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 him to be communicative.


The change reflected in the Colorado rule was necessary, in the minds of the Committee members, because the Committee believed that the word "assertion" was extremely unclear; the change is felt to be more precise.

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

(Federal Rule Identical.)

(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.

(Federal Rule Identical.)

(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 his testimony, or (B) consistent with his testimony and is offered to rebut an express or implied charge against him of recent fabrication or improper influence or motive, or (C) one of identification of a person made after perceiving him, 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 co-conspirator of a party during the course and in furtherance of the conspiracy. The contents of the statement shall be considered but are not alone sufficient to establish the declarant's authority under subdivision (C), the agency or employment relationship and scope thereof under subdivision (D), or the existence of the conspiracy and the participation therein of the declarant and the party against whom the statement is offered under subdivision (E).

(Federal Rule Substantially Identical, Except as to Rule 801(d)(1)(A).)


The last sentence of this Rule was added to track a corresponding change in F.R.E. 801(d)(2). Source: (d)(2) amended and committee comment added November 25, 1998, effective January 1, 1999.


Law reviews. For article, "Hearsay in Criminal Cases Under the Colorado Rules of Evidence: An Overview", see 50 U. Colo. L. Rev. 227 (1979). For article, "Admissibility of Prior Testimony", see 11 Colo. Law. 398 (1982). For article, "Confrontation and Co-conspirators in Colorado", see 14 Colo. Law. 385 (1985). For article, "Mythological Rules of Evidence", see 16 Colo. Law. 1218 (1987). For article, "Prior Inconsistent Statements", see 17 Colo. Law. 1977 (1988). For article, "Rules 801 and 613: Evidentiary Uses of Pleadings Filed in Other Cases", see 21 Colo. Law. 2389 (1992). For article, "Impeachment", see 22 Colo. Law. 1207 (1993). For article, "Rules 801 and 804: The Admissibility of Out-of-Court Statements Made by Present and Former Employees", see 26 Colo. Law. 77 (Sept. 1997). For article, "Rule 801(c): Admissibility of a Testifying Witness's Extra-Judicial Statements", see 30 Colo. Law. 57 (May 2001). For article, "Tips for Working With Evidence in Domestic Relations Cases", see 31 Colo. Law. 87 (June 2002). For article, "The Admissibility of Facebook Communications", see 44 Colo. Law. 77 (July 2015).

Purpose of hearsay rule. The constitutional right of confrontation and the hearsay rule stem from the same roots, and are designed to protect similar interests based on the premise that testimony is much more reliable when given under oath at trial, where the declarant is subject to cross-examination and the jury may observe his demeanor. People v. Dement, 661 P.2d 675 (Colo. 1983); People v. Nunez, 698 P.2d 1376 (Colo. App. 1984), aff'd, 737 P.2d 422 (Colo. 1987).

Electronically stored information on cellular telephone is not hearsay, and trial court properly admitted telephone into evidence. Stored information on cellular telephone is not considered hearsay because it is neither a "declarant" nor a "statement", as specified within the meaning of this rule. People v. Buckner, 228 P.3d 245 (Colo. App. 2009).

Computer-generated reports of the contents of cellular telephone was hearsay because prosecution did not establish that the reports were machine-generated without human input or interpretation. People v. Hamilton, 2019 COA 101, 452 P.3d 184.

Detective's testimony about the computer-generated reports added a second layer of hearsay because detective described to the jury the content of the reports to prove the truth of their content. People v. Hamilton, 2019 COA 101, 452 P.3d 184.

Testimony regarding the contents of the victim's phone was also inadmissible hearsay and the prosecutor failed to prove that the reports on which the testimony was based were reliable and authentic. People v. Hamilton, 2019 COA 101, 452 P.3d 184.

A person's demeanor, being upset and crying, is generally not hearsay. The court erred in excluding rebuttal testimony of a police officer that the defendant had been upset and crying. People v. Lujan, 2018 COA 95, ___ P.3d ___.

Testimonial hearsay is admissible only upon a showing of the unavailability of the declarant and a prior opportunity for cross-examination of the declarant by the defendant. Compan v. People, 121 P.3d 876 (Colo. 2005).

Nontestimonial statements do not implicate a defendant's state constitutional right to confrontation. In light of the U.S. supreme court's holding in Davis v. Washington, 547 U.S. 813 (2006), Colorado's confrontation clause applies only to testimonial statements. Nicholls v. People, 2017 CO 71, 396 P.3d 675.

Where statements by victim were not testimonial, Crawford v. Washington, 541 U.S. 36 (2004), does not require defendant to have an opportunity to cross-examine victim. People v. Gash, 165 P.3d 779 (Colo. App. 2006).

Translation as hearsay. An interpreter serves as a language conduit for the declarant. Hence, admission of translated testimony is appropriate when the circumstances assure its reliability. Relevant factors include: (1) Whether actions after the translated conversation were consistent with the translated statements; (2) whether the interpreter had qualifications to interpret and language skill; (3) whether the interpreter had any motive to mislead or distort; and (4) which party supplied the interpreter. People v. Hinojos-Mendoza, 140 P.3d 30 (Colo. App. 2005), aff'd in part and rev'd in part on other grounds, 169 P.3d 662 (Colo. 2007).

Hearsay statements are presumptively unreliable since the declarant is not present to explain the statement in context nor subjected to cross examination. Blecha v. People, 962 P.2d 931 (Colo. 1998).

Statement not excluded where relevance goes to fact that statement made, not its truth. Where it is the fact that the statement was made, and not its truth or falsity, that is relevant, it is error to exclude the statement. Conrad v. City & County of Denver, 656 P.2d 662 (Colo. 1982); Hansen v. Lederman, 759 P.2d 810 (Colo. App. 1988).

Statements not hearsay when offered for their falsity not their truth. People v. Godinez, 2018 COA 170M, ___ P.3d ___.

Prior statements admissible to create fact dispute. Where the record indicates that a party would be available as a witness at the trial of the matter and would be subject to cross-examination, her prior statements would be admissible to create a fact dispute to be resolved by the trier of fact. People in Interest of K.A.J., 635 P.2d 921 (Colo. App. 1981).

Entire statement not admitted to rehabilitate testimony where only portion relevant. The trial court does not err in refusing to admit an entire tape recording of a statement made by the defendant after his arrest for the purpose of rehabilitating his testimony, when only a portion of the recording was relevant to rebut the prior inconsistent statement used by the prosecution for impeachment purposes. People v. DelGuidice, 199 Colo. 41, 606 P.2d 840 (1979).

However, when victim is impeached with respect to credibility, all prior consistent statements are admissible, not just those that are directly related to specific facts in question. People v. Tyler, 745 P.2d 257 (Colo. App. 1987); People v. Halstead, 881 P.2d 401 (Colo. App. 1994); People v. Elie, 148 P.3d 359 (Colo. App. 2006).

Colorado permits an extrajudicial identification of a...

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