Exemptions From Hearsay

Rule 801(d) Statements which are not hearsay. A statement is not hearsay if:

  1. militarydefenselawyers380Prior 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, and was given under oath subject to the penalty of perjury at a trial, hearing, or other
    proceeding, or in a deposition 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;
    1. A prior statement of identification of a person made after perceiving the person is
    admissible as substantive evidence of guilt. Rule 801(d)(1)(c). The foundation
    includes: The witness is on the stand subject to cross-examination; the testifying
    witness made a prior out-of-court identification of a person; where and when the
    identification occurred; and who was present.
  2. Admissions of a Party-Opponent. Rule 801(d)(2)(A).
    Rule 801(d)(2). A statement is not hearsay if . . . [t]he statement is offered against a party and is (A) the
    party’s own statement in either the party’s individual or representative capacity, or (B) a statement of
    which the party has manifested the party’s 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 of the agent or
    servant, 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).
    1. The logical underpinning of the admissions doctrine derives from the
      simple fact that a party cannot be heard to complain that it should have
      an opportunity to cross-examine itself. There are three kinds of
      admissions: personal, adoptive, and vicarious.
    2. Personal admissions are statements by the party, and should not be
      confused with statements against interest in Rule 804(b)(3). The latter
      derives its guarantee of reliability from the fact that it was against the
      declarant’s interest when made. No similar rule is imposed on the
      admission, although for the accused there frequently will be
      constitutional and statutory rights that must be protected. The proponent
      must show: The declarant, identified by the witness as the accused, made
      a statement; if rights warning necessary, the accused was warned of his
      or her rights and waived them; the oral or written statement was
      voluntary; and the statement is offered against the accused.
    3. Adoptive admissions. See, e.g., United States v. Potter, 14 M.J. 978
      (N.M.C.M.R. 1982) (accused adopted another’s statement when he
      introduced it at his own magistrate’s hearing). See also United States v.
      Datz, 61 M.J. 37 (2005) (holding that a nod in response to equivocal and
      confusing compound questions was not an adoptive admission). The
      doctrine requires proof that the declarant made a statement in the party’s
      presence; the party heard, read, or understood the statement; the party
      made a statement which expressed agreement with the declarant’s
      statement; and the statement is offered against the party. Where a “tacit
      admission” is averred, that is, an adoption by silence, the critical inquiry
      is whether the accused was faced with self-incrimination issues (i.e.,
      official questioning). If not, the proponent must show the accused had
      the opportunity to deny the statement, that a reasonable innocent person
      would have denied it, and that the accused did not do so. While this
      exemption can cover authorized spokespersons or agents, the most
      common use is the co-conspirator’s statement: the proponent must show
      a conspiracy existed; the declarant was part of the conspiracy at time of
      statement; the statement was made in furtherance of the conspiracy; and
      the statement was offered against the accused.

Admissions of a Party-Opponent

Personal admissions are statements by the party