RULE 801. DEFINITIONS THAT APPLY TO THIS ARTICLE; EXCLUSIONS FROM HEARSAY
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.
(a) Statement. "Statement" means a person's oral assertion, written assertion, or nonverbal conduct, if the person intended it as an assertion.
(b) Declarant. A "declarant" is a person who makes a
(b) Declarant. "Declarant" means the person who made the 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
(c) Hearsay. "Hearsay" means a statement that:
(1) the declarant does not make while testifying at the current trial or hearing; and
(2) a party offers in evidence to prove the truth of the matter asserted in the statement.
(d) Statements which are not hearsay. A statement is not
(d) Statements That Are Not Hearsay. A statement that meets the following conditions is not hearsay:
(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
(1) A Declarant-Witness's Prior Statement. The declarant testifies and is subject to cross-examination about a prior statement, and the statement:
(A) is inconsistent with the declarant's testimony and, if offered in a criminal proceeding, was given under penalty of perjury at a trial, hearing, or other proceeding or in a deposition;
(B) is consistent with the declarant's testimony and is offered to rebut an express or implied charge that the declarant recently fabricated it or acted from a recent improper influence or motive in so testifying; or
(C) identifies a person as someone the declarant perceived earlier.
(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.
(2) An Opposing Party's Statement. The statement is offered against an opposing party and:
(A) was made by the party in an individual or representative capacity;
(B) is one the party manifested that it adopted or believed to be true;
(C) was made by a person whom the party authorized to make a statement on the subject;
(D) was made by the party's agent or employee on a matter within the scope of that relationship and while it existed; or
(E) was made by the party's coconspirator during and in furtherance of the conspiracy.
The statement must be considered but does not by itself establish the declarant's authority under (C); the existence or scope of the relationship under (D); or the existence of the conspiracy or participation in it under (E).
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 that nonverbal 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 that rain 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
is of two distinct parts. The first is that the statement is one not made at the trial in which it
is offered. The second is that 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 - any statement - and, thus, was conscious at a particular
time, the statement is not objectionable as hearsay.
See e.g., Chester v. Einarson, 76
205, 34 N.W.2d 418 (1948). The reason for this requirement is that it 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 this lack of an oath and
cross-examination of the declarant that warrants the exclusion of evidence as
hearsay. It should be noted that subdivision (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
two types of statements which are technically hearsay. The reason for the exemptions are that
the dangers normally attendant to receiving hearsay statements are at least partially removed
in the exempted situations. In
subdivision paragraph (d)(1), the
opportunity to cross-examine
the declarant is present. In subdivision paragraph (d)(2), the
nature of the adversary system
strengthens the reliability of an admission by a party-opponent a
statement by an opposing
party. Subdivision Paragraph
(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) Subparagraph
(d)(1)(C) was added, [effective July 1,
1981 ], to
comply with 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 ______________, in response to the December 1, 2011, revision of the Federal Rules of Evidence. The language and organization of the rule were changed to make the rule more easily understood and to make style and terminology consistent throughout the rules. There is no intent to change any result in any ruling on evidence admissibility.
Sources: Joint Procedure Committee Minutes
of _______________; 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
Fed.R.Ev. 801, Federal
Rules of Evidence; Rule 801, SBAND proposal.