Rule 801 Definitions

• Library: The Illinois Rules of Evidence: A Color-Coded Guide (2019 Ed.)

FEDERAL RULES OF EVIDENCE

Rule 801. Definitions That Apply to This Article; Exclusions from Hearsay

(a) Statement. "Statement" means a person's oral assertion, written assertion, or nonverbal conduct, if the person intended it as an assertion.

(b) Declarant. "Declarant" means the person who made the statement.

(c) Hearsay. "Hearsay" means a statement that:

(1) the declarant does not make while testifying at the current trial or hearing; and
(2) a party offers in evidence to prove the truth of the matter asserted in the statement.

(d) Statements That Are Not Hearsay. A statement that meets the following conditions is not hearsay:

(1) A Declarant-Witness's Prior Statement. The declarant testifies and is subject to cross-examination about a prior statement, and the statement:

(A) is inconsistent with the declarant's testimony and was given under penalty of perjury at a trial, hearing, or other proceeding or in a deposition;
(B) is consistent with the declarant's testimony and is offered

(i) to rebut an express or implied charge that the declarant recently fabricated it or acted from a recent improper influence or motive in so testifying; or
(ii) to rehabilitate the declarant's credibility as a witness when attacked on another ground; or

(C) identifies a person as someone the declarant perceived earlier.

(2) An Opposing Party's Statement. The statement is offered against an opposing party and:

(A) was made by the party in an individual or representative capacity;
(B) is one the party manifested that it adopted or believed to be true;
(C) was made by a person whom the party authorized to make a statement on the subject;
(D) was made by the party's agent or employee on a matter within the scope of that relationship and while it existed; or
(E) was made by the party's coconspirator during and in furtherance of the conspiracy.

The statement must be considered but does not by itself establish the declarant's authority under (C); the existence or scope of the relationship under (D); or the existence of the conspiracy or participation in it under (E).

ILLINOIS RULES OF EVIDENCE

Rule 801. Definitions

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. In a criminal case, 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 at the trial or hearing, and—

(1) was made under oath at a trial, hearing, or other proceeding, or in a deposition, or
(2) narrates, describes, or explains an event or condition of which the declarant had personal knowledge, and

(a) the statement is proved to have been written or signed by the declarant, or
(b) the declarant acknowledged under oath the making of the statement either in the declarant's testimony at the hearing or trial in which the admission into evidence of the prior statement is being sought or at a trial, hearing, or other proceeding, or in a deposition, or
(c) the statement is proved to have been accurately recorded by a tape recorder, videotape recording, or any other similar electronic means of sound recording; or

(B) one of identification of a person made after perceiving the person.

(2) Statement 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, or (F) a statement by a person, or a person on behalf of an entity, in privity with the party or jointly interested with the party.

COMMENTARY

Author's Overview of the Hearsay Rules in Article VIII

Article VIII of the Evidence Rules begins with Rule 801, providing definitions related to hearsay in subdivisions (a), (b), and (c) and statements that are not hearsay in subdivision (d). A later-numbered rule, Rule 802, presents the hearsay rule and informs us that hearsay—defined in Rule 801(c) as an out-of-court statement offered for the truth of the matter asserted—is inadmissible, except as provided by "these rules" (i.e., other evidence rules, thus previewing the rules that follow and taking into account a rule such as Rule 104(a)), supreme court rules, or statutes. Rule 801(d), in turn, excludes from the hearsay rule certain out-of-court statements made by witnesses and party-opponents (either directly or through authorization or adoption) that otherwise might fit the definition of hearsay. It does this by declaring that statements that satisfy the rule are not hearsay at all (and thus are not even an exception to the hearsay rule, but may be properly characterized as an exclusion from the hearsay rule) and are therefore substantively admissible.

Rule 803 provides a host of exceptions to the hearsay rule, in instances where it makes no difference whether the out-of-court declarant is or is not available; and Rule 804 provides five exceptions to the hearsay rule, exceptions that apply only where the out-of-court declarant is unavailable as a witness. All of the statements subject to the exceptions provided by Rules 803 and 804, like the statements excluded from the hearsay rule in Rule 801(d), are admissible substantively, i.e., they may be relied upon by the trier of fact in determining the outcome of the litigation.

Rule 805 provides that hearsay within hearsay is excluded from the hearsay rule if each part of the combined statements conforms with an exception to the hearsay rule, and Rule 806 describes how the credibility of a declarant may be attacked or supported whether or not the declarant is called as a witness.

Illinois has not adopted a "residual exception" to the hearsay rule, such as that provided in FRE 807 but, as the author's commentary to the non-adoption of that federal rule indicates, Illinois has numerous exceptions to the hearsay rule provided by statutes, all of which may be considered residual exceptions. The Confrontation Clause in the sixth amendment to the U.S. Constitution allays concerns about the unreliability of out-of-court, incriminating statements against an accused in a criminal case. (See the Author's Commentary on Non-Adoption of Fed. R. Evid. 807).

Though the hearsay rule provides an evidentiary rule and not a constitutional mandate, a similar concern about reliability applies to the admission of a declarant's out-of-court statements to prove the truth of the matter asserted in both civil and criminal cases: the concern that the trier of fact (with primary focus on juries) might not properly evaluate statements made outside its presence, and thus might give undue weight to such evidence. The rationale underlying the hearsay rule is that out-of-court statements are not subject to cross-examination, frequently not under oath, and are not subject to the trier's review of the demeanor of the out-of-court declarant. To allay those concerns, both the exclusions to the hearsay rule (in Rule 801(d)) and the exceptions to the rule (in Rules 803 and 804) allow for the substantive admission of out-of-court statements that are deemed to possess sufficient indicia of reliability.

Author's Commentary on Ill. R. Evid. 801(c)

IRE 801(c) is identical to the wording of the federal rule before the latter's amendment solely for stylistic purposes effective December 1, 2011. The definition it provides is consistent with prior Illinois law. See People v. Carpenter, 28 Ill. 2d 116 (1963) (offering substantially the same definition of hearsay); People v. Olinger, 176 Ill. 2d 326, 357 (1997) ("Hearsay evidence is an out-of-court statement offered to prove the truth of the matter asserted, and it is generally inadmissible due to its lack of reliability unless it falls within an exception to the hearsay rule").

WLTNESS AS OUT-OF-COURT DECLARANT

Note that, except for the Rule 801(d)(1) analysis discussed below, the fact that the witness is both the out-of-court declarant and the witness is not relevant in hearsay analysis. In People v. Lawler, 142 Ill. 2d 548 (1991), well before Illinois adopted codified evidence rules, the supreme court reasoned as follows about the non-admissibility of such evidence:

"The State argues that a statement from a witness as to his own prior out-of-court statement cannot violate the hearsay rule, because the witness will testify at trial with the safeguards of an oath and cross-examination, reducing the risk of perjured testimony. Adoption of the State's rationale would essentially obliterate a good portion of the hearsay rule. As has been noted, '[t]he presence or absence in court of the declarant of the out-of-court statement is *** irrelevant to a determination as to whether the out-of-court statement is hearsay.' M. Graham, Cleary & Graham's Handbook of Illinois Evidence § 801.1, at 564-65 (5th ed. 1990). See People v. Spicer (1979), 79 Ill. 2d 173, 179, 402 N.E.2d 169 (where this court held that prior inconsistent hearsay statements of an in-court witness cannot be used as substantive evidence)."

In People v. Lambert, 288 Ill. App. 3d 450 (1997), also well before Illinois' adoption of codified evidence rules, the appellate...