Hearsay: Statements which are not hearsay 801(d)(1) and (2).

Hearsay is a complicated area of evidence. In order to understand hearsay and use it appropriately in court you must know three things: What it hearsay, what are the exceptions to hearsay, and what isn’t hearsay (a.k.a. Non-Hearsayor Not-Hearsay).  F.R.E.801(d)(1) contends with statements which are considered Not-Hearsay.

Remember, hearsay is an out of court statement offered for it’s truth and is excluded because we don’t consider it reliable.

You may be asking yourself why we have any exceptions to the hearsay rule if we prohibit the admission of hearsay because it is unreliable? Answering that question gives us an interesting glimpse of our societal mores and morays.  While we are aware of the inherent risk of reliability in the “Telephone” game that is a hearsay statement, as a society we have determined that there are certain circumstances when that out-of-court statement is more reliable than not, thus eliminating to some extent the risk of unreliability and the need for cross examination.

So let’s take a look at some of the instances in which an out of court statement made by a declarant is more reliable than not. Under F.R.E. 801(d)1 a statement is not hearsay if it is a prior statement by a given witness. Of course this is evidence, so it can’t simply be any statement given by a witness.  Here are the elements:

  1. If the declarant (remember, in hearsay instances the declarant is the person who made the out of court statement being offered into evidence.) has testified at the trial or hearing and;
  2. The declarant was subject to cross-examination concerning the statement at the time the statement was made, and;
  3. the statement is:  inconsistent or consistent with his testimony and is offered to rebut an express or implied charge against him of recent fabrication or improper influence or motive, or;
  4. the statement is one of identification of a person the declarant made after perceiving that person.

So 801(d)(1) identifies three categories of prior statements made by witnesses that are simply “not hearsay”: 1. Statements consistent with the statement the witness is making in court, 2. Statements inconsistent with the statement the witness is making in court, and 3. statements made by the witness that identified someone.  In order for these statements to be considered not hearsay the declarant must be testifying at trial and subject to cross examination when the out of court statement is being offered.

One of the reasons this “not hearsay” treatment for these inconsistent statements is confusing is because the statements themselves aren’t hearsay if used for impeachment purposes.  Remember, out of court statements are only hearsay if they are offered for their truth, if you are dealing with a prior inconsistent statement being offered only to impeach the witness, then it’s truth is irrelevant.  801(d)(1) permits the use of prior inconsistent statements for their truth if the statement was given under oath subject to penalties at a trial, hearing or deposition.

Okay, what does that mean, it can be offered for it’s truth instead of just impeachment?  For example:

At deposition:

Q: What color was the light?

A. It was red.

At trial:

Q: You testified the light was green.

A. Yes.

Q. You gave a deposition in this case?

A. Yes.

Q. At that deposition you testified the light was red.

Objection! Hearsay.

It’s a prior inconsistent statement under 801(d)(1)(A) your honor.

Overruled. The witness may answer.

A. Yes. I did.

Okay yes, you impeached your witness, now the jury sees they made two statements at different times. Bad witness, shame on you! Under impeachment rules, that is all you get to do, but under 801(d)(1)(A), because her statement was made under oath at a deposition, you can introduce it to prove the light was red.

F.R.E. 801(d)(1)(B) prior consistent statements can be used to rehabilitate a witness once they have been impeached, without triggering any hearsay concerns. Again, these prior consistent statements have to have been made at a trial, hearing, or deposition and have to have been made under oath and subject to cross examination.

F.R.E. 801(d)(1)(C) permits the use of prior statements of identification.  These statements of identification do not have to be made in court under oath, because with identification statements we, as a society, believe statements made while perceiving someone are generally more reliable than statements made while pointing to the defendant in a courtroom.

Looking around the court room today do you see the woman who stabbed you?

Why yes I do Prosecutor, she is sitting at the table marked “Defendant.”

For truth finding purposes that statement of identification is much less useful than one made at the scene.

Help! Call the police, that blonde woman with the huge wart on her nose just stabbed me!

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Now moving on to the next type of “not hearsay” statements.  801(d)(2) handles admissions by party opponents, those out of court statements made by parties to the case and offered against them at trial. It is one of the largest hearsay loopholes and allows the court to consider virtually anything a party has ever said or communicated in any way, so long as it is sought to be used against them at trial.  The reasons we allow these admissions into evidence is two-fold, from a policy standpoint it makes sense to make people accountable to their own statements, promises, etc.  Secondly, the risks inherent in hearsay statements, that “Telephone” concern, are reduced greatly by the fact that the person making the statement, or adopting the statement,  is in the courtroom and a party to the case. If the statement was false when it was made or was made outside the party’s control or permission, then the party can explain that in court when the statement is offered.

The rule has two initial elements: 1. it requires that the declarant be a party to the case and 2. it requires that the statement be offered against that party. Once those two elements are met, then the following five types of admissions are considered “not hearsay”:

  1. the party’s statement in either an individual or a representative capacity or;
  2. a statement of which the party has manifested his adoption or belief in its truth; or;
  3. a statement by a person authorized by the party to make a statement concerning the subject or;
  4. a statement by the party’s agent or servant concerning a matter within the scope of the agency or employment, made during the existence of the relationship, or;
  5. a statement by a co-conspirator of a party during the course and in furtherance of the conspiracy.

Each of these five types of admissions are established by the connection between the person who made the statement and the person that statement is offered against at trial.

For 801(d)(2)(a) the statement has to have been made by the declarant and offered against the declarant. That is all that is required. The declarant didn’t have to belive the statement, be sober or able to think clearly, understand what was going on, etc.  All the declarant had to do was speak. As this rule also allows for representative statements things like blog posts, twitter posts, facebook posts, police reports signed by the declarant, insurance forms signed by the declarant, and more can fall into this category.

Defendants house burns down, the insurance agent writes out a statement on the claim form, describing the damage and the cause of the fire. Defendant reads the form, and then signs it in order to get his check.

The insurance statement can be offered into evidence for it’s truth without triggering any hearsay objections because the declarant signed it.

801(d)(2)(b) deals with adoptive admissions which are usually the declarant’s reaction to to a statement or action made by another person. This rule is almost an extension of 801(d)(2)(A) in that the declarant is being held to a belief or statement in which she expressed some sort of agreement, either expressly or by omission.  In this rule, silence can also be considered an admission.

A domestic violence victim is crying in front of the police saying “why did you hit me so hard?” The defendant says nothing.

The fact the defendant said nothing to defend himself in a situation where most people would be falling over backwards doing verbal gymnastics to convince the police it was an accident or they didn’t hit her can be used against him at trial, as an 801(d)(2)(A) admission.

801(d)(2)(C) handles statements made by those people who have been given express authority to make statements on behalf of the party.  A PR person is a good example here, or the spin doctor for a politician.

Congressman Smarm is being tried for perjury on the stand.  He stated clearly in court that he never smoked pot in his life.  The prosecutor offers against him  a statement his campaign manager made while campaigning for him in Boulder, Colorado. “Congressman Smarm may be a politician, but he understands the people.  He supports marijuana for medical reasons and likes to say he would enjoy supporting it once again for recreational ones.”

Because Congressman Smarm has expressly given his campaign manager the right to speak on his behalf, the Congressman can be held accountable for those statements as if they were his own. This is called “Express Authority”.

801(d)(2)(d) concerns itself with statements by the party’s agent or servant concerning a matter within the scope of the agency or employment, made during the existence of the relationship.  These statements come from people who have some sort of business relationship with the party, or agency relationship, and because of their role in the life or business of the party, one would take their statements about their role to be an expression of the party even though they are not expressly authorized to make that statement.

A truck driver gets into an accident and is found to be intoxicated. While at the scene he says “I shouldn’t have had that third beer before work.”

That statement can be offered against the employer to prove liability. It is considered “Apparent Authority”.

Finally, 801(d)(2)(e) deals with statements by a co-conspirator of a party during the course and in furtherance of the conspiracy. Here the co-conspirator’s statements may be offered against a party without evidence of authorization for the declarant to speak for that party so long as the Court has additional facts that prove the existence of a conspiracy and the Court considers the circumstances surrounding the statement.  Note that the statement had to have been made in furtherance of the conspiracy, so if the statement was made after the conspiracy was over, the admission would trigger hearsay objections.

Three law school buddies are sneaking into the library to tear all the relevant pages out of the statute books in the stacks.  After tearing out the pages in all the books in one part of the library, Student A and B are ready to leave, then Student C says “Wait, I see a bunch of statute books on the table in the study room, let’s make sure to get those pages out too.”

If the law students were tried for conversion, vandelism, or any myriad of other acts, Student C’s statements could be offered against A and B as proof that they were taking pages out of statute books in the library. (Be careful with whom you conspire.)

These prior statements and admissions are the first set of out of court statements that are not considered hearsay because they are considered less unreliable than other out of court statements.  F.R.E. 803 and 804 deal with hearsay exceptions.  Those rules express society’s belief as to under which circumstances we are more likely to tell the truth. These rules will be discussed in later articles.

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Sources for this Article include:

Evidence, Seventh Edition, Arthur Best

Prof. Karen Steinhauser’s Evidence Class, University of Denver Sturm College of Law

The Federal Rules of Evidence.

The Colorado Rules of Evidence.

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About Misty Ewegen

I am a writer, a jeweler, and a Spoonie. Before becoming a Spoonie I was a very busy high achieving attorney and advocate bent on saving the world. Now I'm struggle to redefine my life to fit within my reduced energy level. Some days are better than others. I have fibromyalgia and chronic daily migraine.
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6 Responses to Hearsay: Statements which are not hearsay 801(d)(1) and (2).

  1. Wrong wrong says:

    Your rule statement for F.R.E. 801(d)(1)(B) is wrong. A prior consistent statement does not have to made while under penalty of perjury!

  2. If I understand this hearsay law correctly, then all scientific evidence is ruled out from court cases, unless you can get every contributor to the research that is being cited to be available for testimony. For example, if I use someone else’s statistical method in my research to argue a point, I cannot use the research findings in court unless I can get the developer of the statistical method to attest to the method. Now I’m sure it isn’t this bad, but this doctrine is so fuzzy that it’s hard to see its full implications. Perhaps this is further reason to support Hanushek’s (2009) argument against courts being involved in school policies!

    • Misty Ewegen says:

      Richard, experts are permitted to argue the points without disclosing the underlying research. They have to be able to make it available, but they certainly don’t have to provide the creators of the underlying studies in making their determinations. They simply have to be able to cite a source.

  3. Solo says:

    So how does hearsay work if one person overhears a partial conversation between two people. Isn’t this like double hearsay?

    • Misty Ewegen says:

      Double Hearsay is when you have an out of court statement referencing another out of court statement and they are being offered for their truth.

      In order for double hearsay to be admissible each layer of the hearsay has to fit into an exception, or they have to not be offered for their truth.

      You would walk through the Hearsay process with first, the statement that was overheard, and then the statement by the person who overheard it in order to see if you can admit the evidence.

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