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Rule 801. ?DefinitionsThat Apply to This Article; Exclusions from Hearsay.

 

(a)      ? Statement. ?Statement? means a person?soral assertion, written assertion, or nonverbal conduct, if the person intendedit as an assertion.

 

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

 

(c)      ? Hearsay. ?Hearsay? means a statementthat:

(c)(1)   the declarant does not make while testifying at thecurrent trial or hearing; and

 

(c)(2)   a party offers inevidence 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:

(d)(1)   Declarant-Witness?sPrior Statement. The declarant testifiesand is subject to cross-examination about a prior statement, and the statement:

 

(d)(1)(A)   is inconsistent with the declarant's testimony or the declarant denieshaving made the statement or has forgotten, or

 

(d)(1)(B)   is consistent with the declarant's testimonyand is offered to rebut an express or implied charge that the declarant recently fabricated it or acted from arecent improper influence or motive in so testifying; or

 

(d)(1)(C)   identifies a person assomeone the declarant perceived earlier.

 

(d)(2)   An Opposing Party?s Statement. Thestatement is offered against an opposing party and:

 

(d)(2)(A)   was made by the partyin an individual or representative capacity;

 

(d)(2)(B)   is one the partymanifested that it adopted or believed to be true;

 

(d)(2)(C)   was made by a personwhom the party authorized to make a statement on the subject;

 

(d)(2)(D)   was made by the party?sagent or employee on a matter within the scope of that relationship and whileit existed; or

 

(d)(2)(E)   was made by the party?scoconspirator during and in furtherance of the conspiracy.

 

 

2011 Advisory Committee Note. ?The language of this rule has been amended as part of therestyling of the Evidence Rules to make them more easily understood and to makestyle and terminology consistent throughout the rules. These changes areintended to be stylistic only. There is no intent to change any result in anyruling on evidence admissibility.

 

Original Advisory Committee 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 ofEvidence (1971). It deviates from the federal rule in that it allows use ofprior statements as substantive evidence if (1) inconsistent or (2) the witnesshas forgotten, and does not require the prior statement to have been givenunder oath or subject to perjury. The former Utah rules admitted suchstatements as an exception to the hearsay rule. See California v. Green, 399U.S. 149 (1970), with respect to confrontation problems under the SixthAmendment to the United States Constitution. Subdivision (d)(1)is as originally promulgated by the United States Supreme Court with theaddition of the language "or the witness denies having made the statementor has forgotten" and is in keeping with the prior Utah rule and theactual effect on most juries.

 

Subdivision(d)(1)(B) is in substance the same as Rule 63(1), UtahRules of Evidence (1971). The Utah court has been liberal in its interpretationof the applicable rule in this general area. Statev. Sibert, 6 Utah 2d 198, 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); Statev. Vasquez, 22 Utah 2d 277, 451 P.2d 786 (1969).

 

Thesubstance of subdivision (d)(2)(A) was contained inRules 63(6) and (7), Utah Rules of Evidence (1971), as an exception to thehearsay rule.

 

Similarprovisions to subdivisions (d)(2)(B) and (C) werecontained in Rule 63(8), Utah Rules of Evidence (1971), as an exception to thehearsay rule.

 

Rule63(9), Utah Rules of Evidence (1971), was of similar substance and scope tosubdivision (d)(2)(D), except that Rule 63(9) requiredthat the declarant be unavailable beforesuch admissions are received. Adoptive and vicarious admissions have beenrecognized as admissible in criminal as well as civil cases. Statev. Kerekes, 622 P.2d 1161 (Utah 1980).

 

Statementsby a coconspirator of a party made during the course and in furtherance of theconspiracy, admissible as non-hearsay under subdivision (d)(2)(E),have traditionally 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), wasbroader than this rule in that it provided for the admission of statements madewhile 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.