§32.11 KEY POINTS

• Jurisdiction: United States

§32.11. KEY POINTS

Rule 801(d) defines some statements as nonhearsay. As a consequence, the hearsay rule is not a bar to admissibility. There are two categories: (1) certain prior statements and (2) admissions of a party-opponent.

Prior Inconsistent Statements: FRE 801(d)(1)(A)

There are two types of prior inconsistent statements in the Federal Rules. Prior inconsistent statements that do not satisfy the requirements of Rule 801(d)(1)(A) are still admissible for impeachment; Rule 613 governs the admissibility of these statements.

Four conditions must be satisfied for admissibility under Rule 801: (1) the declarant must testify, subject to cross-examination, at the current trial; (2) the prior statement must be inconsistent with the witness's trial testimony; (3) the prior statement must have been given under penalty of perjury (under oath); and (4) the prior statement must have been made at a trial, hearing, other proceeding, or in a deposition.

"Other proceedings" defined. Statements made at a prior trial, suppression hearing, preliminary hearing, deposition, or any other proceeding at which testimony is taken under penalty of perjury qualify under Rule 801(d)(1)(A). Grand jury testimony also qualifies. In contrast, stationhouse statements to the police or affidavits to government officials are not admissible. In short, formalized proceedings with transcripts are typically required.

Prior Consistent Statements: FRE 801(d)(1)(B)

Prior consistent statements are admissible as substantive evidence if offered to rebut an express or implied charge of recent fabrication or improper influence or motive. The witness must be subject to cross-examination at trial. In Tome v. United States, the Supreme Court held that the rule applies only when the statements are made before the alleged fabrication or improper influence or motive arises — i.e., premotive requirement.

Example. Suppose a witness is cross-examined about receiving money to influence the witness's testimony, a type of bias impeachment. The cash was allegedly provided on June 1. If the witness made a statement consistent with her trial testimony on May 1, the consistent statement rehabilitates credibility. It was made before the alleged motive arose.

Statements of Identification: FRE 801(d)(1)(C)

A witness's prior statement identifying a person as someone the witness had perceived earlier is admissible as substantive evidence. An identification made at a lineup, show-up (one-on-one confrontation)...