TITLE EIGHT — HEARSAY
Rule 801. Definitions
Rule. The following definitions apply under this:
Statement. “Statement” means a person’s oral assertion, written assertion, or nonverbal conduct, if the person intended it as an assertion.
Conduct Not Intended as an Assertion. Conduct that the person did not intend as an assertion is not a statement, and evidence of such conduct is not hearsay, even though it permits an inference as to what the person believed.
Written and Transmitted Assertions. A written assertion includes an assertion transmitted in a Discord channel or direct message, in the game environment by chat or by voice, over the Dispatch radio channel, in a document filed through the electronic filing system, or by any other electronic means. The medium of transmission does not affect whether the assertion is a statement.
Output Not Made by a Person Is Not a Statement. An entry, record, reading, timestamp, or other output generated by a machine, a program, a game system, or an automated process, without the intervention of a person in the making of the particular entry, is not a statement, because it has no declarant. Such output is not hearsay, and its admissibility depends upon relevance under Rule 401, upon authentication under Rule 901, Rule 1108, and Rule 1109, and upon a showing under Rule 901(2)(g) that the process or system produces an accurate result.
Mixed Records. Where a record contains both output described in paragraph (c) and information supplied by a person, the portion supplied by a person is a statement, and its admissibility is governed by this Title. The portion generated without the intervention of a person is not a statement and adds no level of hearsay, as Rule 805(4) provides.
Declarant. “Declarant” means the person who made the statement. A declarant shall be a person. A machine, a program, a game system, or an automated process is not a declarant. Where a statement was transmitted through an account, the declarant is the person who composed and transmitted it, and not the account; the identity of that person is a question of authentication under Rule 901 and of conditional relevance under Rule 104(2).
Statements That Are Not Hearsay. A statement that meets the following conditions is not hearsay:
A Declarant-Witness’s Prior Statement. The declarant testifies and is subject to cross-examination about a prior statement, and the statement:
(i) is inconsistent with the declarant’s testimony; (ii) was made under oath before a grand jury, or at an earlier trial, a probable cause hearing, or a deposition, or in an affidavit made under the penalty of perjury; (iii) was not coerced; and (iv) is more than a mere confirmation or denial of an allegation by the interrogator; or
identifies a person as someone the declarant perceived earlier.
An Opposing Party’s Statement. The statement is offered against an opposing party and:
was made by the party;
is one the party manifested that it adopted or believed to be true;
was made by a person whom the party authorized to make a statement on the subject, or who was authorized to make true statements on the party’s behalf concerning the subject matter;
was made by the party’s agent or employee on a matter within the scope of that relationship and while it existed; or
was made by the party’s coconspirator or joint venturer during the cooperative effort and in furtherance of its goal, if the existence of the conspiracy or joint venture is shown by evidence independent of the statement.
Application of Subdivision (4)(a)(i); Sworn Prior Inconsistent Statements.
The Requirement Is Narrow and Is Exclusive. A prior inconsistent statement is admissible as substantive evidence only where every condition of Rule 801(4)(a)(i) is satisfied. The requirement that the statement have been made under oath before a grand jury, or at an earlier trial, a probable cause hearing, or a deposition, or in an affidavit made under the penalty of perjury, is a condition of substantive admissibility and shall not be relaxed.
Statements That Do Not Qualify. A statement transmitted in a Discord channel or direct message, in the game environment, over the Dispatch radio channel, in an unsworn interview with a law enforcement officer, in an unsworn written statement, or in any other unsworn setting does not satisfy Rule 801(4)(a)(i), whatever its apparent reliability. Such a statement remains available for impeachment under Rule 613(1) and, where its conditions are met, under a provision of Rule 803 or Rule 804, but it is not substantive evidence under Rule 801(4).
The Oath. The oath or affirmation shall have been administered by a person authorized to administer it, in a form designed to impress the duty of truthfulness upon the declarant’s conscience, as Rule 603 requires. An oath administered before a grand jury by the foreperson or by the assigned state attorney, as 6 R. Stat. § 131.108 provides, satisfies this paragraph.
Coercion. Whether the statement was coerced is a preliminary question for the court under Rule 104(1). The proponent bears the burden of showing that it was not. The court shall consider the circumstances of the taking of the statement, the conduct of the interrogator, the declarant’s condition, and whether the declarant was in custody.
More Than Confirmation or Denial. A statement consisting only of an affirmative or negative response to an allegation put by an interrogator does not satisfy Rule 801(4)(a)(i)(iv). The declarant shall have supplied the substance of the assertion.
Subject to Cross-Examination. A declarant is subject to cross-examination for the purpose of Rule 801(4)(a) where the declarant testifies at the current proceeding, is placed under oath, responds willingly to questions, and is available for questioning upon the subject of the prior statement. A declarant who invokes a privilege as to the subject matter, who refuses to answer, or who is excused before cross-examination is not subject to cross-examination within the meaning of that paragraph.
Application of Subdivision (4)(a)(ii); Prior Identification.
Scope. A statement identifying a person as someone the declarant perceived earlier is not hearsay where the declarant testifies and is subject to cross-examination about it. The identification need not have been made under oath.
Identification in This World. An identification within this paragraph includes the identification of a person by the username or display name of the account through which that person acts, by an avatar, by a voice, or by an image, photograph, screenshot, recording, or array shown to the declarant.
Proof by Another Witness. Where the conditions of this subdivision are satisfied, the identification may be proved by the testimony of the declarant, by the testimony of a person who was present when the identification was made, or by a record of the identification that is otherwise admissible.
Suggestiveness. Evidence that the circumstances of an identification were unnecessarily suggestive bears upon admissibility as the law of this State otherwise provides, and upon weight. Nothing in this subdivision limits a motion to suppress an identification under Rid. R. Crim. P. 13.1.
Application of Subdivision (4)(b); Statements of an Opposing Party.
Personal Knowledge Not Required. A statement admissible under Rule 801(4)(b) is admissible although the party lacked personal knowledge of the matter asserted, and Rule 602 does not exclude it.
Adoption by Silence. A party manifests adoption of a statement by silence only where the court finds that the party heard, read, or otherwise received the statement and understood it; that the party had an opportunity to respond; that the circumstances naturally called for a response; and that a reasonable person in the party’s position would have denied the statement. Silence in response to a communication in a Discord channel or in the game environment shall be received under this paragraph only upon a showing that the party received the communication and had an opportunity to respond. Silence by a defendant in a criminal case after the defendant has been advised of the right to remain silent, and silence in the exercise of the privilege recognized by Rule 505, shall not be received as an adoption.
Coconspirator Statements; Independent Evidence. The existence of the conspiracy or joint venture, and the party’s participation in it, shall be shown by evidence independent of the statement offered. The court shall determine the existence of the conspiracy or joint venture as a preliminary question under Rule 104(1), and may admit the statement conditionally under Rule 104(2) upon the proponent’s representation that the independent evidence will be introduced. Where the independent evidence is not introduced, the statement shall be stricken upon motion.
Statements of Public Officers and Employees. In a criminal case, a statement by an officer or employee of the State, of a county, or of a municipality is not admissible against the State under Rule 801(4)(b)(iii) or Rule 801(4)(b)(iv) unless the court finds that the person was authorized to speak upon the subject on the State’s behalf. A statement of the prosecuting attorney made in the course of the proceeding, and a factual assertion contained in a charging instrument or in a pleading filed by the State, are admissible against the State.
Statements of a Party’s Attorney. A statement made by an attorney of record within the scope of the representation, in a filing, in the case’s Discord proceeding communications, or in open court, is admissible against the party as a statement of an authorized person.
Statements Offered for a Purpose Other Than Truth. A statement offered for a purpose other than to prove the truth of the matter asserted is not hearsay. Such purposes include:
Effect on the Listener or Reader. To show that a person to whom the statement was made or transmitted received notice, acquired knowledge, formed a belief, was placed in fear, was given a warning, had a motive, or acted reasonably or unreasonably in response.
Verbal Acts and Legally Operative Words. To prove the making of a statement that has legal effect independent of its truth, including words of offer, acceptance, agreement, or repudiation; words of gift, sale, transfer, or conveyance; a demand, a notice, a consent, or a revocation; and words that themselves constitute an element of a claim, a defense, or an offense, including a threat, a solicitation, an offer or acceptance of a bribe, a defamatory statement, a false report, and words of extortion, harassment, or intimidation.
State of Mind Shown Circumstantially. To show the declarant’s knowledge, belief, sanity, emotional state, or state of mind by the fact that the statement was made, where the inference does not depend upon the truth of the matter asserted.
Prior Identification. To prove an identification within Rule 801(4)(a)(ii).
Falsity of the Statement. To prove that the statement was made and was false, where the falsity is a fact of consequence.
Course of an Investigation. To explain why a law enforcement officer or an investigator took a particular action, where the reason for the action is a fact of consequence in the proceeding. Evidence admitted for this purpose shall be limited to what is necessary to explain the action taken. The court shall exclude the substance of an accusation, an identification, or a narrative of the offense offered under this paragraph, and shall exclude evidence under this paragraph altogether where its probative value is substantially outweighed by the danger that the trier of fact will consider it for its truth, as Rule 403 provides.
Basis of an Opinion. To disclose the basis of an expert opinion, subject to Rule 703(2), which requires that facts or data relied upon be independently admissible.
Limiting Instruction. Where a statement is admitted for a purpose other than truth, the court shall, on timely request, restrict the evidence to its proper scope and instruct the trier of fact accordingly, as Rule 105 provides. The proponent shall state the non-hearsay purpose at the time the statement is offered, and the court may require the proponent to do so before the statement is received.
Unavailability. For the purpose of this Title, whether a declarant is unavailable as a witness is determined under Rule 804(1).