Also known as: nonhearsay hearsay · nonhearsay · hearsay exemption
Written by attorneys · grounded in primary & secondary sources — see below
A category of out-of-court statements that satisfy the definition of hearsay yet are declared nonhearsay by Federal Rule of Evidence 801(d) and therefore admissible for their truth without satisfying an exception.
Select any source to read its text and confirm it supports the definition.
Neil Nair testified that his supervisor directed unsafe work practices. Defense counsel implied on cross-examination that Neil invented the account to obtain a cooperation deal. Neil's training log written two weeks earlier recorded the identical direction. The court admitted the log to show consistency before any cooperation motive arose.
Nora Nash identified the defendant in a lineup shortly after the robbery. At trial Nora could not recall the basis for her identification. The prosecutor offered the lineup administrator's testimony recounting the identification. The court admitted the evidence because Nora remained available for cross-examination about the statement.
Nicole Navarro was charged with conspiracy to distribute narcotics. The government offered recorded statements by an alleged co-conspirator discussing drug quantities and delivery times. The court first determined that a conspiracy existed and that the declarant and Navarro were members. It then admitted the statements as nonhearsay attributable to Navarro.
Nolan Nunez faced charges after a sexual assault. The prosecution's expert testified that a DNA profile generated by an outside laboratory matched Nolan. The expert explained that she used the profile only to form her own independent opinion about the statistical frequency. The court permitted the testimony because the profile itself was not offered for its truth.
The Advisory Committee chose the exemption approach to avoid practical disruption after the designation became ingrained. Whether labeled exemption or exception, the result remains the same: the statement is admissible for its truth.
Supporting sources
The statement must have been made before the alleged motive to fabricate arose. A statement made after the motive developed cannot rebut the charge because it may itself be the product of that motive.
…of reliability that this exemption from the hearsay definition possesses. Third, because the Court alters the traditional hearsay exemption — especially an aspect of it that contributes to the reliability of an admitted statement — I do not believe that the Court can rely on the "firmly rooted hearsay exception" rationale, see…
…constitutional right to confrontation. This Court ensures that an out-of-court statement was introduced for a “legitimate, nonhearsay purpose” before relying on the not-for-its-truth rationale to dismiss the Confrontation Clause’s application. See Tennessee v. Street , 471 U. S. 409, 417. Statements introduced to explain…
…against the declarant of recent fabrication or improper influence or motive." Rule 801 defines prior consistent statements as nonhearsay
Supporting sources
Yes. The rule requires only that the witness be subject to cross-examination about the statement. Present recollection of the reasons for the identification is not necessary.
Supporting sources
The court must find by a preponderance that a conspiracy existed and that the declarant and the party against whom the statement is offered were members. The statement itself may be considered in making that preliminary determination.
Supporting sources
Disclosure is permitted when the profile is used solely as the basis for the expert's independent opinion and is not offered for its truth. The Confrontation Clause analysis turns on whether the profile was created for the purpose of proving a fact at trial.
Supporting sources