RULE 801. DEFINITIONS THAT APPLY TO THIS ARTICLE; EXCLUSIONS FROM HEARSAY
1 The following definitions apply under this Article:
2 (a) Statement. "Statement" means a person's oral assertion, written
3 assertion, or nonverbal conduct, if the person intended it as an assertion.
4 (b) Declarant. "Declarant" means the person who made the statement.
5 (c) Hearsay. "Hearsay" means a statement that:
6 (1) the declarant does not make while testifying at the current trial or
7 hearing; and
8 (2) a party offers in evidence to prove the truth of the matter asserted in the
10 (d) Statements That Are Not Hearsay. A statement that meets the following
11 conditions is not hearsay:
12 (1) A Declarant-Witness's Prior Statement. The declarant testifies and is
13 subject to cross-examination about a prior statement, and the statement:
14 (A) is inconsistent with the declarant's testimony and, if offered in a
15 criminal proceeding, was given under penalty of perjury at a trial, hearing, or other
16 proceeding or in a deposition;
17 (B) is consistent with the declarant's testimony and is offered:
18 (i) to rebut an express or implied charge that the declarant recently
19 fabricated it or acted from a recent improper influence or motive in so testifying;
21 (ii) to rehabilitate the declarant's credibility as a witness when attacked on
22 another ground; or
23 (C) identifies a person as someone the declarant perceived earlier.
24 (2) An Opposing Party's Statement. The statement is offered against an
25 opposing party and:
26 (A) was made by the party in an individual or representative capacity;
27 (B) is one the party manifested that it adopted or believed to be true;
28 (C) was made by a person whom the party authorized to make a statement
29 on the subject;
30 (D) was made by the party's agent or employee on a matter within the scope
31 of that relationship and while it existed; or
32 (E) was made by the party's coconspirator during and in furtherance of the
34 The statement must be considered but does not by itself establish the
35 declarant's authority under (C); the existence or scope of the relationship under
36 (D); or the existence of the conspiracy or participation in it under (E).
37 EXPLANATORY NOTE
38 Rule 801 was amended, effective July 1, 1981; March 1, 1990; March 1,
39 2014; March 1, 2016.
40 The definition of hearsay contained in this rule is dependent, in part, upon
41 the definition of a statement contained in subdivision (a). In this regard, it should
42 be noted that nonverbal conduct, to be a statement, and thus hearsay, must be
43 intended by the party to be an assertion. Non assertive conduct is not a statement
44 and therefore not objectionable as hearsay. Thus, pointing out a suspect in
45 response to the question, "Who did it?" is assertive conduct and, if it otherwise
46 falls within the definition, hearsay. Conversely, the act of opening an umbrella is
47 not intended to be assertive, is not hearsay, and may be offered as substantive
48 evidence that rain was falling at a certain place and time.
49 Hearsay is defined in subdivision (c) as a statement made by a declarant,
50 other than one made at the trial or hearing offered to prove the truth of the matter
51 asserted. This definition is of two distinct parts. The first is that the statement is
52 one not made at the trial in which it is offered.
53 The second is that the statement must be offered to prove the truth of its
54 content, i.e., the matter asserted in the statement. If offered for other purposes, e.g.,
55 to show that the declarant in fact made a statement any statement and, thus, was
56 conscious at a particular time, the statement is not objectionable as hearsay. The
57 reason for this requirement is that it is only when a statement is offered to prove
58 the truth of the matter asserted that there is a lack of the safeguards used to insure
59 credibility of the declarant. It is this lack of an oath and cross-examination of the
60 declarant that warrants the exclusion of evidence as hearsay.
61 Subdivision (d) exempts from the hearsay definition, and allows as
62 substantive evidence, two types of statements which are technically hearsay. The
63 reason for the exemptions are that the dangers normally attendant to receiving
64 hearsay statements are at least partially removed in the exempted situations. In
65 paragraph (d)(1), the opportunity to cross-examine the declarant is present. In
66 paragraph (d)(2), the nature of the adversary system strengthens the reliability of a
67 statement by an opposing party.
68 Paragraph (d)(1) follows Rule 801, Uniform Rules of Evidence, allowing
69 prior inconsistent statements always to be used as substantive evidence in civil
70 cases and, if the prior statement was made under oath in criminal cases. This varies
71 from Rule 801 of the Federal Rules of Evidence, which requires that the prior
72 statement be made under oath in all cases. See the discussion of Rule 801, Federal
73 Rules of Evidence, in State v. Igoe, 206 N.W.2d 291 (N.D. 1973).
74 Subparagraph (d)(1)(B) was amended, effective March 1, 2016, to allow
75 use of a prior consistent statement to rehabilitate the declarant's credibility as a
76 witness when attacked on another ground. The change was based on the 2014
77 amendment to Fed.R.Ev. 801.
78 Subparagraph (d)(1)(C) was added [effective July 1, 1981] to comply with
79 the federal rule. This provision was omitted from the original promulgation of the
80 Federal Rules of Evidence but was added soon thereafter.
81 Rule 801 was amended, effective March 1, 1990. The amendment is
82 technical in nature and no substantive change is intended.
83 Rule 801 was amended, effective March 1, 2014, in response to the
84 December 1, 2011, revision of the Federal Rules of Evidence. The language and
85 organization of the rule were changed to make the rule more easily understood and
86 to make style and terminology consistent throughout the rules. There is no intent to
87 change any result in any ruling on evidence admissibility.
88 SOURCES: Joint Procedure Committee Minutes of April 23-24, 2015, page
89 27; September 27, 2012, page 21; March 24-25, 1988, pages 15-16; December 3,
90 1987, pages 6-7 and 15; May 21-22, 1987, pages 6-7; February 19-20, 1987, pages
91 10-17;September 18-19, 1980, pages 18-20; March 27-28, 1980, pages 11-12;
92 January 29, 1976, page 18; October 1, 1975, page 6; Fed.R.Ev. 801; Rule 801,
93 SBAND proposal.