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  • Writer's pictureBrian Foley

Montgomery County Criminal Defense Attorney - Texas Rules of Evidence Series - RULE 801 Hearsay

Montgomery County Criminal Defense Attorney - Brian Foley - Board Certified in Criminal Law.

We have finally reached the rule against hearsay. Well technically that is 802 but here we are at 801 which is the definition of hearsay. The 800 series rules about hearsay might be the most famous and definitely the most misunderstood legal concepts other than property law's rule against perpetuities.

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.

Simple right? If you didn't say it AT THIS TRIAL RIGHT NOW and you are trying to get the jury to believe the statement is true, then its hearsay.

You have no idea how difficult it is to get lawyers to understand this. This has been the law for over 30 years and there are Judges to this day that will laugh at you if you object to hearsay when a witness tries to testify to their own prior statement. Did you catch that? Just because you are the person who said the statement before DOES NOT mean that you get to tell the jury you made the statement. The classic example in criminal law is a criminal defendant trying to testify, "I told the police I didn't even have a gun." This is hearsay because the statement was not made while testifying at the current trial or hearing and it is being offered to prove the truth of the statement that the defendant didn't in fact have a gun. It doesn't matter that the witness is trying to tell the jury about a statement that they made themselves. It is still deemed to be unreliable under the law and it cannot be offered.

Now take that same statement by the defendant. If the prosecutor wants to offer that same statement she could call a police officer to the witness stand to testify the defendant said "I told the police I didn't even have a gun." Then it is admissible. Why you ask? Because of 801 (e)(2) or what is referred to by lawyers as "admission by a party opponent." If the other party in the law suit said it, you can hold it against them.

What about things the victim said. Can a criminal defendant admit these statements under 801 (e)(2) as a party opponent admission? No. Because the State is the other party, not the victim. Owens v. State, 916 S.W.2d 713, 717-18 (Tex.App. - Waco 1996, no pet.) ("The State, not the victim, is the party-opponent of the accused in a criminal proceeding."); Halstead v. State, 891 S.W.2d 11, 12 n.1 (Tex.App. - Austin 1994, no pet.) ( "We conclude that the complainant in a criminal prosecution is not a party within the meaning of Rule 801(e)(2)").

Other Highlights to Rule 801 is the definition of statement to include nonverbal conduct that a person intended as a substitute for verbal expression. Like if a victim made a choking gesture to the police to indicate what happened when the assault took place. This, if repeated, could be hearsay. Pro tip: I would also object to them acting it out in court if they tried to side step the other hearsay objection.

"Matter Asserted" includes both the explicit assertion but also implied assertions if the probative value of the statement as offered flows from the declarant's belief about the matter.


One important distinction in understanding hearsay is the different between an exclusion and an exception. Rules 803 and 804 provide different exceptions to the rule against hearsay. Meaning that the statements are in fact hearsay but should be admissible into evidence because they meet an exception like "excited utterance" or "dying declarations." 801(e) spells out exclusions from the definition of hearsay. Meaning that certain statements are considered not to be hearsay at all.

These are:

1. A prior inconsistent statement if previously subjected to cross examination.

2. A prior consistent statement if offered to rebut a claim of making it up sometime recently.

3. A statement of identifying another individual.

4. A statement by an opposing party when offered against that party.

5. In a civil case the statement of a person who gave a deposition.

That means if you are trying to rebut the claim by a prosecutor that you recently fabricated your alibi, a defendant could admit a prior statement made about the alibi. And it wouldn't be hearsay at all.

Maybe the most difficult thing to understand about this rule is that if something is being offered "not for the truth of the matter asserted" but for some other purpose, then it is also NOT hearsay. So for example If a defendant wants to testify in a cruelty to animals trial that he said, "I am a gorilla." This could be offered to show the mental state of the defendant being in poor condition at the time of the crime. It could not be offered to try to prove that the defendant is actually a gorilla. But here the matter asserted in the statement, that the defendant is a gorilla, is not what is important. The fact that the statement was made at all is what is important. That means that regardless of its truth, it may be admissible to prove that it was said. It would not be considered an exception under 803(3) Then existing mental, emotional, or physical condition because although it reveals the then existing mental condition it does not do so expressly in the statement.

Are you confused yet? Just wait until we get to all the exceptions in 803 and 804.

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

(a) Statement. “Statement” means a person’s oral or written verbal expression, or nonverbal conduct that a person intended as a substitute for verbal expression.

(b) Declarant. “Declarant” means the person who made the statement.

(c) Matter Asserted. “Matter asserted” means: (1) any matter a declarant explicitly asserts; and

(2) any matter implied by a statement, if the probative value of the statement as offered flows from the declarant’s belief about the matter.

(d) 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.

(e) 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: (i) when offered in a civil case, was given under penalty of perjury at a trial, hearing, or other proceeding or in a deposition; or

(ii) when offered in a criminal case, was given under penalty of perjury at a trial,

hearing, or other proceeding—except a grand jury proceeding—or in a deposition;

(B) is consistent with the declarant’s testimony and is offered 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

(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.

(3) A Deponent’s Statement. In a civil case, the statement was made in a deposition taken in the

same proceeding. “Same proceeding” is defined in Rule of Civil Procedure 203.6(b). The

deponent’s unavailability as a witness is not a requirement for admissibility.

Comment to 2015 Restyling: Statements falling under the hearsay exclusion provided by Rule 801(e)(2) are no longer referred to as “admissions” in the title to the subdivision. The term “admissions” is confusing because not all statements covered by the exclusion are admissions in the colloquial sense—a statement can be within the exclusion even if it “admitted” nothing and was not against the party’s interest when made. The term “admissions” also raises confusion in comparison with the Rule 803(24) exception for declarations against interest. No change in application of the exclusion is intended. The deletion of former Rule 801(e)(1)(D), which cross-references Code of Criminal Procedure art. 38.071, is not intended as a substantive change. Including this cross-reference made sense when the Texas Rules of Criminal Evidence were first promulgated, but with subsequent changes to the statutory provision, its inclusion is no longer appropriate. The version of article 38.071 that was initially cross-referenced in the Rules of Criminal Evidence required the declarant-victim to be available to testify at the trial. That requirement has since been deleted from the statute, and the statute no longer requires either the availability or testimony of the declarant-victim. Thus, cross-referencing the statute in Rule 801(e)(1), which applies only when the declarant testifies at trial about the prior statement, no longer makes sense. Moreover, article 38.071 is but one of a number of statutes that mandate the admission of certain hearsay statements in particular circumstances. See, e.g., Code of Criminal Procedure art. 38.072; Family Code §§ 54.031, 104.002, 104.006. These statutory provisions take precedence over the general rule excluding hearsay, see Rules 101(c) and 802, and there is no apparent justification for cross-referencing article 38.071 and not all other such provisions.


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