Hearsay Rule and Definition (FRE 801)
What is the Hearsay Rule and Definition (FRE 801)?
Hearsay is an out-of-court statement offered to prove the truth of the matter asserted. It is generally inadmissible unless an exception or exclusion applies. FRE 801(d) defines certain statements as non-hearsay, including prior statements of witnesses and party admissions.
Definition
The hearsay rule is one of the most fundamental and complex doctrines in evidence law. Under FRE 801(a)-(c), hearsay is defined as a statement — an oral assertion, written assertion, or nonverbal conduct intended as an assertion — made by a declarant who is not testifying at the current trial or hearing, offered in evidence to prove the truth of the matter asserted in the statement. FRE 802 then provides the exclusionary rule: hearsay is not admissible unless a federal statute, the Federal Rules of Evidence, or other Supreme Court rules provide otherwise.
The rationale for excluding hearsay rests on concerns about reliability. When a statement is offered for its truth, the factfinder needs to assess the declarant's perception, memory, narration, and sincerity. Cross-examination is the traditional safeguard for testing these testimonial qualities, and the hearsay declarant is not available for cross-examination in court.
FRE 801(d) carves out two categories that are defined as non-hearsay (not merely exceptions to the hearsay rule). FRE 801(d)(1) covers certain prior statements by a testifying witness: prior inconsistent statements given under oath at a proceeding, prior consistent statements offered to rebut charges of recent fabrication, and statements of identification. FRE 801(d)(2) covers opposing party statements (formerly called admissions), including individual statements, adopted statements, authorized statements, agent/employee statements made within the scope of the relationship, and co-conspirator statements made during and in furtherance of the conspiracy. Party admissions are admissible regardless of whether the party had personal knowledge.
Key Elements
- 1A 'statement' exists: an oral assertion, written assertion, or nonverbal conduct intended as an assertion (FRE 801(a))
- 2The statement was made by a 'declarant': a person who made the statement (FRE 801(b))
- 3The declarant is not testifying at the current trial or hearing
- 4The statement is offered in evidence to prove the truth of the matter asserted (FRE 801(c))
- 5Hearsay is inadmissible unless an exception, exclusion, or other rule provides otherwise (FRE 802)
- 6Certain statements are defined as non-hearsay: prior witness statements (801(d)(1)) and opposing party statements (801(d)(2))
Landmark Cases
Bourjaily v. United States
483 U.S. 171 (1987)
Held that co-conspirator statements under 801(d)(2)(E) require the court to determine the existence of the conspiracy by a preponderance, and the statement itself may be considered in making that determination.
Tome v. United States
513 U.S. 150 (1995)
Held that prior consistent statements under 801(d)(1)(B) are admissible only if made before the alleged motive to fabricate arose.
Mahlandt v. Wild Canid Survival & Research Center
588 F.2d 626 (8th Cir. 1978)
Leading case on party admissions (801(d)(2)), holding that an employee's note and an agent's statement were admissible against the employer even without personal knowledge.
United States v. Owens
484 U.S. 554 (1988)
Held that a prior identification statement is admissible under 801(d)(1)(C) even if the witness cannot remember the basis for the identification at trial.
Exam Tips
- Always ask three questions: (1) Is it a statement? (2) Was it made out of court? (3) Is it offered for the truth of the matter asserted? If any answer is no, it is not hearsay.
- If the statement is not offered for its truth but for another purpose (verbal act, effect on listener, state of mind, impeachment), it is not hearsay at all — no exception needed.
- Party admissions (801(d)(2)) are the most commonly tested non-hearsay category — remember they do not require personal knowledge and are admissible even if self-serving when made.
- Watch for 'hearsay within hearsay' (FRE 805): each layer must independently satisfy a hearsay exception or exclusion.
Common Mistakes to Avoid
- Confusing non-hearsay purposes (e.g., effect on the listener, verbal acts) with hearsay exceptions — if the statement is not offered for its truth, it is simply not hearsay and needs no exception.
- Calling party admissions a 'hearsay exception' — under the Federal Rules they are defined as non-hearsay under 801(d)(2), not an exception under 803 or 804.
- Forgetting that hearsay can include written statements and assertive conduct, not just spoken words.
Memory Aid
TOMA: Truth Of the Matter Asserted — if not offered for TOMA, it is not hearsay.