(Alternative 2, Reaffirming Lind)
RULE 801. DEFINITIONS
The following definitions apply under this Article:
(a) Statement. A "statement" is (1) an oral or written assertion or (2) nonverbal conduct of a person, if it is intended by the person as an assertion.
(b) Declarant. A "declarant" is a person who makes a statement.
(c) Hearsay. "Hearsay" is 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.
(d) Statements Which Are Not Hearsay. A statement is not hearsay if:
(1) Prior Statement by Witness. The declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is (i) inconsistent with the declarant's testimony but, if offered in a criminal proceeding, was given under oath and subject to the penalty of perjury at a trial, hearing, or other proceeding, or in a deposition, or (ii) consistent with the declarant's testimony and is offered to rebut an express or implied charge against the declarant of recent fabrication or improper influence or motive, or (iii) one of identification of a person made after perceiving the person; or
(2) Admission by Party-Opponent. The statement is offered against a party and is (i) the party's own statement, in either an individual or a representative capacity, (ii) a statement of which the party has manifested an adoption or belief in its truth, (iii) a statement by a person authorized by the party to make a statement concerning the subject, (iv) 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 (v) a statement by a co-conspirator of a party during the course and in furtherance of the conspiracy. The statement may not be considered to establish the declarant's authority under clause (iii), the agency or employment relationship and scope thereof under clause (iv), or the existence of the conspiracy and the participation therein of the declarant and the party against whom the statement is offered under clause (v).
Rule 801 was amended, effective July 1, 1981; March 1, 1990; ___________________.
The definition of hearsay contained in this rule is dependent, in part, upon the definition of a statement contained in subdivision (a). In this regard, it should be noted
thatnonverbal conduct, to be a statement, and thus hearsay, must be intended by the party to be an assertion. Nonassertive conduct is not a statement and therefore not objectionable as hearsay. Thus, pointing out a suspect in response to the question, "Who did it?" is assertive conduct and, if it otherwise falls within the definition, hearsay. Conversely, the act of opening an umbrella is not intended to be assertive, is not hearsay, and may be offered as substantive evidence thatrain was falling at a certain place and time.
Hearsay is defined in subdivision (c) as a statement made by a declarant, other than one made at the trial or hearing offered to prove the truth of the matter asserted. This definition
isconsists of two distinct parts. The first is thatFirst, the statement is one not made at the trial in which it is offered.
The second is thatSecond, the statement must be offered to prove the truth of its content, i.e., the matter asserted in the statement. If offered for other purposes, e.g., to show that the declarant in fact made a statement or any statement and, thus, was conscious at a particular time, the statement is not objectionable as hearsay. See e.g., Chester v. Einerson, 76 N.D. 205, 34 N.W.2d 437 (1948).The reason for this requirement is thatit is only when a statement is offered to prove the truth of the matter asserted that there is a lack of the safeguards used to insure credibility of the declarant. It is thisthe lack of an oath and cross-examination of the declarant that warrants the exclusion of evidence as hearsay.
It should be noted
thatsubdivision (c) does not define as hearsay statements made out of the presence of a party against whom offered. The presence or absence of a party is not, nor has it ever been, a criterion by which hearsay is defined. It should be discarded as a "remarkably persistent bit of courthouse folklore." McCormick on Evidence, § 246 at 586 (2d ed. 1972).
Subdivision (d) exempts from the hearsay definition, and allows as substantive evidence, two types of statements which are technically hearsay. The reason for the exemptions are
thatthe dangers normally attendant to receiving hearsay statements are at least partially removed in the exempted situations. In subdivision (d)(1), the opportunity to cross-examine the declarant is present. In subdivision (d)(2), the nature of the adversary system strengthens the reliability of an admission by a party-opponent.
Subdivision (d)(1)(i) follows Rule 801, Uniform Rules of Evidence, allowing prior inconsistent statements always to be used as substantive evidence in civil cases and, if the prior statement was made under oath in criminal cases. This varies from Rule 801 of the Federal Rules of Evidence, which requires that the prior statement be made under oath in all cases. See the discussion of Rule 801, Federal Rules of Evidence, in State v. Igoe, 206 N.W.2d 291 (N.D. 1973).
Subdivision (d)(1)(iii) was added [effective July 1, 1981]
to comply withfrom the federal rule. This provision was omitted from the original promulgation of the Federal Rules of Evidence but was added soon thereafter.
Subdivision (d)(2), for the reasons stated above, exempts from the hearsay definition admissions of a party-opponent. This comports, generally, with the philosophy expressed by the North Dakota Supreme Court. See the discussion of the comparable federal rules in Starr v. Morsette, 236 N.W.2d 183 (N.D. 1975).
Rule 801 was amended, effective March 1, 1990. The amendment is technical in nature and no substantive change is intended.
Rule 801 was amended, effective ________________, to affirm State v. Lind, 322 N.W.2d 826, 838 (N.D. 1982) and to clarify the preliminary factual determination for admission of an out-of-court statement must be based upon independent evidence notwithstanding Bourjaily v. United States, 483 U.S. 171 (1987).
SOURCES: Minutes of Procedure Committee: _________________________; March 24-25, 1988, pages 15-16; December 3, 1987, pages 6-7 and 15; May 21-22, 1987, pages 6-7; February 19-20, 1987, pages 10-17; September 18-19, 1980, pages 18-20; March 27-28, 1980, pages 11-12; January 29, 1976, page 18; October 1, 1975, page 6; Rule 801, Federal Rules of Evidence; Rule 801, SBAND proposal.