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Rule 801. Definitions That Apply toThis Article; Exclusions from Hearsay

 

(a)      Statement.“Statement” means a person’s oral assertion, written assertion, or nonverbalconduct, 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 currenttrial or hearing; and

 

(2)   a partyoffers in evidence to prove the truth of the matter asserted in the statement.

 

(d)      StatementsThat Are Not Hearsay. A statement that meets the following conditions isnot hearsay:

 

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

 

(A)   isinconsistent with the declarant's testimony or the declarant denies having made the statement or hasforgotten, or

 

(B)   isconsistent with the declarant's testimony and isoffered to rebut an express or implied charge that the declarantrecently fabricated it or acted from a recent improper influence or motive inso testifying; or

 

(C)   identifiesa person as someone the declarant perceived earlier.

 

(2)   AnOpposing Party’s Statement. The statement is offered against an opposingparty and:

 

(A)   was madeby the party in an individual or representative capacity;

 

(B)   is onethe party manifested that it adopted or believed to be true;

 

(C)   was madeby a person whom the party authorized to make a statement on the subject;

 

(D)   was madeby the party’s agent or employee on a matter within the scope of thatrelationship and while it existed; or

 

(E)   was madeby the party’s coconspirator during and in furtherance of the conspiracy.

 

 

2011 Advisory CommitteeNote. – Thelanguage of this rule has been amended as part of the restyling of the EvidenceRules to make them more easily understood and to make style and terminologyconsistent throughout the rules. These changes are intended to be stylisticonly. There is no intent to change any result in any ruling on evidenceadmissibility.

 

ADVISORYCOMMITTEE NOTE

 

Subsection(a) is in accord with Rule 62(1), Utah Rules of Evidence (1971).

 

Subsection(b) is in accord with Rule 62(2), Utah Rules of Evidence (1971). The hearsayrule is not applicable in declarations of devices and machines, e.g., radar.The definition of "hearsay" in subdivision (c) is substantially thesame as Rule 63, Utah Rules of Evidence (1971).

 

Subdivision(d)(1) is similar to Rule 63(1), Utah Rules of Evidence (1971). It deviatesfrom the federal rule in that it allows use of prior statements as substantiveevidence if (1) inconsistent or (2) the witness has forgotten, and does notrequire the prior statement to have been given under oath or subject toperjury. The former Utah rules admitted such statements as an exception to thehearsay rule. See California v. Green, 399 U.S. 149 (1970), with respect toconfrontation problems under the Sixth Amendment to the United StatesConstitution. Subdivision (d)(1) is as originally promulgated by the UnitedStates Supreme Court with the addition of the language "or the witnessdenies having made the statement or has forgotten" and is in keeping withthe prior Utah rule and the actual effect on most juries.

 

Subdivision(d)(1)(B) is in substance the same as Rule 63(1), Utah Rules of Evidence(1971). The Utah court has been liberal in its interpretation of the applicablerule in this general area. State v. Sibert, 6 Utah 2d198, 310 P.2d 388 (1957).

 

Subdivision(d)(1)(C) comports with prior Utah case law. State v. Owens, 15 Utah 2d 123,388 P.2d 797 (1964); State v. Vasquez, 22 Utah 2d 277, 451 P.2d 786 (1969).

 

The substanceof subdivision (d)(2)(A) was contained in Rules 63(6) and (7), Utah Rules ofEvidence (1971), as an exception to the hearsay rule.

 

Similarprovisions to subdivisions (d)(2)(B) and (C) were contained in Rule 63(8), UtahRules of Evidence (1971), as an exception to the hearsay rule.

 

Rule 63(9),Utah Rules of Evidence (1971), was of similar substance and scope tosubdivision (d)(2)(D), except that Rule 63(9) required that the declarant be unavailable before such admissions arereceived. Adoptive and vicarious admissions have been recognized as admissiblein criminal as well as civil cases. State v. Kerekes,622 P.2d 1161 (Utah 1980).

 

Statements bya coconspirator of a party made during the course and in furtherance of theconspiracy, admissible as non-hearsay under subdivision (d)(2)(E), havetraditionally been admitted as exceptions to the hearsay rule. State v. Erwin,101 Utah 365, 120 P.2d 285 (1941). Rule 63(9)(b), Utah Rules of Evidence(1971), was broader than this rule in that it provided for the admission ofstatements made while the party and declarant wereparticipating in a plan to commit a crime or a civil wrong if the statement wasrelevant to the plan or its subject matter and made while the plan was inexistence and before its complete execution or other termination.