Article VIII — Hearsay
Rule 801: Definitions That Apply to This Article; Exclusions from Hearsay
What is Definitions That Apply to This Article; Exclusions from Hearsay?
Rule 801 defines hearsay and carves out important exclusions. Hearsay is an out-of-court statement offered to prove the truth of what it asserts. The classic example: a witness testifies 'Tom told me the light was red.' If offered to prove the light was actually red, it is hearsay. If offered to prove Tom could speak English, it is not — because it is not being offered for the truth of the matter asserted.
Source: Fed. R. Evid. 801
Rule Text
A 'statement' is what a person intended as an assertion (oral, written, or nonverbal conduct intended as an assertion). A 'declarant' is the person who made the statement. 'Hearsay' is a statement that the declarant did not make while testifying at the current trial or hearing and that a party offers in evidence to prove the truth of the matter asserted in the statement. Certain prior statements by a witness and admissions by a party-opponent are defined as not hearsay. Prior statements include: prior inconsistent statements given under penalty of perjury at a proceeding, prior consistent statements offered to rebut a charge of fabrication or to rehabilitate credibility, and statements of identification of a person. Opposing party statements include individual statements, adopted statements, authorized statements, agent/employee statements made during the relationship on a related matter, and co-conspirator statements made during and in furtherance of the conspiracy.
Plain English Explanation
Rule 801 defines hearsay and carves out important exclusions. Hearsay is an out-of-court statement offered to prove the truth of what it asserts. The classic example: a witness testifies 'Tom told me the light was red.' If offered to prove the light was actually red, it is hearsay. If offered to prove Tom could speak English, it is not — because it is not being offered for the truth of the matter asserted.
Rule 801(d)(1) excludes certain prior statements by testifying witnesses from the hearsay definition. Prior inconsistent statements are not hearsay if they were given under oath at a prior proceeding (not just casual prior statements). Prior consistent statements are admissible to rebut charges of recent fabrication or improper influence, or to rehabilitate a witness's credibility. Statements of identification — like a lineup identification — are also excluded because they were made when memory was fresh.
Rule 801(d)(2) excludes opposing party statements (formerly called 'admissions'). These include the party's own statements, statements they adopted, statements by authorized spokespersons, statements by agents or employees on matters within the scope of the relationship, and statements by co-conspirators during and in furtherance of the conspiracy. These are admissible against the party who made them and do not need to satisfy any hearsay exception. Opposing party statements are among the most frequently used evidence categories in litigation.
Key Points
- 1Hearsay = out-of-court statement + offered for the truth of the matter asserted
- 2Prior inconsistent statements under oath, prior consistent statements, and identification statements are NOT hearsay under 801(d)(1)
- 3Opposing party statements (admissions) are NOT hearsay under 801(d)(2) — includes individual, adopted, authorized, agent/employee, and co-conspirator statements
- 4The key to any hearsay analysis: is the statement being offered to prove the truth of what it asserts?
- 5Non-hearsay purposes include: effect on the listener, verbal acts, circumstantial evidence of state of mind
Common Exam Issues
- Identifying whether a statement is offered for the truth of the matter asserted or for a non-hearsay purpose
- Applying the co-conspirator statement exclusion — must be made during and in furtherance of the conspiracy
- Prior inconsistent statements: distinguishing those made under oath at a proceeding (801(d)(1)(A) — substantive) from those not under oath (613 — impeachment only)
- Adopted admissions — when does silence constitute adoption of another's statement?
Landmark Cases
- Bourjaily v. United States
- Tome v. United States
- Mahlandt v. Wild Canid Survival & Research Center
Article VIII — Hearsay
This rule is part of Article VIII — Hearsay of the Federal Rules of Evidence.
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