Rule 801(c): Admissibility of a Testifying Witness's Extra-judicial Statements

• Jurisdiction: Colorado,United States
• Citation: Vol. 30 No. 5 Pg. 57
• Pages: 57
• Publication year: 2001

30 Colo.Law. 57 Colorado Lawyer 2001.

2001, May, Pg. 57. Rule 801(c): Admissibility of a Testifying Witness's Extra-Judicial Statements

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57

Vol. 30, No. 5, Pg.57

The Colorado Lawyer
May 2001
Vol. 30, No. 5 [Page 57]

Specialty Law Columns
Civil Evidence
Rule 801(c): Admissibility of a Testifying Witness's Extra-Judicial Statements
by Richard F. Rodriguez

Q: Do a testifying witness's own prior out-of-court statements constitute hearsay

A: Yes, if the statements are offered for the truth of the matter asserted. The out-of-court statements previously made by the testifying witness are admissible where offered for purposes other than the truth of the matter asserted or where they satisfy an established exclusion from or exception to the hearsay rule

Assumed Facts

B. Lee Vable ("Believable") owns a laundry detergent company. Tess T. Mony ("Testimony") owns a dry cleaning company. B. Lee Vable sells Tess T. Mony 100 cases of his detergent. Tess T. Mony uses the detergent in her establishment. The following week, Tess T. Mony sees B Lee Vable on the street and tells him, "Business is outstanding! This non-abrasive detergent that you sold me is wonderful."

Tess T. Mony later finds out that the detergent contains four times the normal amount of abrasives as the average detergent. After several patrons complain about deteriorating clothing, Tess T. Mony stops using the detergent and sues B. Lee Vable.

Tess T. Mony claims B. Lee Vable misrepresented that the detergent was non-abrasive, but B. Lee Vable denies that he made such a representation. During Tess T. Mony's direct examination, counsel tries to show that Tess T. Mony believed B. Lee Vable's misrepresentations about the detergent. Thus, counsel attempts to introduce, through Tess T. Mony, her previous statement made to B. Lee Vable on the street. B. Lee Vable objects on the ground that the statement is hearsay. Is B. Lee Vable correct?

Analysis

Rule 801(c) of the Colorado Rules of Evidence ("C.R.E.") defines hearsay as a "statement other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted."1 Any statement made outside of the courtroom, even one made by a testifying witness, is a statement that fits within the definition of hearsay under C.R.E. 801. Consequently, a witness's prior out-of-court...