Also known as: Federal Rule of Evidence 801(a) · Rule 801(a) · hearsay statement
Written by attorneys · grounded in primary & secondary sources — see below
A rule specifying that a statement for hearsay purposes consists of an oral or written assertion or of nonverbal conduct intended by the person as an assertion.
Investors in a securities fraud suit against Apex Investment Bank offer a voicemail from deceased analyst Luis Ortiz describing concealed losses. The voicemail contains oral assertions about internal loan files. The court admits the voicemail under the residual exception after finding sufficient trustworthiness and probative value. Apex then seeks to introduce Ortiz's prior inconsistent statements to regulators under Rule 806 to attack credibility.
Harbor Logistics offers a claims file note written by deceased adjuster Lee stating that Apex Insurance's director admitted coverage after a warehouse fire. The note is an out-of-court written assertion offered to prove the admission. Harbor provided written notice identifying Lee and the note's substance six weeks before trial. The court admits the note under the residual exception once notice and other requirements are satisfied.
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In a cocaine distribution prosecution, the government offers a recorded call in which Lonardo refers to petitioner as K.C. while discussing an upcoming transaction. The reference is an oral assertion identifying the participant. The court conditionally admits the call under the co-conspirator exclusion after finding sufficient evidence of the conspiracy.
In a joint trial, the government introduces a postal inspector's testimony recounting Evans's oral confession that directly names Bruton as a participant in the robbery. The confession is an out-of-court assertion offered against Bruton. The court must determine whether the statement qualifies under the definition before confronting the constitutional issue of its use.
The prosecution offers Sylvia Crawford's tape-recorded statement to police describing the events leading to her husband's assault charge. The statement consists of oral assertions about the incident. The court must decide whether the statement is testimonial before applying the confrontation requirement.
In a sexual assault prosecution, the state offers Autumn Bockting's statements to her mother and a detective describing the assaults. The statements are oral assertions recounting the events. The court admits the statements after finding sufficient reliability under state law, prompting a later federal challenge to the standard applied.
FRE 801(a) includes oral or written assertions as statements. It also includes nonverbal conduct when the person intends the conduct to assert something. Nodding, pointing, or using an emoji in direct response to a question can qualify if the actor means to communicate agreement or another fact.
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Silence counts only if the circumstances show the person intended it as an assertion. Mere failure to respond is usually not a statement unless context makes clear the silence was meant to communicate agreement or denial.
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A thumbs-up emoji sent in response to a question asking for agreement is nonverbal conduct intended as an assertion. It therefore qualifies as a statement under FRE 801(a) and is subject to the hearsay rules if offered to prove the truth of the asserted fact.
The rule limits statements to conduct the actor intends as an assertion to avoid treating every action as hearsay. Unintended conduct, such as nervous pacing without communicative purpose, does not qualify because it carries no assertive intent.
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…S. 415, 418-420 (1965). In contrast, we considered reliability factors beyond prior opportunity for cross-examination when the hearsay statement at issue was not testimonial. See Dutton v. Evans , 400 U. S., at 87-89 (plurality opinion). Even our recent cases, in their outcomes, hew closely to the traditional line. Ohio v.…