Hearsay Definitions; Hearsay Rule — Rules 801 and 802


Hearsay Definitions; Hearsay Rule — Rules 801 and 802

SUMMARY OF RULES 801 and 802

Rule 801 — Hearsay Definition

• Hearsay is a statement made outside of the courtroom that is offered to prove the truth of the matter asserted.
• The statement may be oral, written, or non-verbal communication.
• The statement must be assertive (declarative). An exclamation, interrogatory (question), or imperative (giving order) statement is not hearsay.
• Prior consistent statements by a witness are not hearsay if offered for rebuttal or rehabilitation.
• Prior inconsistent statements by a witness are not hearsay.
• Statements of a party offered by a party-opponent are not hearsay.
• A statement of a party-opponent may be an implied adoption by silence (tacit admission). A vicarious admission may occur when the statement is made by an agent of the party-opponent.
• A statement of a party-opponent may be made by a person authorized to make a statement, or by an agent or servant concerning a matter within the scope of the agency or employment.

Rule 802 — Hearsay Rule

• Hearsay is not admissible unless excepted by the rules or statutes of Colorado.

• A party offering his or her own out-of-court statement is merely offering a self-serving statement or admission, and such a statement is generally inadmissible (as there is nothing to guarantee reliability). People v. Abeyta, 728 P.2d 327 (Colo. App. 1986).

• Statements in prior pleadings may be introduced as substantive evidence. In Interest of K.A.J., 635 P.2d 921 (Colo. App. 1981) (inconsistent deposition statement of a child about incest is not hearsay in dependency and neglect matter).

• In a subsequent criminal case, a trial court may admit testimony from a contested dependency and neglect adjudicatory or termination of parental rights hearing. People v. Stroud, 356 P.3d 903 (Colo. App. 2014).

• The rationale for defining an admission by a party opponent as non-hearsay is not that it is an admission against interest and therefore entitled to a presumption of reliability, but rather that it is not hearsay because a party has an opportunity to explain. The statement of a party need not have been against his or her interest when made. People v. Meier, 954 P.2d 1068 (Colo. 1998).

• A written statement made by an attorney in response to a request for a disciplinary investigation was held admissible at the disciplinary hearing as an admission of the party-opponent. People v. Meier, 954 P.2d 1068 (Colo. 1998).


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