§ 31.05 "OUT-OF-COURT" (EXTRAJUDICIAL) REQUIREMENT

• Jurisdiction: United States

§ 31.05. "OUT-OF-COURT" (EXTRAJUDICIAL) REQUIREMENT

Rule 801(c)(1) defines hearsay as a statement that "the declarant does not make while testifying at the current trial or hearing." Hence, an out-of-court (extrajudicial) statement does not lose its hearsay character simply because the declarant later becomes a witness at trial and testifies about the statement. For example, if an eyewitness to an accident makes a statement at the time of the accident and later testifies at trial, the prior statement is hearsay if offered for its truth; to be admissible, it must fall within an exception or exemption. The witness, of course, may testify about what she saw; only the witness's prior statement is hearsay.

This result has been criticized because the witness is on the stand, under oath, is now subject to cross-examination, and the jury can observe the witness's demeanor. The only problem is that the statement was not subject to cross-examination at the time it was made. In the case of prior inconsistent statements, however, practitioners have argued that delayed cross-examination is not effective and, therefore, such statements should be classified as hearsay, which is the traditional approach.²⁶

The Federal Rules generally follow the traditional view. They depart from this approach in a narrow range of circumstances — the exemptions for certain prior statements.²⁷

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Notes:

^[26] See Mueller, Post-Modern Hearsay Reform:...