The Necessary Definitions
Rule 801. Definitions
- The following definitions apply under this section:
(a) Statement. A “statement” is (1) an oral or written assertion or (2) nonverbal conduct of a person, if it is intended by the person as an assertion.
(c) “Hearsay” is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.
- Under the Rule, a statement may be oral, written, or nonverbal conduct intended as an assertion, not made at trial, offered to prove the truth of the matter asserted.
- Under Rule 801(b), the declarant is a “person” who makes a statement, not a
computer or a bloodhound. Although the data entered into a computer may be a
statement of a person.
- Out-of-court means that at the time the person made the statement, the person
was not in the courtroom, unless it satisfies the requirements of Rule 801(d).
- Proving the Truth of the Matter Asserted: This is the definitional prong that
addresses the advocate’s need to cross-examine the declarant. The proponent
must offer the statement to prove the truth of an assertion contained in the
statement. If the statement is logically relevant to another theory, it is nonhearsay.
In other words, the value of the statement lies in the fact that it was
made. For example, an uttered statement that constitutes an element of an
offense is not hearsay, but may be called an operative fact or a verbal act, e.g.:
disrespectful language; swearing, provoking language, threats, etc. Other
common non-hearsay uses include using the statement as circumstantial evidence
of the declarant’s state of mind (e.g, premeditation), using the statement to show
its effect on the state of mind of the hearer or reader.