme Court appointed a special Advisory Committee on Rules of Evidence to draft such a Code.
The Advisory Committee dealt with the implied assertion issue through the definition of “hearsay,” and, in particular, through the definition of “statement.”7 An early draft of FRE 801(a) stated that “conduct of a person, either verbal or non-verbal, is not a statement unless intended by him as an assertion.” See Minutes of Fourteenth Meeting of Advisory Committee, May 23-25, 1968 at 30. That articulation made absolutely clear that no conduct was to be regarded as a statement, and thus as hearsay, unless intended, by the person whose conduct it was, to be an assertion. In order to state that proposition in the affirmative, rather than the negative, however, the draft was amended to define “statement” as “(1) an oral or written assertion or (2) nonverbal conduct of a person if, but only if, it is intended by him as an assertion.” (Emphasis added). Id. at 33. That language was consistent with, though not identical to, the then-recently adopted California Evidence Code, which defined “statement” as “(a) oral or written verbal expression or (b) nonverbal conduct of a person intended by him as a substitute for oral or written verbal expression.” Cal. Evid.Code § 225 (1967).
*727The change in language provoked questions from Advisory Committee members as to whether limiting proposed Rule 801(a)(2) to “nonverbal” conduct might imply that section (a)(1) was limited to verbal expressions. The Reporter responded that “oral statements had to be considered as conduct, too,” and, after some further discussion, the revised language was approved. See Minutes of Fourteenth Meeting of Advisory Committee, supra, at 32. That textual language survived further review by the Advisory Committee, the Standing Committee on Rules of Practice and Procedure, the Supreme Court, and Congress.
Perhaps to clarify that the revision of the language from the early draft was not intended to treat verbal conduct differently from non-verbal conduct for purposes of the hearsay rule, the Advisory Committee attached a lengthy Committee Note to the text of FRE 801. The opening paragraph of that Committee Note states:
“The definition of ‘statement’ assumes importance because the term is used in the definition of hearsay in subdivision (c). The effect of the definition of ‘statement’ is to exclude from the operation of the hearsay rule all evidence of conduct, verbal or nonverbal, not intended as an assertion. The key to the definition is that nothing is an assertion unless intended to be one.”
(Emphasis added).
It is clear from the remainder of the Advisory Committee Note that, in addressing implied assertions — assertions based on conduct — the Committee conceived that such implied assertions could, indeed, emanate, at least in part, from words uttered, but it concluded (as ultimately did the Supreme Court and Congress) that, even if such conduct could be regarded as assertive in nature, evidence of it should not be excluded under the hearsay rule. The full text of the Committee Note needs to be considered to understand the rationale:
“It can scarcely be doubted that an assertion made in words is intended by the declarant to be an assertion. Hence verbal assertions readily fall into the category of ‘state*728ment.’ Whether nonverbal conduct should be regarded as a statement for purposes of defining hearsay requires further consideration. Some nonverbal conduct, such as the act of pointing to identify a suspect in a lineup, is clearly the equivalent of words, assertive in nature, and to be regarded as a statement. Other nonverbal conduct, however, may be offered as evidence that the person acted as he did because of his belief in the existence of the condition sought to be proved, from which belief the existence of the condition may be inferred. This sequence is, arguably, in effect an assertion of the existence of the condition and hence properly includable within the hearsay concept. See Morgan, Hearsay Dangers and the Application of the Hearsay Concept, 62 Harv. L.Rev. 177, 214, 217 (1948), and the elaboration in Finman, Implied Assertions as Hearsay: Some Criticisms of the Uniform Rules of Evidence, 14 Stan. L.Rev. 682 (1962). Admittedly evidence of this character is untested with respect to the perception, memory, and narration (or their equivalents) of the actor, but the Advisory Committee is of the view that these dangers are minimal in the absence of an intent to assert and do not justify the loss of the evidence on hearsay grounds. No class of evidence is free of the possibility of fabrication, but the likelihood is less with nonverbal than with assertive verbal conduct. The situations giving rise to the nonverbal conduct are such as virtually to eliminate questions of sincerity. Motivation, the nature of the conduct, and the presence or absence of reliance will bear heavily upon the weight to be given the evidence. Falknor, The ‘Hear-Say’ Rule as a ‘See-Do’ Rule: Evidence of Conduct, 33 Rocky Mt. L.Rev. 133 (1961). Similar considerations govern nonassertive verbal conduct and verbal conduct which is assertive but offered as a basis for inferring something other than the matter asserted, also excluded from the definition of hearsay by the language of subdivision (c).
When evidence of conduct is offered on the theory that it is not a statement, and hence not hearsay, a preliminary determination will be required to determine whether an *729assertion is intended. The rule is so worded as to place the burden 'upon the party claiming that the intention existed; ambiguous and doubtful cases will be resolved against him and in favor of admissibility. The determination involves no greater difficulty than many other preliminary questions of fact. Maguire, The Hearsay System: Around and Through the Thicket, 14 Vand. L.Rev. 741, 765-767 (1961). For similar approaches, see Uniform Rule 62(1); California Evidence Code §§ 225, 1200; Kansas Code of Civil Procedure § 60-459(a); New Jersey Evidence Rule 62(1).”
(Emphasis added).
The adoption of FRE 801 marked a sea change in the perception of implied assertions. The great majority of courts that have considered the issue and most of the recognized commentators now agree that a person’s conduct, whether verbal or non-verbal, will not constitute a statement for purposes of the hearsay rule unless the person intended his or her conduct to assert the matter sought to be admitted for its truth.
Turning first to the commentators, some of whom were involved in the development of the Federal Rules of Evidence, Saltzburg, Martin, and Capra note that “[cjonduct is not hearsay merely because it is offered to prove the truth of the belief that generated the conduct. Rather, under Rule 801, conduct can only be hearsay if the declarant intended by the conduct to communicate information.” 4 Stephen A. Saltzburg, Michael M. Martin, and Daniel J. Capra, The Federal Rules of Evidence Manual § 801.02[l][c] at 801-14 (8th ed.2002). They point out:
“The reasons for excluding non-assertive conduct from the hearsay rule are persuasive. A principal reason for excluding hearsay is because the veracity of the declarant cannot be tested by cross-examination. In the case of non-assertive acts, the author by definition does not intend to make an assertion, meaning that the risk of insincerity is substantially diminished. The actor is at least not trying to lie. Moreover, non-assertive conduct is usually more reliable *730than the ordinary out-of-court statement, because by conduct the declarant has risked action on the correctness of his belief — he has put his money where his mouth is.”
Id. at 801-15.
The fifth, and current, edition of McCormick, after raising the question of whether the letters written to Marsden, if offered as evidence of his competence, should be regarded as hearsay, notes that “the basic answer under the Federal Rules and contemporary judicial analysis is that an out-of-court assertion is not hearsay if offered as proof of something other than the matter asserted. The theory is that questions of sincerity are generally reduced when assertive conduct is ‘offered as a basis for inferring something other than the matter asserted.’ ” (quoting from Advisory Committee Note). 2 John W. Strong, Kenneth S. Broun, George E. Dix, Edward J. Imwinkelried, D.H. Kaye, Robert P. Mosteller, and E.F. Roberts, McCormick on Evidence 111-12 (5th ed.1999). Although acknowledging that not all of the alleged hearsay dangers have been entirely eliminated, the authors point out that “the contemporary resolution of the issues involved in ‘implied assertions’ reflect ultimately a compromise between theory and the need for a relatively simple and workable definition in situations where hearsay dangers are generally reduced.” Id. at 113.
Mueller and Kirkpatrick purport to see some limited lingering value in Wright’s analysis of the so-called “two-step inference” (belief from conduct, fact from belief), but they acknowledge that “FRE 801 rejects the broad proposition endorsed by Baron Parke” and suggest that, “arguably, it would be wiser to forget Wright than continue to discuss it.” 4 Christopher B. Mueller and Laird C. Kirkpatrick, Federal Evidence § 378 at 59-60 (2nd ed.1994).
Weinstein, who was a member of the Advisory Committee, though noting that words and actions “may convey meaning even though they were not consciously intended as assertions,” points out that “[according to the Advisory Committee, the ‘key to the definition is that nothing is an assertion unless *731it is intended to be.’ ” 5 Joseph M. McLaughlin, Jack B. Weinstein, and Margaret A. Berger, Weinstein’s Federal Evidence § 801.10[2][c] at 801-10 (2nd ed.2005).
David Binder also confirms that the broad concept of hearsay emanating from Wright is inconsistent with the definition adopted in the Federal Rules and “would encompass much of what is now considered circumstantial evidence, and there would be no end to what might be considered hearsay.” David F. Binder, Hearsay Handbook § 1.10 at 1-17 (4th ed.2001).
Some academics have challenged the wisdom of the decision by the Advisory Committee, the Supreme Court, and Congress to exclude implied assertions from the definition of hearsay and would like to return to their perception of the common law rule. In 1997, a proposal was made by Professor Paul Rice and his staff at American University Washington College of Law to achieve that result by rewriting FRE 801(a) to define “statement” as “all speech and writing, as well as any action that communicates a message.” She The Evidence Project, 171 F.R.D. 330, 362, 596-97 (1997). It does not appear that Professor Rice’s proposal has received any serious attention by the Federal Judiciary. The Supreme Court seems quite content with the Rules as they are, as it has rejected occasional calls by Rice and others for it to appoint a new Advisory Committee to review those rules.
The Majority suggests that the Advisory Committee Note has been “the source of disagreement in the courts and among scholars,” and posits that “some Federal courts” construe FRE 801(a) in accord with the Note, while “other courts” do not. It cites only cases from the Third Circuit Court of Appeals and Lyle v. Koehler, 720 F.2d 426 (6th Cir.1983) from the Sixth Circuit, as evidencing the courts that do not.
The suggestion that there is anything approaching an equal division among the courts is misleading. Apart from the fact that both the Third and Sixth Circuit courts may have altered *732their view since the cases relied on by the Majority,8 all of the other Federal appellate courts that have considered the matter — the Second, Fourth, Fifth, Eighth, Ninth, Tenth, Eleventh, and D.C. Circuits — have held unintended “assertions” implied from verbal or non-verbal conduct not to constitute statements for purposes of the hearsay rule. See Headley v. Tilghman, 53 F.3d 472, 477 (2nd Cir.1995), cert. denied, 516 U.S. 877, 116 S.Ct. 207, 133 L.Ed.2d 140 (1995); United States v. Oguns, 921 F.2d 442, 448-49 (2nd Cir.1990); United States v. Giraldo, 822 F.2d 205, 212-13 (2nd Cir.1987), cert. denied, 484 U.S. 969, 108 S.Ct. 466, 98 L.Ed.2d 405 (1987); United States v. Lis, 120 F.3d 28 (4th Cir.1997); United States v. Weeks, 919 F.2d 248, 251-52 (5th Cir.1990), cert. denied, 499 U.S. 954, 111 S.Ct. 1430, 113 L.Ed.2d 481 (1991) (“According to the drafters of the Federal Rules of Evidence, the ‘key’ to the definition of ‘statement’ is that ‘nothing is an assertion unless intended to be one.’ ”); United States v. Lewis, 902 F.2d 1176, 1179 (5th Cir.1990) (“Rule 801, through its definition of statement, forecloses appellant’s argument by removing implied assertions from the coverage of the hearsay rule”); United States v. Singer, 687 F.2d 1135, 1147 (8th Cir.1982) (en banc); United States v. Perez, 658 F.2d 654, 659 (9th Cir. 1981); United States v. Jackson, 88 F.3d 845, 847-48 (10th Cir.1996); United States v. Summers, 414 F.3d 1287 (10th Cir.2005) (recognizing Rule, but finding that assertion was intended); United States v. Groce, 682 F.2d 1359, 1364 (11th Cir.1982); United States v. Long, 905 F.2d 1572, 1579 (D.C.Cir.1990), cert. denied, 498 U.S. 948, 111 S.Ct. 365, 112 *733L.Ed.2d 328 (1990); United States v. Zenni, 492 F.Supp. 464 (E.D.Ky.1980); Gaw v. C.I.R., 70 T.C.M. (CCH) 1196 (1995).
That is true with respect to the State courts as well. The Majority cites cases from Iowa, Texas, and Virginia, but fails to mention either that the Texas ruling is based on a statute or contrary rulings consistent with the Federal approach in Arizona, California, Colorado, Connecticut, the District of Columbia, Florida, Indiana, Michigan, Missouri, New Mexico, Tennessee, Washington, Wisconsin, and Wyoming. See State v. Carrillo, 156 Ariz. 120, 750 P.2d 878, 882 (App.1987), modified on other grounds, 156 Ariz. 125, 750 P.2d 883 (1988); People v. Morgan, 125 Cal.App.4th 935, 23 Cal.Rptr.3d 224 (Cal.App.2005); People v. Griffin, 985 P.2d 15, 17-18 (Colo.App.1998) (acknowledging the rule but holding that evidence in question did not fall within it); State v. Esposito, 223 Conn. 299, 613 A.2d 242, 251 (1992); Little v. United States, 613 A.2d 880, 881-82 (D.C.1992); Burgess v. United States, 608 A.2d 733, 739 (D.C.1992); Hernandez v. State, 863 So.2d 484 (Fla.App.2004), review denied, 874 So.2d 1191 (Fla.2004); Bustamante v. State, 557 N.E.2d 1313 (Ind.1990); People v. Jones, 228 Mich.App. 191, 579 N.W.2d 82, 93 (1998) (On Reh. Aft,. Remand), review of hearsay issue denied, 458 Mich. 862, 587 N.W.2d 637 (1999) (“[W]e should not be surprised that the vast majority of cases decided under the Federal Rules of Evidence and their state counterparts that have addressed the issue have rejected the ‘implied assertion’ theory”); State v. Williams, 118 S.W.3d 308, 311-12 (Mo.App.2003); Jim v. Budd, 107 N.M. 489, 760 P.2d 782 (1987), cert. denied, 106 N.M. 95, 739 P.2d 509 (1987); State v. Ortiz-Burciaga, 128 N.M. 382, 993 P.2d 96, 101 (Ct.App.1999); State v. Land, 34 S.W.3d 516 (Tenn.Crim.App.2000) (recognizing rule but holding evidence intended as an assertion); State v. Collins, 76 Wash.App. 496, 886 P.2d 243 (1995), review denied, 126 Wash.2d 1016, 894 P.2d 565 (1995); State v. Kutz, 267 Wis.2d 531, 671 N.W.2d 660, 675-76 (App.2003), review denied, 269 Wis.2d 198, 675 N.W.2d 804 (2004); Guerra, v. State, 897 P.2d 447, 459-62 (Wyo.1995).
*734Before turning to Maryland, it may be of interest to note that Baron Parke’s views expressed in Wright — the spawner of the doctrine so soundly rejected in current American law— have not been followed in some of the British Commonwealth countries and, if it had a free hand to do so, would probably have been overruled by the House of Lords in England. The holding in Wright came before the House of Lords in Regina v. Kearley [1992] 2 A.C. 228. The police raided the home of the defendant and found some drugs inside, but not enough clearly to indicate that they were for distribution rather than personal use. While at the defendant’s home, the police answered a number of telephone calls in which the callers asked to speak with the defendant and to be supplied with drugs by him. The trial court allowed the officers to testify about those calls, and the defendant was convicted of possession with intent to supply. The Court of Appeals affirmed, and the question was certified to the House of Lords “whether evidence may be adduced at a trial of words spoken ... by a person not called as a witness, for the purpose not of establishing the truth of any fact narrated by the words, but of inviting the jury to draw an inference from the fact that the words were spoken (namely that the defendant was a supplier of drugs).” Id. at 230.9
The five judges assigned to hear the case recognized the precedent of Wright, and split three-to-two to entertain the appeal and reverse. The opinions of the judges, in this instance, are more significant than the effect of their decision, as at least three of the five — the two dissenters and one in the majority — concluded that Wright was not consistent with modern practice and ought to be at least reconsidered, if not overruled. The only stumbling block, for at least one in the majority, was a 1965 decision of the House of Lords, Myers v. Director of Public Prosecutions [1965] A.C. 1001; [1964] 3 *735W.L.R. 145; [1964] 2 All E.R. 881. H.L. (E.) in which the House of Lords determined (also by a three-to-two vote) that any further development of or changes to the hearsay rule should be made by Parliament and not judicially. That precluded the House, acting as a judicial body, from overruling Wyight.
The dissenters in Kearley were direct in their criticism of Wright. Lord Griffiths commented:
“Unless compelled to do so by authority I should be most unwilling to hold that such evidence should be withheld from the jury. In my view the criminal law of evidence should be developed along common sense lines readily comprehensible to the men and women who comprise the jury and bear the responsibility for the major decisions in criminal cases. I believe that most laymen if told that the criminal law of evidence forbade them even to consider such evidence as we are debating in this appeal would reply ‘Then the law is an ass.’ ”
Id. at 236-37.
After analyzing a number of cases from Commonwealth countries and the decision of the Privy Council in Ratten v. The Queen [1972] A.C. 378, Lord Griffiths announced that he would be prepared to answer the certified question in the affirmative. Id. at 242.10 Lord Browne-Wilkinson agreed. *736Indeed, after considering the relevant part of Baron Parke’s opinion, he concluded, “in my judgment the opening words of that passage show that Parke B. would have adopted the same view as the Privy Council in Ratten v. The Queen ... if the sending of a letter and its contents had itself been a circumstantial fact from which an inference (other than an inference as to the writer’s opinion) could be drawn.” Regina v. Kearley, supra, 2 A.C. at 285. Browne-Wilkinson said that he “can find no reason why the evidence of multiple calls should not have been admitted” and that he would have dismissed the appeal. Id. at 287. He urged Parliament to review the hearsay rule, as “[i]n cases such as the present it hampers effective prosecution by excluding evidence which your Lordships all agree is highly probative and, since it comes from the unprompted actions of the callers, is very creditworthy.”
As in most cases, it is the views of the majority, not the dissent, that are most significant. Lord Bridge of Harwich, one of the three in the majority, after recounting the demise of Wright in the United States, stated that he “fully appreciate[d] the cogency of the reasons advanced in favour of a limitation or exception to the operation of the hearsay rule which would allow the admission of implied assertions of the kind in question,” but concluded that, in light of Myers v. Director of Public Prosecutions, supra [1965] A.C. 1001, it was not “open to your Lordships to modify judicially the common law rule as expounded in Wright v. Doe d. Tatham. ...” Id. at 249. “However strong the temptation to legislate judicially in favor of what is seen as a ‘common sense’ result and however tardy Parliament may appear to be in reforming an area of law which is seen to be in need of radical reform,” he added, it was for Parliament to make the change. Id. at 251.
Only Lord Ackner and Lord Oliver of Aylmerton seemed actually to agree with Parke’s view in Wright, although Lord Ackner did note that “if a convincing case can be made out for relaxing the hearsay rule’s application to the type of situation which has arisen in this appeal, then it must be achieved by legislation.” Id. at 258. A fair analysis of the five opinions more than suggests that, but for the governing mandate that *737any overruling of Wright would have to be done by Parliament, Lord Bridge of Harwick would have joined the two dissenters and Wright would have ceased to be the law in England.
The debate over how to treat implied assertions arises mostly from the large universe of conduct that conceivably could produce an implied assertion, the debate often focusing on whether the conduct in question was, itself, “assertive.” In some situations, the answer is easy — the nodding or shaking of the head in response to a question, pointing a finger at a suspect, showing four fingers when asked how many shots were fired. That kind of conduct is routinely held to be assertive because, absent some extraordinary circumstance, the court can reliably assume that it was intended by the actor to be an assertion — the functional equivalent of an oral response that would clearly constitute a statement for hearsay purposes.
Other conduct is more ambiguous. Courts, including the trial court in this case, have wrestled over whether a question can constitute an assertion, whether there is any truth or falsity that can be found in a question, and have come to different conclusions. Judges and commentators have raised and discussed dozens of hypothetical — whether the action of a sea captain who, after inspecting a ship, allows his family to travel on the ship constitutes an implied assertion that the ship is seaworthy, and what, if any, assertion may be implied from the act of a suspect, or a non-suspect, in fleeing during the pendency of an investigation. The notion of implied assertions has become entwined with the state of mind exception to the hearsay rule, with the broader concept of circumstantial evidence from which inferences can be drawn, and with the equally broad issue of relevance, and the ultimate ruling on admissibility can depend on the analytical method chosen by the court to address the issue.
All of this weighed heavily on this Court’s Standing Committee on Rules of Practice and Procedure when drafting the Maryland Rules of Evidence, and particularly Rule 5-801. *738Rule 5-801(a), defining “statement” for purposes of the hearsay rules, is identical to FRE 801. The Court’s Rules Committee was, of course, well aware of the Federal Rule and the Advisory Committee Note. The Reporter’s Note attached to Rule 5-801 in the Committee’s 125th Report to the Court noted that §§ (a) and (b) of the Rule tracked their Federal counterparts.
The Reporter’s Note added that the Committee “considered whether to define ‘assertion’ but concluded that this was best left to case law development.” Given the differing views regarding the kinds of verbal or non-verbal conduct that might constitute an assertion, the Reporter’s Note recited the Committee’s concern that “the form of a particular statement not be determinative of whether it is an ‘assertion’ for purposes of this Rule” and observed that “[t]his is a particular problem with questions and is a point upon which the decisions are not harmonious.” In that regard, the Committee suggested, and the Court, in adopting the Committee’s draft of Rule 5-801 (a), approved, the following Committee Note:
“This Rule does not attempt to define ‘assertion,’ a concept best left to development in the case law. The fact that proffered evidence is in the form of a question or something other than a narrative statement, however, does not necessarily preclude its being an assertion. Nor does the Rule attempt to define when an assertion, such as a verbal act, is offered for something other than its truth.”
A fair inference may be drawn from the Committee Note that the Court did not intend, merely by adopting the language of FRE 801(a), to make any determination as to the continued vitality of Waters v. Waters. Compare Committee Notes to Rule 5-607 (“This Rule eliminates the common law ‘voucher’ rule”) and Rule 5-702 (“This Rule is not intended to overrule Reed v. State, 283 Md. 374, 391 A.2d 364 (1978) and other cases adopting the principles enunciated in Frye v. United States, 293 F. 1013 (D.C.Cir.1923)”) in which the Court did indicate an intended effect, or non-effect, of the Rule on current common law. The Court was aware of the Federal courts’ view of the effect of FRE 801(a), however, and was *739aware as well that approximately 38 States had, by then, adopted codes of evidence similar or identical to the Federal rules. The Court understood, because the point was stressed in the presentation of the Committee’s Report, that one of the important reasons to adopt a Code of Evidence modeled closely on the Federal Rules of Evidence was to have a national Federal and State case law research base to guide the future development and interpretation of Maryland’s evidence law.
In that light, it makes no sense to reject the overwhelmingly predominant view of both the Federal and State courts — the national case law base — that the doctrine emanating from Wright v. Doe, flawed from its inception, has no present force and that “the effect of the definition of ‘statement’ is to exclude from the operation of the hearsay rule all evidence, verbal or nonverbal, not intended as an assertion.” To hold on to the rigid formulation of one English judge espoused in an 1837 case that, in Maryland, would never have proceeded to the point that it did, and thereby put, or keep, Maryland out of step with most of the rest of the country on a point of law that should be uniform, is neither logical nor practical. The validity of what is attributed to Wright has been fairly debated by courts and commentators over many decades, and a broad consensus verdict has been returned. This Court should not just accept, but embrace, that verdict. Waters should be overruled.11
Legitimate Reasons Why The Testimony Was Inadmissible
As noted, there are two adequate reasons why Jasmine’s question, sought to be admitted through the testimony of her *740mother, was inadmissible: it did constitute hearsay, for which no exception was available; and it emanated from a declarant who likely would have been incompetent as a witness.
Rejection of Wright and Waters does not necessarily exclude implied assertions from the operation of the hearsay rule. It simply means that a court may not treat as a statement, for purposes of the hearsay rule, an alleged assertion that rests solely on an implication from verbal or nonverbal conduct unless the actor either intended that such an assertion arise from his or her conduct or that such an intent is necessary to the relevance of the evidence. If the court finds from the circumstances that the actor intended his or her out-of-court conduct to imply the proffered assertion or that the relevance of the evidence hinges on an assumption of that intent, the implied assertion does constitute a statement, and if that statement is offered for its truth, it constitutes hearsay. That, indeed, is precisely the case here.
Jasmine’s question, whether Erik will “get” her, has no direct relevance to whether Stoddard murdered Calen, and it was not offered as having such relevance. It was offered, in conjunction with the evidence of the behavioral changes, to show that Jasmine was afraid that Stoddard might “get” her, but the relevance of even that inference is, at best, dubious.
The true, and only relevant, purpose for admitting the question was to show that there was a basis for the child’s fear, and that the basis was her observation of what Stoddard had done to Calen. The prosecutor made that clear. In this circumstance, however, given that Jennifer had not discussed the matter with the child, that purpose would necessarily require the jury to assume that Jasmine had not only, in fact, observed that occurrence but that her fearful question was intended, even if implicitly, to convey that fact to her mother. If that intent was not to be assumed, the question had no relevance. Because the assertive nature of the question was most likely intended by the child but, in any event, had to be assumed for the evidence to be relevant, it did constitute a statement that was being offered for its truth and therefore *741constituted hearsay. As it fell within no exception, it was inadmissible hearsay.
Maryland Rule 5-601 creates a presumption that every person, including a child, is competent to be a witness. Maryland Code, § 9-103 of the Cts. & Jud. Proc. Article supplements the Rule with the statutory provision that, in a criminal trial, “the age of a child may not be the reason for precluding a child from testifying.” Although the Rule and the statute preclude a categorical finding of incompetence based on age, they do not remove the discretion of the trial court, upon a challenge, to determine whether a particular child witness is, in fact, competent to testify.
In Perry v. State, 381 Md. 138, 148-49, 848 A.2d 631, 637 (2004), we observed that the test for determining the competence of a child witness is not age but rather “ ‘whether the witness has intelligence enough to make it worthwhile to hear him [or her] at all and whether he [or she] feels a duty to tell the truth.’ ” (quoting from Brandau v. Webster, 39 Md.App. 99, 104, 382 A.2d 1103, 1106 (1978)). Quoting then from Jones v. State, 68 Md.App. 162, 166-67, 510 A.2d 1091, 1094 (1986), we noted that “[t]he trial court must determine the child’s ‘capacity to observe, understand, recall, and relate happenings while conscious of a duty to speak the truth.’ “ We adopted as the test for a child’s competency the factors set forth in 2 Barbara E. Bergman and Nancy Hollander, Wharton’s Criminal Evidence § 7:16 (15th ed.1998):
“[I]ntelligence; an understanding of the obligation to tell the truth; knowledge of the nature of an oath; ability at the time of the occurrence to accurately perceive it; ability to remember the occurrence; capacity to actively communicate the memories; and ability to understand and respond to simple questions about the occurrence. It is not necessary that the child be able to define an oath. The child need only understand that, upon taking an oath, the child has promised to tell the truth.”
When a facially valid challenge is presented, the court must make some inquiry, sufficient to allow it to determine whether *742the witness, including a child witness, is competent. Perry, at 146-47, 848 A.2d at 636, citing United States v. Odom, 736 F.2d 104 (4th Cir.1984) and United States v. Gerry, 515 F.2d 130 (2d Cir.1975), cert. denied, 423 U.S. 832, 96 S.Ct. 54, 46 L.Ed.2d 50 (1975).
Although there is no pre-fixed minimum age for competency, the issue will necessarily arise with respect to infants and toddlers, whose capacity to meet the test may be inherently suspect. We are aware of no case in which a two-year-old child has been found competent to testify as to positive assertions that would constitute statements for purposes of the hearsay rule, and, indeed, there is considerable psychological evidence that children of such tender age lack the ability to distinguish meaningfully between truth and lies. See Jean Piaget, The Moral Judgment of the Child (1965); Lawrence Kohlberg & Elliot Turiel, Moral Development and Moral Education, in Psychology and Educational Practice (G. Lesser ed., 1971); J.G. Smetana & J.L. Braeges, The Development of Toddler’s Moral and Conventional Judgments, 36 Merrill-Palmer Quarterly 329 (1990); Laura E. Berk, Child Development 475 (4th ed.1997); Roger V. Burton & Abigail F. Strichartz, Children on the Stand: The Obligation to Speak the Truth, 12 Developmental & Behavioral Pediatrics 121, 123 (1991).
Had Jasmine been called as a witness to testify to what she may have observed, her competence would surely have been challenged, and the trial court would have been required to conduct a reasonable inquiry in order to determine the issue. We certainly can express a healthy skepticism whether the two-year-old child would have been permitted to testify under oath to events she witnessed when she was eighteen months old. Notwithstanding Stoddard’s objection to the reliability of the hearsay statement attributed to Jasmine, no such inquiry was made.
The question is then raised whether, if Jasmine herself would have been precluded from testifying as to what she observed, an out-of-court implied assertion that she saw Stod*743dard harm Calen can be admitted through the testimony of her mother. Does the repetition of the statement by the mother give it any greater reliability? The answer has to be “no.”
It is important to note that we are not dealing here with an excited utterance or other spontaneous statement, the reliability and admissibility of which rests upon its spontaneity. The incompetence of the declarant in that situation has not been regarded as an impediment. See Moore v. State, 26 Md.App. 556, 561-62, 338 A.2d 344, 347 (1975), cert. denied, 276 Md. 747 (1975) (excited utterance of three-and-a-half year old admitted); Jackson v. State, 31 Md.App. 332, 356 A.2d 299 (1976) (excited utterance of four-year-old admitted); Johnson v. State, 63 Md.App. 485, 492 A.2d 1343 (1985), cert. denied, 304 Md. 298, 498 A.2d 1185 (1985) (excited utterance of insane person admitted); Annotation, Admissibility of testimony regarding spontaneous declarations m,ade by one incompetent to testify at trial, 15 A.L.R.4th 1043 (1982).12
The general rule is that out-of-court statements may not be admitted under a hearsay exception unless the declarant would have been competent to testify directly with respect to the statement. The rationale for that rule, which would seem to be self-evident, was articulated in an 1881 English case, Dysart Peerage Case [1881] L.R. 6 App. Cas. 489, 504, where Lord Blackburn concluded that “it is impossible that if a person said something, and could not himself, if alive, have been permitted to give testimony to prove it, he can, by dying, render that statement admissible.” Wigmore elaborated:
“The hearsay rule is merely an additional test or safeguard to be applied to testimonial evidence otherwise admissible. The admission of hearsay statements, by way of exception to the rule, therefore presupposes that the assertor possessed the qualifications of a, witness in regard to knowl*744edge and the like. These qualifications are fundamental as rules of relevancy.”
5 Wigmore, Evidence (Chadbourne rev.1974) § 1428, p. 255 (emphasis in original).
McCormick agrees: “As a general proposition, the competency standards apply to hearsay declarants as well as in-court witnesses. If a person would be incompetent to testify on the stand, his hearsay statement is usually inadmissible.” 1 McCormick on Evidence, supra, § 61, n. 3 at 266-67. See also Clifford S. Fishman, 4 Jones on Evidence, § 28:6 at 617 (7th ed.2003) (“a witness may testify only if he or she is competent, and the same rule applies with regard to a hearsay declarant”). Most courts have also expressed that view. See State v. Ryan, 103 Wash.2d 165, 691 P.2d 197, 203 (1984) (“the declarant’s competency is a precondition to admission of his hearsay statements as are other testimonial qualifications”); In re Basilio T., 4 Cal.App.4th 155, 166, 5 Cal.Rptr.2d 450 (Cal.App.1992) (“we apply the general rule that if a declarant would have been disqualified to take the stand by reason of infancy or insanity his extrajudicial statements must also be inadmissible”), superseded by statute as recognized by In re Lucero L., 22 Cal.4th 1227, 1239-42, 96 Cal.Rptr.2d 56, 998 P.2d 1019 (2000); South Carolina Dept. of Social Services v. Doe, 292 S.C. 211, 355 S.E.2d 543, 548 (App.1987) (“it is impossible that a child who is incompetent to make statements as a witness can, by absenting himself from court, render those statements admissible. Generally, if the declarant was not competent at the time of making the statement, it may not be admitted into evidence through hearsay repetition”).
We would reverse the judgment of the Court of Special Appeals on the ground that Jennifer’s repetition of Jasmine’s question to her was inadmissible, for the reasons noted in this opinion. We would not, however, cling to the antiquated and largely discarded view of Baron Parke regarding implied assertions, but, on that issue, would join the rest of the country in holding that an alleged assertion implied solely from verbal or non-verbal conduct does not constitute a statement for purposes of the hearsay rule unless either the *745declarant intended to make such an assertion or the admission of the evidence requires an assumption of such an intent.
Judge BATTAGLIA and Judge GREENE join in this concurring opinion.
. That purpose was made clear in the State’s closing argument: "She was afraid of Erik. Why? Because she saw. She was the eyewitness. She saw what happened to Calen that day and she was scared to death it was going to happen to her, too.”
. Of some interest is the court’s ruling with respect to costs: "Not satisfied with alleging that the testator was not of sound and disposing mind, [the bill] brought forward a pretended case of gross fraud and undue influence, most injurious to the character of the Defendant Wright; every part of that case had failed: and it had been established by the verdict of a jury, approved of by the Judge before whom the issue was tried, and ratified by two judgments of this Court, that the will, which the Plaintiff sought to impeach, was the deliberate and valid act of a test ator of sound and disposing mind. ” Id. at 31.
. There is no doubt that the issue tried in the first case, of Marsden’s competence as a testator, was the same as that in the second. In the appeal in the second case, the court observed that the only differences between the two cases were that, in the second case Wright was the only defendant and Tatham sued as lessor, whereas in the first, Wright was joined by three other defendants and Tatham had sued in his own right, not as lessor. Otherwise, the court noted, the first action would have been "a suit between the very same parties, upon the same subject matter....” Wright v. Doe d. Tatham [1834] 1 Adol. & El. 3, 18-19. A subsequent appellate panel reached the same conclusion. Wright v. Doe d. Tatham [1837] 7 Adol. & El. 313, 314 n.(a) ("A former trial had taken place on feigned issues raising the same questions.”). It is clear *718that, under Maryland law, Tatham’s lessee would be regarded as being in privity with Tatham and would be precluded from relitigating the issue of Marsden's competence in the ejectment action. See Walzl v. King, 113 Md. 550, 556, 77 A. 1117-19 (1910); FWB Bank v. Richman, 354 Md. 472, 731 A.2d 916 (1999); Prescott v. Coppage, 266 Md. 562, 572-73, 296 A.2d 150, 155 (1972). Had the case arisen here, it would have been dismissed preliminarily and would never have produced the rulings that it did.
. Inconsistently with his challenge to the three letters, Tatham offered testimony, which was admitted, that Marsden was treated as a child by his servants and that in his youth he was called "Silly Jack" and "Silly *720Marsden.” A witness was allowed to testify that he had seen boys throwing dirt at him and shouting, "There goes crazy Marsden.” The court seemed to find no fault with those express or implied assertions, offered to show that Marsden was incompetent and thus constituting no less hearsay than the three letters.
. If, for example, the reliability of each inference is only 70% (and the reliability of the final inference is arguably far less than that), the reliability of the ultimate inference would be only 34.3%.
. Professor Maguire, no fan of Wright, observed that the English court missed "an almost miraculously appointed opportunity for authoritative determination of the claim that where there is no intentional communication of the proposition at issue, where that proposition is come at only by inference, there can be no hearsay.” John M. Maguire, The Hearsay System: Around and Through the Thicket, 14 Vand. L.Rev. 741, 752 (1960-61). The missed opportunity he attributes to the legal culture in England at the time:
"The 1830’s, during which the case was presented, fell in an era of somewhat pompous professional satisfaction as to the technical English rules of proof at common law. Consider, for instance, that Mr. Justice Coleridge in the instant litigation saw fit to decry before the House of Lords ‘the fallacy, that, whatever is morally convincing, and whatever reasonable beings would form their judgments and act upon, may be submitted to a jury.’ [citation omitted], Liberalized reception of evidence, by definition or otherwise, was scarcely the order of the day.”
Id. at 753. (Emphasis added).
. The definition of “statement” is critical to the Federal Rule on hearsay. The term "hearsay” is defined in FRE 801(c) as “a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” (Emphasis added). "Declarant” is defined as "a person who makes a statement.” FRE 801(b). If the evidence does not constitute a “statement,” it cannot be hearsay and the source of the evidence is not a declarant.
. See Lexington Insurance Co. v. Western Pennsylvania Hospital, 423 F.3d 318, 330 (3rd Cir.2005) (following Advisory Committee Note that "nothing is an assertion unless intended to be one”). See also United States v. Short, 790 F.2d 464 (6th Cir. 1986) (testimony by social worker regarding behavior of three-year-old child while playing with anatomically correct doll admissible as non-hearsay to support inference that child had knowledge of oral sex); also United States v. Dandy, 998 F.2d 1344 (6th Cir. 1993), cert. denied, 510 U.S. 1163, 114 S.Ct. 1188, 127 L.Ed.2d 538 (1994); United States v. Wright, 343 F.3d 849, 865-66 (6th Cir.2003), cert. denied, 541 U.S. 990, 124 S.Ct. 2016, 158 L.Ed.2d 496 (2004).
. The fact that the question was cast in the singular — one call — caused some problem for the judges on the issue of relevance. Several believed that, although one call would have been irrelevant, several calls did have relevance on the issue of whether the drags possessed by the defendant were for distribution.
. In Ratten, the defendant, charged with shooting and killing his wife, claimed that the shotgun discharged while he was cleaning it. A telephone operator was allowed to testify that, shortly before the time of the shooting, she received a call from the defendant’s home and that the call was from a woman who, sobbing and hysterical, said, "Get me the police, please” and gave her address but hung up before the operator could contact the police. Lord Wilbcrforce, for the Privy Council, held that the contents of the call were not hearsay. Recounting that case, Lord Griffiths concluded that the words spoken “were relevant to show that the wife in a hysterical state wanted the police from which the jury could draw the inference that her death shortly thereafterwards from gunshot wounds was not an accident.” He added, “It seems to me inevitable that the jury must also have drawn the inference that she was terrified and wanted the police because she believed her husband might shoot her. But this possible inference was not sufficient to exclude the evidence as hearsay.”
. In an attempt to defend its indefensible position, the Court complains that we have "faile[d] to address the policy considerations the majority opinion has advanced” (footnote 7) and that our position "would be difficult to apply in practice” (footnote 8). That is not the case. If the Court would read again the cases and commentary cited throughout this Concurring Opinion, it would find that the overwhelming majority view is that the "policy considerations” advanced by the majority are simply not shared by most other authorities. As to "practicality," the rest of the country has had no problem implementing the modern approach.
. Nor would Jasmine's statement qualify under Maryland Code, §11-304 of the Criminal Procedure Article, as she was not asserted to be a "child victim” and the statement was not made to a person listed in § 1 l-304(c).