Also known as: FRE 801 · Fed. R. Evid. 801 · Rule 801 · Rule 801 FRE
Written by attorneys · grounded in primary & secondary sources — see 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.
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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.
Francois 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.
The 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…