Women need a reason to have sex. Men just need a place.- Billy
FEDERAL RULES OF EVIDENCE ADVISORY COMMITTEE:
Subdivision (a). The definition of "statement" assumes importance
because the term is used in the definition of hearsay in subdivision (c).
The effect of the definition of "statement" is to exclude from the
operation of the hearsay rule all evidence of conduct, verbal or
nonverbal, not intended as an assertion. The key to the definition is
that nothing is an assertion unless intended to be one.
It can scarcely be doubted that an assertion made in words is intended by
the declarant to be an assertion. Hence verbal assertions readily fall
into the category of "statement." Whether nonverbal conduct should be
regarded as a statement for purposes of defining hearsay requires further
consideration. Some nonverbal conduct, such as the act of pointing to
identify a suspect in a lineup, is clearly the equivalent of words,
assertive in nature, and to be regarded as a statement. Other nonverbal
conduct, however, may be offered as evidence that the person acted as he
did because of his belief in the existence of the condition sought to be
proved, from which belief the existence of the condition may be inferred.
This sequence is, arguably, in effect an assertion of the existence of
the condition and hence properly includable within the hearsay concept.
See Morgan, Hearsay Dangers and the Application of the Hearsay Concept,
62 Harv.L. Rev. 177, 214, 217 (1948), and the elaboration in Finman,
Implied Assertions as Hearsay: Some Criticisms of the Uniform Rules of
Evidence, 14 Stan.L.Rev. 682 (1962). Admittedly evidence of this
character is untested with respect to the perception, memory, and
narration (or their equivalents) of the actor, but the Advisory Committee
is of the view that these dangers are minimal in the absence of an intent
to assert and do not justify the loss of the evidence on hearsay grounds.
No class of evidence is free of the possibility of fabrication, but the
likelihood is less with nonverbal than with assertive verbal conduct.
The situations giving rise to the nonverbal conduct are such as virtually
to eliminate questions of sincerity. Motivation, the nature of the
conduct, and the presence or absence of reliance will bear heavily upon
the weight to be given the evidence. Falknor, The "Hear-Say" Rule as a
"See-Do" Rule: Evidence of Conduct, 33 Rocky Mt.L.Rev. 133 (1961).
Similar considerations govern nonassertive verbal conduct and verbal
conduct which is assertive but offered as a basis for inferring something
other than the matter asserted, also excluded from the definition of
hearsay by the language of subdivision (c).
When evidence of conduct is offered on the theory that it is not a
statement, and hence not hearsay, a preliminary determination will be
required to determine whether an assertion is intended. The rule is so
worded as to place the burden upon the party claiming that the intention
existed; ambiguous and doubtful cases will be resolved against him and in
favor of admissibility. The determination involves no greater difficulty
than many other preliminary questions of fact. Maguire, The Hearsay
System: Around and Through the Thicket, 14 Vand.L.Rev. 741, 765-767
For similar approaches, see Uniform Rule 62(1); California Evidence Code
Sec. 225, 1200; Kansas Code of Civil Procedure Sec. 60-459(a); New Jersey
Evidence Rule 62(1)
Subdivision (c). The definition follows along familiar lines in including
only statements offered to prove the truth of the matter asserted.
McCormick Sec. 225; 5 Wigmore Sec. 1361, 6 id. Sec. 1766. If the
significance of an offered statement lies solely in the fact that it was
made, no issue is raised as to the truth of anything asserted, and the
statement is not hearsay. Emich Motors Corp. v. General Motors Corp.,
181 F.2d 70 (7th Cir. 1950), rev'd on other grounds 340 U.S. 558, 71
S.Ct. 408, 95 L.Ed 534, letters of complaint from customers offered as a
reason for cancellation of dealer's franchise, to rebut contention that
franchise was revoked for refusal to finance sales through affiliated
finance company. The effect is to exclude from hearsay the entire
category of "verbal acts" and "verbal parts of an act," in which the
statement itself affects the legal rights of the parties or is a
circumstance bearing on conduct affecting their rights.
The definition of hearsay must, of course, be read with reference to the
definition of statement set forth in subdivision (a).
Testimony given by a witness in the course of court proceedings is
excluded since there is compliance with all the ideal conditions for
Subdivision (d). Several types of statements which would otherwise
literally fall within the definition are expressly excluded from it:
(1) Prior statement by witness. Considerable controversy has attended
the question whether a prior out-of-court statement by a person now
available for cross-examination concerning it, under oath and in the
presence of the trier of fact, should be classed as hearsay. If the
witness admits on the stand that he made the statement and that it was
true, he adopts the statement and there is no hearsay problem. The
hearsay problem arises when the witness on the stand denies having made
the statement or admits having made it but denies its truth. The
argument in favor of treating these latter statements as hearsay is based
upon the ground that the conditions of oath, cross-examination, and
demeanor observation did not prevail at the time the statement was made
and cannot adequately be supplied by the later examination. The logic of
the situation is troublesome. So far as concerns the oath, its mere
presence has never been regarded as sufficient to remove a statement from
the hearsay category, and it receives much less emphasis than cross-
examination as a truth-compelling device. While strong expressions are
found to the effect that no conviction can be had or important right
taken away on the basis of statements not made under fear of prosecution
for perjury, Bridges v. Wixon, 326 U.S. 135, 65 S.Ct. 1443, 89 L.Ed.
2103 (1945), the fact is that, of the many common law exceptions to the
hearsay rule, only that for reported testimony has required the statement
to have been made under oath. Nor is it satisfactorily explained why
cross-examination cannot be conducted subsequently with success. The
decisions contending most vigorously for its inadequacy in fact
demonstrate quite thorough exploration of the weaknesses and doubts
attending the earlier statement. State v. Saporen, 205 Minn. 358, 285
N.W. 898 (1939); Ruhala v. Roby, 379 Mich. 102, 150 N.W.2d 146 (1967);
People v. Johnson, 68 Cal.2d 646, 68 Cal.Rptr. 599, 441 P.2d 111 (1968).
In respect to demeanor, as Judge Learned Hand observed in Di Carlo v.
United States, 6 F.2d 364 (2d Cir. 1925), when the jury decides that the
truth is not what the witness says now, but what he said before, they are
still deciding from what they see and hear in court. The bulk of the
case law nevertheless has been against allowing prior statements of
witnesses to be used generally as substantive evidence. Most of the
writers and Uniform Rule 63(1) have taken the opposite position.
The position taken by the Advisory Committee in formulating this part of
the rule is founded upon an unwillingness to countenance the general use
of prior prepared statements as substantive evidence, but with a
recognition that particular circumstances call for a contrary result.
The judgment is one more of experience than of logic. The rule requires
in each instance, as a general safeguard, that the declarant actually
testify as a witness, and it then enumerates three situations in which
the statement is excepted from the category of hearsay. Compare Uniform
Rule 63(1) which allows any out-of-court statement of a declarant who is
present at the trial and available for cross-examination.
(A) Prior inconsistent statements traditionally have been admissible to
impeach but not as substantive evidence. Under the rule they are
substantive evidence. As has been said by the California Law Revision
Commission with respect to a similar provision:
Section 1235 admits inconsistent statements of witnesses because the
dangers against which the hearsay rule is designed to protect are largely
nonexistent. The declarant is in court and may be examined and cross-
examined in regard to his statements and their subject matter. In many
cases, the inconsistent statement is more likely to be true than the
testimony of the witness at the trial because it was made nearer in time
to the matter to which it relates and is less likely to be influenced by
the controversy that gave rise to the litigation. The trier of fact has
the declarant before it and can observe his demeanor and the nature of
his testimony as he denies or tries to explain away the inconsistency.
Hence, it is in as good a position to determine the truth or falsity of
the prior statement as it is to determine the truth or falsity of the
inconsistent testimony given in court. Moreover, Section 1235 will
provide a party with desirable protection against the 'turncoat' witness
who changes his story on the stand and deprives the party calling him of
evidence essential to his case." Comment, California Evidence Code Sec.
1235. See also McCormick Sec. 39. The Advisory Committee finds these
views more convincing than those expressed in People v. Johnson, 68
Cal.2d 646, 68 Cal.Rptr. 599, 441 P.2d 111 (1968). The constitutionality
of the Advisory Committee's view was upheld in California v. Green, 399
U.S. 149, 90 S.Ct. 1930, 26 L.Ed.2d 489 (1970). Moreover, the requirement
that the statement be inconsistent with the testimony given assures a
thorough exploration of both versions while the witness is on the stand
and bars any general and indiscriminate use of previously prepared
(B) Prior consistent statements traditionally have been admissible to
rebut charges of recent fabrication or improper influence or motive but
not as substantive evidence. Under the rule they are substantive
evidence. The prior statement is consistent with the testimony given on
the stand, and, if the opposite party wishes to open the door for its
admission in evidence, no sound reason is apparent why it should not be
(C) The admission of evidence of identification finds substantial
support, although it falls beyond a doubt in the category of prior out-
of-court statements. Illustrative are People v. Gould, 54 Cal.2d 621, 7
Cal.Rptr. 273, 354 P.2d 865 (1960); Judy v. State, 218 Md. 168, 146 A.2d
29 (1958); State v. Simmons, 63 Wash.2d 17, 385 P.2d 389 (1963);
California Evidence Code Sec. 1238; New Jersey Evidence Rule 63(1)(c);
N.Y. Code of Criminal Procedure Sec. 393-b. Further cases are found in 4
Wigmore Sec. 1130. The basis is the generally unsatisfactory and
inconclusive nature of courtroom identifications as compared with those
made at an earlier time under less suggestive conditions. The Supreme
Court considered the admissibility of evidence of prior identification in
Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178
(1967). Exclusion of lineup identification was held to be required
because the accused did not then have the assistance of counsel.
Significantly, the Court carefully refrained from placing its decision on
the ground that testimony as to the making of a prior out-of-court
identification ("That's the man") violated either the hearsay rule or
the right of confrontation because not made under oath, subject to
immediate cross-examination, in the presence of the trier. Instead the
There is a split among the States concerning the admissibility of prior
extra-judicial identifications, as independent evidence of identity, both
by the witness and third parties present at the prior identification.
See 71 ALR2d 449. It has been held that the prior identification is
hearsay, and, when admitted through the testimony of the identifier, is
merely a prior consistent statement. The recent trend, however, is to
admit the prior identification under the exception that admits as
substantive evidence a prior communication by a witness who is available
for cross-examination at the trial. See 5 ALR2d Later Case Service 1225-
1228. * * *" 388 U.S. at 272, n.3, 87 S.Ct. at 1956.
(2) Admissions. Admissions by a party-opponent are excluded from the
category of hearsay on the theory that their admissibility in evidence is
the result of the adversary system rather than satisfaction of the
conditions of the hearsay rule. Strahorn, A Reconsideration of the
Hearsay Rule and Admissions, 85 U.Pa.L.Rev. 484, 564 (1937); Morgan,
Basic Problems of Evidence 265 (1962); 4 Wigmore Sec. 1048. No guarantee
of trustworthiness is required in the case of an admission. The freedom
which admissions have enjoyed from technical demands of searching for an
assurance of trustworthiness in some against-interest circumstance, and
from the restrictive influences of the opinion rule and the rule
requiring firsthand knowledge, when taken with the apparently prevalent
satisfaction with the results, calls for generous treatment of this
avenue to admissibility.
The rule specifies five categories of statements for which the
responsibility of a party is considered sufficient to justify reception
in evidence against him:
(A) A party's own statement is the classic example of an admission. If
he has a representative capacity and the statement is offered against him
in that capacity, no inquiry whether he was acting in the representative
capacity in making the statement is required; the statement need only be
relevant to represent affairs. To the same effect in California Evidence
Code Sec. 1220. Compare Uniform Rule 63(7), requiring a statement to be
made in a representative capacity to be admissible against a party in a
(B) Under established principles an admission may be made by adopting or
acquiescing in the statement of another. While knowledge of contents
would ordinarily be essential, this is not inevitably so: "X is a
reliable person and knows what he is talking about." See McCormick Sec.
246, p.527, n.15. Adoption or acquiescence may be manifested in any
appropriate manner. When silence is relied upon, the theory is that the
person would, under the circumstances, protest the statement made in his
presence, if untrue. The decision in each case calls for an evaluation
in terms of probable human behavior. In civil cases, the results have
generally been satisfactory. In criminal cases, however, troublesome
questions have been raised by decisions holding that failure to deny is
an admission: the inference is a fairly weak one, to begin with; silence
may be motivated by advice of counsel or realization that "anything you
say may be used against you"; unusual opportunity is afforded to
manufacture evidence; and encroachment upon the privilege against self-
incrimination seems inescapably to be involved. However, recent
decisions of the Supreme Court relating to custodial interrogation and
the right to counsel appear to resolve these difficulties. Hence the
rule contains no special provisions concerning failure to deny in
(C) No authority is required for the general proposition that a statement
authorized by a party to be made should have the status of an admission
by the party. However, the question arises whether only statements to
third persons should be so regarded, to the exclusion of statements by
the agent to the principal. The rule is phrased broadly so as to
encompass both. While it may be argued that the agent authorized to make
statements to his principal does not speak for him, Morgan, Basic
Problems of Evidence 273 (1962), communication to an outsider has not
generally been thought to be an essential characteristic of an admission.
Thus a party's books or records are usable against him, without regard to
any intent to disclose to third persons. 5 Wigmore Sec. 1557. See also
McCormick Sec. 78, pp. 159-161. In accord is New Jersey Evidence Rule
63(8)(a). Cf. Uniform Rule 63(8)(a) and California Evidence Code Sec.
1222 which limit status as an admission in this regard to statements
authorized by the party to be made "for" him, which is perhaps an
ambiguous limitation to statements to third persons. Falknor, Vicarious
Admissions and the Uniform Rules, 14 Vand.L.Rev. 855, 860-61 (1961).
(D) The tradition has been to test the admissibility of statements by
agents, as admissions, by applying the usual test of agency. Was the
admission made by the agent acting in the scope of his employment? Since
few principals employ agents for the purpose of making damaging
statements, the usual result was exclusion of the statement.
Dissatisfaction with this loss of valuable and helpful evidence has been
increasing. A substantial trend favors admitting statements related to a
matter within the scope of the agency or employment. Grayson v.
Williams, 256 F.2d 61 (10th Cir. 1958); Koninklijke Luchtvaart
Maatschappij N.V. KLM Royal Dutch Airlines v. Tuller, 110 U.S.App.D.C.
282, 292 F.2d 775, 784 (1961); Martin v. Savage Truck Lines, Inc., 121
F.Supp. 417 (D.D.C. 1054), and numerous state court decisions collected
in 4 Wigmore, 1964 Supp., pp. 66-73, with comments by the editor that the
statements should have been excluded as not within scope of agency. For
the traditional view see Northern Oil Co. v. Socony Mobile Oil Co., 347
F.2d 81, 85 (2d Cir. 1965) and cases cited therein. Similar provisions
are found in Uniform Rule 63(9)(a), Kansas Code of Civil Procedure Sec.
60-460(i)(1), and New Jersey Evidence Rule 63(9)(a).
(E) The limitation upon the admissibility of statements of co-
conspirators to those made "during the course and in furtherance of the
conspiracy" is in the accepted pattern. While the broadened view of
agency taken in item (iv) might suggest wider admissibility of statements
of co-conspirators, the agency theory of conspiracy is at best a fiction
and ought not to serve as a basis for admissibility beyond that already
established. See Levie, Hearsay and Conspiracy, 52 Mich.L.Rev. 1159
(1954); Comment, 25 U.Chi.L.Rev. 530 (1958). The rule is consistent with
the position of the Supreme Court in denying admissibility to statements
made after the objectives of the conspiracy have either failed or been
achieved. Krulewitch v. United States, 336 U.S. 440, 69 S.Ct. 716, 93
L.Ed. 790 (1949); Wong Sun v. United States, 371 U.S. 471, 490, 83 S.Ct.
407, 9 L.Ed.2d 441 (1963). For similarly limited provisions see
California Evidence Code Sec. 1223 and New Jersey Rule 63(9)(b). Cf.
Uniform Rule 63(9)(b).
NOTES OF COMMITTEE ON THE JUDICIARY, HOUSE REPORT NO. 93-650
Present federal law, except in the Second Circuit, permits the use of
prior inconsistent statements of a witness for impeachment only. Rule
801(d)(1) as proposed by the Court would have permitted all such
statements to be admissible as substantive evidence, an approach followed
by a small but growing number of State jurisdictions and recently held
constitutional in California v. Green, 399 U.S. 149 (1970). Although
there was some support expressed for the Court Rule, based largely on the
need to counteract the effect of witness intimidation in criminal cases,
the Committee decided to adopt a compromise version of the Rule similar
to the position of the Second Circuit. The Rule as amended draws a
distinction between types of prior inconsistent statements (other than
statements of identification of a person made after perceiving him which
are currently admissible, see United States v. Anderson, 406 F.2d 719,
720 (4th Cir.), cert. denied, 395 U.S. 967 (1969)) and allows only those
made while the declarant was subject to cross-examination at a trial or
hearing or in a deposition, to be admissible for their truth. Compare
United States v. DeSisto, 329 F.2d 929 (2nd Cir.), cert. denied, 377
U.S. 979 (1964); United States v. Cunningham, 446 F.2d 194 (2nd Cir.
1971) (restricting the admissibility of prior inconsistent statements as
substantive evidence to those made under oath in a formal proceeding, but
not requiring that there have been an opportunity for cross-examination).
The rationale for the Committee's decision is that (1) unlike in most
other situations involving unsworn or oral statements, there can be no
dispute as to whether the prior statement was made; and (2) the context
of a formal proceeding, an oath, and the opportunity for cross-
examination provide firm additional assurances of the reliability of the
Rule 801 defines what is and what is not hearsay for the purpose of
admitting a prior statement as substantive evidence. A prior statement
of a witness at a trial or hearing which is inconsistent with his
testimony is, of course, always admissible for the purpose of impeaching
the witness' credibility.
As submitted by the Supreme Court, subdivision (d)(1)(A) made admissible
as substantive evidence the prior statement of a witness inconsistent
with his present testimony.
The House severely limited the admissibility of prior inconsistent
statements by adding a requirement that the prior statement must have
been subject to cross-examination, thus precluding even the use of grand
jury statements. The requirement that the prior statement must have been
subject to cross-examination appears unnecessary since this rule comes
into play only when the witness testifies in the present trial. At that
time, he is on the stand and can explain an earlier position and be
cross-examined as to both.
The requirement that the statement be under oath also appears
unnecessary. Notwithstanding the absence of an oath contemporaneous with
the statement, the witness, when on the stand, qualifying or denying the
prior statement, is under oath. In any event, of all the many recognized
exceptions to the hearsay rule, only one (former testimony) requires that
the out-of-court statement have been made under oath. With respect to
the lack of evidence of the demeanor of the witness at the time of the
prior statement, it would be difficult to improve upon Judge Learned
Hand's observation that when the jury decides that the truth is not what
the witness says now but what he said before, they are still deciding
from what they see and hear in court (Di Carlo v. U.S., 6 F.2d 364 (2d
The rule as submitted by the Court has positive advantages. The prior
statement was made nearer in time to the events, when memory was fresher
and intervening influences had not been brought into play. A realistic
method is provided for dealing with the turncoat witness who changes his
story on the stand (see Comment, California Evidence Code Sec. 1235;
McCormick, Evidence, Sec. 38 (2nd ed. 1972)).
New Jersey, California, and Utah have adopted a rule similar to this one;
and Nevada, New Mexico, and Wisconsin have adopted the identical Federal
For all of these reasons, we think the House amendment should be rejected
and the rule as submitted by the Supreme Court reinstated. (It would
appear that some of the opposition to this Rule is based on a concern
that a person could be convicted solely upon evidence admissible under
this Rule. The Rule, however, is not addressed to the question of the
sufficiency of evidence to send a case to the jury, but merely as to its
admissibility. Factual circumstances could well arise where, if this
were the sole evidence, dismissal would be appropriate).
As submitted by the Supreme Court and as passed by the House, subdivision
(d)(1)(c) of rule 801 made admissible the prior statement identifying a
person made after perceiving him. The committee decided to delete this
provision because of the concern that a person could be convicted solely
upon evidence admissible under this subdivision.
The House approved the long-accepted rule that "a statement by a
coconspirator of a party during the course and in furtherance of the
conspiracy" is not hearsay as it was submitted by the Supreme Court.
While the rule refers to a coconspirator, it is this committee's
understanding that the rule is meant to carry forward the universally
accepted doctrine that a joint venturer is considered as a coconspirator
for the purposes of this rule even though no conspiracy has been charged.
United States v. Rinaldi, 393 F.2d 97, 99 (2d Cir.), cert. denied 393
U.S. 913 (1968); U.S. v. Spencer, 415 F.2d 1301, 1304 (7th Cir. 1969).
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