§ 31.04 "DECLARANT" DEFINED: FRE 801(B)

• Jurisdiction: United States

§ 31.04. "DECLARANT" DEFINED: FRE 801(b)

Rule 801(b) defines "declarant" as the "person who made the statement." This definition makes clear that the hearsay rule does not apply to devices, such as radar, or to tracking dogs.²² The principal objection to hearsay is the lack of cross-examination. It makes no sense to demand cross-examination of a machine or a dog, even though both still raise reliability concerns. Nevertheless, those concerns are better addressed as problems of scientific proof.²³

Computer-generated records may also fall into this category if they do not contain an assertion of a person — e.g., automated telephone logs.²⁴ In other words, the record "is simply the result of an automated process free from human input or intervention."²⁵

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Notes:

^[22] The time of day as "told" by a clock is another example.

^[23] See supra § 24.04 (discussing admissibility of scientific evidence).

^[24] See United States v. Washington, 498 F.3d 225, 231 (4th Cir. 2007) (driving under the influence of PCP; "the raw data generated by the machines [gas chromatograph/spectrometry] do not constitute 'statements,' and the machines are not 'declarants.' "); United States v. Hamilton, 413 F.3d 1138, 1142-43 (10th Cir. 2005) (concluding that the computer-generated header information accompanying pornographic images retrieved from the Internet was not a hearsay statement because there was no "person" acting as a delcarant); United States v. Khorozian, 333 F.3d 498, 506 (3d Cir. 2003) (concluding that an automatically generated time stamp on a fax was not a hearsay statement because it was not uttered by a person).

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