Also known as: non-hearsay · nonhearsay · nonhearsay statements
Written by attorneys · grounded in primary & secondary sources — see below
An out-of-court statement that satisfies one of the conditions listed in Federal Rule of Evidence 801(d). The statement therefore falls outside the hearsay definition even though the declarant made it while not testifying at the current trial or hearing and even though a party offers it to prove the truth of the matter asserted.
Noelle North testified at trial that she never saw loose scaffolding. Jasper confronted her with her earlier deposition in which she stated under oath that she had warned the site superintendent about the loose planks. The court admitted the deposition testimony for its truth because the declarant testified and faced cross-examination and the prior statement was inconsistent and given under penalty of perjury.
Nyah Ndlovu testified that the farm used banned pesticide. Defense counsel implied she fabricated the account after termination to help the plaintiff. The plaintiff offered emails Nyah sent six months earlier repeating the identical account. The court admitted the emails for their truth because they predated any alleged motive to fabricate.
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Nathan Nguyen testified at trial but could not recall why he had identified Nolan Nunez as the driver. The prosecution offered the earlier lineup identification. The court admitted the identification for its truth because the declarant testified and faced cross-examination about the statement even without present recollection of its basis.
Nigel Nelson and Nicholas Nunez planned to conceal evidence of illegal dumping. While carrying out the plan Nigel texted a coworker describing the disposal steps. The court admitted the text against Nicholas for its truth because it was made by a coconspirator during and in furtherance of the conspiracy.
Northern Manufacturing's manager told a worker that upper management planned to fire technicians who reported safety data. The worker offered the statement against the company. The court admitted the statement for its truth because it was made by an agent on a matter within the scope of the agency relationship while the relationship existed.
An expert testified that a DNA profile from a crime scene matched the defendant's profile. The expert relied on a lab report prepared by a non-testifying analyst. The court admitted the report for its truth because the statement satisfied one of the conditions listed in Federal Rule of Evidence 801(d) even though the declarant made it while not testifying at the current trial or hearing.
A prior consistent statement is not hearsay if the declarant testifies and faces cross-examination and the statement rebuts a charge of recent fabrication or improper motive, provided the statement was made before the alleged motive arose.
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No. A prior statement of identification remains not hearsay under Rule 801(d)(1)(C) even if the witness cannot recall the basis for the identification, so long as the witness testifies and is subject to cross-examination about the statement.
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The declarant must testify and be subject to cross-examination, the statement must be inconsistent with the testimony, and the statement must have been given under penalty of perjury at a prior proceeding or deposition.
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The statement must predate the alleged motive to fabricate or improper influence. Statements made after the motive arose do not qualify as not hearsay to rebut that charge.
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…Majority opinion Opinion of Chief Justice Rehnquist Federal Rule of Evidence 801(d)(2)(E) provides: "A statement is not hearsay if . . . [t]he statement is offered against a party and is . . . a statement by a coconspirator of a party during the course and in furtherance of the conspiracy." We granted certiorari to…