Also known as: definitional non-hearsay · nonhearsay · non-hearsay
Written by attorneys · grounded in primary & secondary sources — see below
A category of out-of-court statements that the Federal Rules of Evidence exclude from the hearsay definition by classifying them as nonhearsay when offered for specified purposes such as rebutting charges of recent fabrication or proving prior identification.
Dominic Drake testified that Destiny Davis caused the warehouse fire. Defense counsel implied Drake fabricated the account after Davis refused to pay him for overtime. Drake's earlier email to a colleague describing the same events, sent before any payment dispute arose, was offered to support his testimony.
Deanna Davenport was robbed at gunpoint. At trial she could not recall the robber's face but confirmed she had identified Diego Duarte in a lineup weeks earlier. The prosecution offered the lineup identification to prove Duarte was the perpetrator.
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Dominion Capital employees planned to inflate invoices. One recorded call between two participants was introduced against a third charged participant to show the scope of the scheme after the court found sufficient independent evidence of the conspiracy.
In a sexual assault prosecution, an expert testified that a DNA profile generated by an outside lab matched the defendant. The report itself was not offered for its truth but to explain the basis of the expert's opinion that the profile was reliable.
A prior consistent statement qualifies as definitional nonhearsay under Rule 801(d)(1)(B) only when offered to rebut an express or implied charge of recent fabrication or improper motive and only if made before the alleged motive arose.
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No. A prior identification remains admissible as definitional nonhearsay under Rule 801(d)(1)(C) even if the witness cannot recall the basis for the identification, provided the witness is available for cross-examination about the statement.
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The statement must predate the alleged motive to fabricate. Statements made after the motive arose do not qualify as definitional nonhearsay under Rule 801(d)(1)(B).
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…concluded that the trial court’s finding that a conspiracy existed was not clearly erroneous. Pp. 184–188. 3. The admission of nonhearsay evidence of a co-conspirator’s statement does not violate the Confrontation Clause. Tennessee v. Street , 471 U. S. 409. Pp. 188–189. 4. In determining the admissibility of a…