Rule 801 Definitions

• Jurisdiction: Arizona

The following definitions apply under this article:

(a) Statement. A "statement" is (1) an oral or written assertion or (2) nonverbal conduct of a person, if it is intended by the person as an assertion.

(b) Declarant. A "declarant" is a person who makes a statement.

(c) Hearsay. "Hearsay" is 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.

(d) Statements which are not hearsay. A statement is not hearsay if-

(1) Prior statement by witness.The declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is (A) inconsistent with the declarant's testimony, or (B) consistent with the declarant's testimony and is offered to rebut an express or implied charge against the declarant of recent fabrication or improper influence or motive, or (C) one of identification of a person made after perceiving the person or

(2) Admission by party-opponent. The statement is offered against a party and is (A) the party's own statement, in either an individual or a representative capacity, or (B) a statement of which the party has manifested an adoption or belief in its truth, or (C) a statement by a person authorized by the party to make a statement concerning the subject, or (D) a statement by the party's agent or servant concerning a matter within the scope of the agency or employment, made during the existence of the relationship, or (E) a statement by a coconspirator of a party during the course and in furtherance of the conspiracy.

Comment

Paragraph (a) provides that conduct, whether verbal or nonverbal, is not within the definition of hearsay unless the declarant intends it to be an assertion.[1] An assertion is conduct on the part of a person intended to convey that person's belief that something is so. Questions and interjections therefore are generally not "statements" under this definition. Verbal assertions are generally regarded as statements. A more subtle distinction must be made when evaluating non-verbal conduct, such as a nod of the head or the pointing of a finger in response to an inquiry. If the non-verbal conduct is intended to be an assertion, then it is treated as any other statement and its admissibility is judged accordingly.[2] The rule favors admissibility of such evidence and places the burden of proof upon the party alleging that the declarant intended to make an assertion.

Paragraph (c) recognizes that not everything said outside a courtroom is hearsay, and such out-of-court statements are inadmissible only to the extent (1) they contain an assertion, and (2) they are offered to prove the truth of the matter asserted.[3] There are occasions when a statement is offered for a reason other than to prove the truth of what was asserted, such as when a statement is offered to show the state of mind of a party or witness, when a statement affects the legal rights of the parties (e.g., a contractual dispute), or when the knowledge of a declarant is material to a cause of action. If the out-of-court assertion is offered for a purpose other than to prove the truth of the matter asserted, it is not hearsay and is thus admissible,[4] and its admission does not violate the defendant's right of confrontation.[5]

Paragraph (d) provides that certain conduct that would fit the definition of "hearsay" under paragraphs (a) through (c) is nonetheless excluded from the definition of "hearsay" for various reasons. Paragraph (d)(1) allows out-of-court statements of a witness provided the witness testifies and is subject to cross-examination. In this way, the witness can admit, deny, or explain the prior statement while under oath, and the trier-of-fact can assess the witness's credibility. Subpart (A) allows the introduction of prior inconsistent statements for impeachment. This portion of the hearsay rule as adopted in Arizona differs significantly from its federal counterpart. The federal rule requires that the prior inconsistent statement be "given under oath subject to the penalty of perjury at a trial, hearing, or other proceeding, or in a deposition." Arizona imposes no such restriction on the use of impeaching statements, and such prior inconsistent statements are to be considered as substantive evidence.[6] If the trial court rules that a party may impeach the other party with a prior statement, the other may not challenge that ruling unless that party testifies and actually is impeached with the statement.[7]

A prior statement is admissible if it is inconsistent with trial testimony,[8] and the degree of contradiction determines whether a statement is inconsistent, but an inconsistent statement is not limited to one diametrically opposed to trial testimony.[9] Failure of a witness to address a subject or state a fact in a prior statement under circumstances in which the witness naturally would have addressed that subject or stated that fact may be an inconsistency and may be a subject for impeachment.[10] If the witness cannot remember making a prior statement, the prior statement is inconsistent only if the witness is feigning loss of memory; if loss of memory is real, the statement is not inconsistent and is admissible only if it comes under one of the hearsay exceptions.[11] If the witness admits making the prior inconsistent statement but maintains it was not true, the trial court should admit the statement and not exclude it under Rule 403.[12]

Subpart (B) allows the use of prior consistent statements for the purpose of rehabilitating a witness who is expressly or impliedly charged with recent fabrication, or improper influence or motive.[13] Again, these statements may be admitted as substantive evidence. The expressed or implied charge of recent fabrication, or improper influence or motive may come in either opening statement[14] or in cross-examination.[15] Such statements are admissible only if they were made prior to the time the motive to fabricate arose or the improper influence was applied.[16]

Subpart (C) allows statements of identification.The types of identification considered admissible under this subpart include one-person showups, live lineups,[17] photographic arrays, identifications occurring during judicial proceedings, and composite sketches.[18]

Paragraph (d)(2) allows the introduction of out-of-court statements of a party or one acting for the party. These statements are admissible whether or not the party chooses to testify. If the party wishes to deny or explain the prior statement, the party can do so by testimony under oath; the trier-of-fact can then assess the party's credibility in determining which version to believe. This paragraph also contains the requirement that the statement is "offered against a party." This limits admissibility to only those statements one party seeks to use against the other party, and excludes a party's own statements that a party seeks to introduce to support its own position.[19]

Subpart (A) allows for the introduction of a party's own statement. This includes anything one party said that the other party wishes to introduce against that party.[20] This is separate and apart from a "statement against interest" in Rule 804(b)(3), which requires the out-of-court statement subject the declarant to some civil or criminal detriment. Although Rule 804(b)(3) applies to both witnesses and parties to the litigation, as a practical matter, Rule 804(b)(3) is useful only for witnesses, because any statement made by a party that satisfies the requirements of Rule 804(b)(3) would be admissible under Rule 801(d)(2)(A). In criminal matters, any statement the defendant has made is admissible as long as it is voluntary and the officers have complied with Miranda, thus the statement does not have to be a confession before it is admissible.[21] In civil matters, a party's answer to an interrogatory may be introduced against the party as an admission, but an answer that is in the alternative and based on a contingency is not admissible because of its potential for confusing the jurors and because it might cause a party not to give full disclosure when answering interrogatories.[22]

Subpart (B) allows for the admission of a statement a party has adopted as its own or has indicated it believes to be true.[23] An admission by adoption or belief in the truth of a third party's statement may be accomplished either by a statement to that effect or by failing to make a statement in an appropriate circumstance.[24] No particular problems arise in the civil context. In the criminal context, however, the proffered use of the silence of an accused is subject to constitutional limitations.

Subparts (C) and (D) provide for admission of statements a party has authorized a third party to make. The major limitation on the use of an agent's statement is the scope of the agency.[25] A statement by an agent is admissible against a principal if it was (1) made by the principal's agent or servant, (2) made during the existence of the agency relationship, and (3) concerned matters within the scope of the agency or employment.[26]

Subpart (E) allows for the introduction of statements made by a co-conspirator, which may be used as substantive evidence.[27] The state need not charge the conspiracy as a separate crime before the evidence of co-conspirators' statements are admissible.[28]

The United States Supreme Court has held that a state need not show that a co-conspirator is unavailable before the trial court may admit a statement of that co-conspirator,[29] and that the admission of a statement of a co-conspirator does not violate the Confrontation Clause.[30] The Court has held it is for the trial court to determine under Rule 104(a) whether a conspiracy existed and whether the defendant was involved in the conspiracy.[31] Arizona has similarly held that the trial court must make the determination under Rule 104(a) whether a...