''Not Hearsay'' Under the Federal Rules of Evidence

Federal Rules of Evidence, Rule 801 defines hearsay 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. Generally, these statements are inadmissible if they do not fall with a very specific exception to the hearsay rule. However, Rule 801(d) lists types of statements that, despite the fact that they were made out of court, are not considered hearsay and are admissible. The reason for their admissibility is that this very limited subset of statements are considered reliable.

Rule 801(d)(1) delineates “declarant-witness’s prior statements” as not hearsay.

Rule 801(d)(1)(A) states that introducing statements made previously under oath that are now inconsistent with the witness’s testimony is not considered hearsay. For example, in a burglary trial, a witness initially testified during the preliminary hearing that they saw someone other than the defendant breaking into the house. However, during the trial, they testify that it was the defendant they saw. The prior sworn statement becomes admissible to impeach the credibility of the witness’s testimony.

Rule 801(d)(1)(B)(i) states that a consistent statement can be introduced to refute any accusation of recent fabrication or influence when a witness’s credibility is questioned. For instance, the friend of a domestic violence victim made a statement to the police immediately after the defendant was arrested where she said she overheard him abusing her friend. At trial, the witness testifies consistently to the statement she made to police, but is accused by the defense of accepting payment for her testimony by the victim. The consistent prior statement can be introduced to counter the accusation of recent fabrication, despite the fact that the statement to the police was an out-of-court statement.

Rule 801(d)(1)(B)(ii) states that a consistent statement can also be used to rehabilitate a witness’s credibility when attacked on other grounds. For example, in a kidnapping trial, a witness testifies that he told police he saw the kidnapping. The defense questions the witness’s mental capacity, arguing that he has short term memory loss and can’t possibly remember observing the kidnapping. The prosecution could introduce the witness’s prior statement to police and argue that even though he now has short term memory loss, he made a prior consistent statement and should be viewed as credible.

Rule 801(d)(1)(C) states that statements identifying a person the declarant perceived earlier are also exempt from being classified as hearsay. For instance, a witness who saw an individual fleeing the scene of an arson and later identifies that person in court is not hearsay. This identification serves to substantiate the witness’s perception during the event and is admissible as evidence.

Rule 801(d)(2) delineates “opposing party statements” as not hearsay.

For example, Rule 801(d)(2)(A) states that a statement made by the defendant in their individual or representative capacity is not hearsay. For example, in a homicide case, the prosecution introduces a statement made by the defendant to a witness immediately after the incident. The accused, while in custody, stated to a police officer, “I didn’t mean to hurt anyone; it was an accident.” This statement is admissible and is not hearsay.

Rule 801(d)(2)(B) states that if a statement is expressly or implicitly adopted or believed to be true by the party, it falls outside the hearsay boundary. For example, in a drug trafficking case, the prosecution offers a recorded conversation in which the defendant, a suspected drug dealer, is heard agreeing to deliver a specific quantity of narcotics. The prosecution argues that the defendant's agreement during the conversation manifests their belief in the truth of the intended drug transaction. This statement, by adopting or affirming the terms of the deal, can be admitted against the defendant.

Rule 801(d)(2)(C) states that statements made by individuals authorized by the party to speak on the subject matter are admissible. For instance, the CEO of a company being investigated for fraud sends an email discussing their billing practices. That statement is admissible against the company in the fraud trial.

Rule 801(d)(2)(D) states that when an employee or agent of the party makes a statement within the scope of their relationship while it exists, it is not considered hearsay. For example, in a robbery case, an employee of a store, who was present during the robbery, provides a detailed statement about the events that occurred. This employee was working within the scope of their employment and directly witnessed the crime. The employee's statement, detailing the actions of the accused during the robbery while within the employment relationship, would be admissible as non-hearsay against the accused.

Rule 801(d)(2)(E) states that statements made by a party’s coconspirator during and in furtherance of the conspiracy are not hearsay. For example, in a counterfeiting case, one member of a criminal organization implicates another member by providing a recorded conversation where the accused discussed the illegal acts being committed by their group. The statement made by the co-conspirator, furthering the aims of the criminal enterprise, can be admitted against the accused as a statement demonstrating their involvement in the conspiracy.

If you have been charged a crime, it is necessary that you discuss your case immediately with a knowledgeable and aggressive criminal defense attorney as soon as possible. As a former Deputy District Attorney with over 14 years of prosecutorial experience, Los Angeles criminal defense attorney Michael Kraut has extensive knowledge of the Federal Rules of Evidence and the concept of hearsay, which could be critical for your case.

For more information about the criminal justice process, and to schedule your free consultation, contact Michael Kraut at the Kraut Law Group located at 6255 Sunset Boulevard, Suite 1520, Los Angeles, CA 90028. Mr. Kraut can be reached 24/7 at 888-334-6344 or 323-464-6453.