Also known as: FRE 801 · Fed. R. Evid. 801 · Rule 801 · Rule 801 FRE
Written by attorneys — see sources below.
A federal evidence rule that defines hearsay as a statement the declarant does not make while testifying at the current trial or hearing and that a party offers to prove the truth of the matter asserted. The rule then excludes from the hearsay definition certain prior statements by testifying witnesses and statements by party opponents.
Fumiko Fujimoto testified that she never saw loose scaffolding. Defense counsel later called a coworker to describe Fujimoto's recorded interview contradicting that testimony. Because Fujimoto had already been confronted with the interview on cross-examination, the court admitted the coworker's description as extrinsic evidence.
Felipe Figueroa testified that the valve had malfunctioned for months. After the defense implied he fabricated the claim to obtain a promotion, plaintiffs offered his earlier memo repeating the same warning. The memo predated any alleged motive and was admitted as nonhearsay.
Felicity French's out-of-court statement was admitted against the company under Rule 801(d)(2). Defense counsel then introduced her later inconsistent email to impeach her credibility even though she never testified at trial.
Fiona Foster identified the driver at the scene but later could not recall the basis for the identification. The prosecution offered her earlier lineup statement. Because Foster was subject to cross-examination, the statement was admitted as nonhearsay.
Farah Fox's recorded call was offered against her alleged coconspirator. The court found by a preponderance of the evidence that a conspiracy existed and that both participated, allowing admission of the call as nonhearsay.
In May 1984, Clarence Greathouse, working as an informant for the Federal Bureau of Investigation, arranged to sell a kilogram of cocaine to Angelo Lonardo. Lonardo agreed that he would find individuals to distribute the drug. When the sale became imminent, Lonardo stated in a tape-recorded telephone conversation that he had a "gentleman friend" who had some questions to ask about the cocaine. In a subsequent telephone call, Greathouse spoke to the "friend" about the quality of the drug and the price. Greathouse then spoke again with Lonardo, and the two arranged the details of the purchase. They agreed that the sale would take place in a designated hotel parking lot, and Lonardo would transfer the drug from Greathouse's car to the "friend," who would be waiting in the parking lot in his own car. Greathouse proceeded with the transaction as planned. FBI agents arrested Lonardo and petitioner immediately after Lonardo placed a kilogram of cocaine into petitioner's car in the hotel parking lot. In petitioner's car, the agents found over $20,000 in cash. Petitioner was charged with conspiring to distribute cocaine, in violation of 21 U.S.C. § 846. Petitioner was also charged with possession of cocaine with intent to distribute, a violation of 21 U.S.C. § 841(a)(1). The Government introduced, over petitioner's objection, Angelo Lonardo's telephone statements regarding the participation of the "friend" in the transaction. The United States District Court for the Southern District of Ohio found that, considering the events in the parking lot and Lonardo's statements over the telephone, the Government had established by a preponderance of the evidence that a conspiracy involving Lonardo and petitioner existed. The court also found that Lonardo's statements over the telephone had been made in the course of and in furtherance of the conspiracy. Accordingly, the trial court held that Lonardo's out-of-court statements satisfied Rule 801(d)(2)(E) and were not hearsay. Petitioner was convicted on both counts and sentenced to 15 years. The United States Court of Appeals for the Sixth Circuit affirmed the conviction. The Supreme Court granted certiorari to review the admission of the recorded statements and related evidentiary and constitutional questions.
View caseFrancois Fortier threatened a witness to prevent testimony. The prosecution offered the witness's prior statement. Because Fortier's misconduct caused the witness's unavailability, the statement was admitted despite the confrontation issue.
On September 29, 2002, Dwayne Giles shot his ex-girlfriend Brenda Avie six times outside the garage of his grandmother’s house. Giles’ niece heard the two speaking in conversational tones before Avie yelled “Granny” several times and a series of gunshots sounded. Giles’ niece and grandmother ran outside and saw Giles standing near Avie with a gun in his hand. Avie had not been carrying a weapon. Giles fled the scene and was apprehended by police about two weeks later. Three weeks before the shooting, Avie spoke to a police officer responding to a domestic-violence report. Avie, who was crying, told the officer that Giles had accused her of having an affair, grabbed her by the shirt, lifted her off the floor, choked her, punched her in the face and head, and threatened her with a folding knife. At trial, prosecutors sought to introduce these statements. Over Giles’ objection, the trial court admitted them under California Evidence Code section 1370. Giles testified that he had acted in self-defense. He described Avie as jealous and violent, said she had threatened to kill him and his new girlfriend on the day of the shooting, and claimed she charged at him before he fired. A jury convicted Giles of first-degree murder. While Giles’ appeal was pending, the Supreme Court decided Crawford v. Washington. The California Court of Appeal held that admission of Avie’s statements did not violate the Confrontation Clause because Giles had forfeited his confrontation right by committing the murder. The California Supreme Court affirmed on the same ground. The U.S. Supreme Court granted certiorari.
View caseThe declarant must testify and be subject to cross-examination about the statement. The statement must be consistent with the testimony and offered either to rebut a charge of recent fabrication or improper motive or to rehabilitate credibility after an attack on another ground such as bias or faulty memory.
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Extrinsic evidence may be introduced without the usual opportunity to explain or deny only when the statement qualifies as an opposing party's statement under Rule 801(d)(2). In all other cases the witness must be given an opportunity to explain or deny the statement.
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The identification remains admissible as nonhearsay provided the witness testifies and is subject to cross-examination about the statement. Present recollection of the reasons for the identification is not required.
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The court must find by a preponderance of the evidence that a conspiracy existed and that the declarant and the party against whom the statement is offered participated in it. The coconspirator's own statement may be considered in making that determination.
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…conditionally admitted the recorded conversation into evidence under the hearsay exception for statements of co-conspirators, Federal Rule of Evidence 801(d)(2)(E), and petitioner was convicted. The Court of Appeals for the Sixth Circuit affirmed the conviction, holding that the admission of the recorded statements did not violate…