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

(a) Statement. ''Statement'' means a person's oral assertion, written assertion, or nonverbal conduct, 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 current trial or hearing; and

(2) A party offers in evidence to prove the truth of the matter asserted in the statement.

(d) Statements that are not hearsay. A statement that meets one of 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 was given under penalty of perjury at a trial, hearing, or other proceeding or in a deposition; or

(B) Is consistent with the declarant's testimony and is offered:

(i) 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

(ii) to rehabilitate the declarant's credibility as a witness when attacked on another ground; 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, but was not made to the principal or employer;

(D) Was made by the party's agent or employee on a matter within the scope of that relationship and while it existed, but was not made to the principal or employer; or

(E) Was made by the party's coconspirator during and in furtherance of the conspiracy. The statement must be considered but does not by itself establish the declarant's authority under (C), the existence or scope of the relationship under (D), or the existence of the conspiracy or participation in it under (E).

Committee Notes

Advisory Committee Note – August 2018 This amendment affects both the admissibility and the probative effect of a prior consistent statement. It is designed to bring Maine Rule of Evidence 801(d)(1) into conformity with the corresponding federal rule as amended in 2014. With the change, a fact-finder can now consider an admissible prior consistent statement both for its rehabilitative and substantive effect. Under former Maine Rule of Evidence 801(d)(1), a prior consistent statement could be admitted only to rebut an express or implied attack on witness credibility based on "recent fabrication or improper influence or motive." Under the new rule language, a prior consistent statement is admissible when relevant to rehabilitate a declarant's credibility when attacked on any ground. In the past, a Maine jury could consider a prior consistent statement only as evidence of the credibility of the witness, and not as evidence of the truth of the underlying substantive matter. See M.R. Evid. 801 Advisers' Note to former M.R. Evid. 801 (February 2, 1976). On the other hand, Federal Rule of Evidence 801(d) has been construed to allow prior consistent statements to be considered as substantive evidence as well as rehabilitative of credibility. The existing requirement that a prior consistent statement offered to rebut an attack on credibility based on recent fabrication or improper influence or motive must have been made prior to the time of the asserted fabrication or improper influence or motive is not affected by this change. On the other hand, if the prior consistent statement is relevant to rebut an attack on credibility on some other ground, there is no absolute requirement that it antedate a prior inconsistent statement in order to be admissible under this Rule. It would be admissible under the amended Rule under any circumstances in which it would be relevant to rehabilitate the credibility of the witness. The following excerpt from the Advisory Committee Note to the 2014 amendment to the Federal Rule also applies to the revised Maine rule: Though the original Rule 801(d)(1)(B) provided for substantive use of certain prior consistent statements, the scope of that Rule was limited. The Rule covered only those consistent statements that were offered to rebut charges of recent fabrication or improper motive or influence. The Rule did not, for example, provide for substantive admissibility of consistent statements that are probative to explain what otherwise appears to be an inconsistency in the witness's testimony. Nor did it cover consistent statements that would be probative to rebut a charge of faulty memory. Thus, the Rule left any prior consistent statements potentially admissible only for the limited purpose of rehabilitating a witness's credibility. The original Rule also led to some conflict in the cases; some courts distinguished between substantive and rehabilitative use for prior consistent statements, while others appeared to hold that prior consistent statements must be admissible under Rule 801(d)(1)(B) or not at all. The amendment retains the requirement set forth in Tome v. United States , 513 U.S. 150 (1995): that under Rule 801(d)(1)(B), a consistent statement offered to rebut a charge of recent fabrication o[r] improper influence or motive must have been made before the alleged fabrication or improper influence or motive arose. The intent of the amendment is to extend substantive effect to consistent statements that rebut other attacks on a witness—such as the charges of inconsistency or faulty memory. The amendment does not change the traditional and well-accepted limits on bringing prior consistent statements before the factfinder for credibility purposes. It does not allow impermissible bolstering of a witness. As before, prior consistent statements under the amendment may be brought before the factfinder only if they properly rehabilitate a witness whose credibility has been attacked. As before, to be admissible for rehabilitation, a prior consistent statement must satisfy the strictures of Rule 403. As before, the trial court has ample discretion to exclude prior consistent statements that are cumulative accounts of an event. The amendment does not make any consistent statement admissible that was not admissible previously—the only difference is that prior consistent statements otherwise admissible for rehabilitation are now admissible substantively as well.

Maine Restyling Note [November 2014] Maine Rule 801 is substantially similar Federal Rule 801, except that the Maine Rule is structured somewhat differently with respect to the admissibility of prior consistent statements. Also, Maine excludes from Rule 801(b)(2) "in-house" statements made by an agent, employee, or authorized person. These distinctions have been carried over as part of the restyling process. Federal Committee Restyling Note The language of Rule 801 has been amended as part of the general restyling of the Evidence Rules to make them more easily understood and to make style and terminology consistent throughout the rules. These changes are intended to be stylistic only. There is no intent to change any result in any ruling on evidence admissibility. Statements falling under the hearsay exclusion provided by Rule 801(d)(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 804(b)(3) exception for declarations against interest. No change in application of the exclusion is intended.

Advisers' Note to former M.R. Evid. 801 (February 2, 1976) The definitions in this rule pose some problems and bring about some changes in Maine law. Subdivision (a) excludes from the operation of the hearsay rule all evidence of conduct not intended as an assertion. In addition to verbal assertions, "statement" includes nonverbal conduct, such as pointing at someone, which is assertive in nature. ("That's the man!") When an assertion is intended is a preliminary question for the court, and often a difficult one. Subdivision (c) embodies in the definition of "hearsay" a statement, as defined in (a), other than one made on the witness stand, offered to prove the truth of the matter asserted. This is familiar law. See, e.g., Rockland & Rockport Lime Co. v. Coe-Mortimer Co., 115 Me. 184, 98 A. 657 (1916). Where the fact that the words were spoken is relevant, as words of offer and acceptance in a contract action or slanderous words in a defamation case, there is no hearsay problem. The witness on the stand can be cross-examined as to what was said and its truth is not in issue. Subdivision (d) expands what is not hearsay. The importance of excluding a statement from the definition of hearsay is that it becomes admissible as substantive evidence. Subsection (1) changes the Maine law with respect to prior inconsistent statements of a witness. Traditionally, evidence of such a statement has been admissible only to impeach the testimony of the witness on the stand and not for its truth. State v. Fournier, 267 A.2d 638, 640 (Me. 1970). An instruction to this effect is, however, hard for the jury to comprehend. Under this rule when the declarant actually testifies as a witness, the jury can judge his demeanor and his credibility can be tested by cross-examination. If the prior inconsistent statement was previously given under oath subject to the penalty of perjury at a trial or other proceeding, it becomes admissible for its truth and not merely to impeach. When the jury decides whether the truth is what the witness now says in court or what he swore to before, it is still deciding from what it sees and hears in court. As originally proposed by the Supreme Court, the rule did not require the prior statement to be under oath in order for it to be admissible as substantive evidence. The Federal Rule as enacted by Congress does require an oath, and the Court accepts this requirement as desirable. While the sanctity attributed to the oath is less than it once was, a sworn statement is a solemn undertaking, subject to the perjury penalty, and inherently much more credible than a mere unsworn statement. If there were no requirement for an oath, it would be possible to get a case to the jury when the only evidence of an essential fact was a casual out-of-court statement which the declarant repudiates in court under oath. Any prior inconsistent statement not under oath is still admissible for the purpose of impeachment, as it is under present law. The concluding sentence limiting a prior consistent statement, whether or not under oath, to use in rebuttal of a claim of recent fabrication or improper influence or motive states the present Maine law. Although probably unnecessary, it is included here for the sake of clarity. One reason for including it is to emphasize the difference from the Federal Rule, which makes a prior consistent statement substantive evidence. Subsection (2) deals with admissions by a party-opponent. There has been a learned dispute over whether a party's admissions are admissible as an exception to the hearsay rule or are not classified as hearsay at all. This rule takes the latter view. In either event, they are admissible. A party's own statement is the classic example of an admission. It is often confused with a statement against interest, a hearsay exception covered in Rule 804(b)(3). An admission may be made only by a party. It need not be of his own knowledge, it need not be contrary to his interest when made, and it is not necessary that the party be unavailable at trial. A statement against interest need not be, and usually is not, made by a party. It must be contrary to the declarant's interest when made, and the declarant must be unavailable at trial. Subsection (2)(B), covering adoptive admissions, is in accord with Maine law. Adoption may be manifested by words or by silence. Silence may be a tacit admission of facts stated in ones hearing under circumstances such as naturally call for a reply if no admission is intended. Gerulis v. Viens, 130 Me. 378, 156 A. 37 8 (1931). The party must have heard and understood the statement and have been at liberty to reply. Subsection (2)(C) makes admissible statements made by a person authorized by a party to make a statement to a third person concerning the subject. Statements made by the agent to the principal are not admissions of the principal. This is in accord with Maine law. Warner v. Maine Central R. R., 111 Me. 149, 88 A. 403 (1913). Subsection (2)(D) makes admissible an out-of-court statement of an agent or servant concerning a matter within the scope of his employment, but not to his principal or employer, made during the existence of the relationship. The traditional rule has been to apply the usual agency test and determine whether the statement was authorized by the principal. The difficulty with this is that very rarely is an agent employed to make damaging statements. The truck driver is hired to drive, not to talk. The subsection at least formally changes Maine law. In practice, however, another basis for admissibility has frequently been found, such as a spontaneous statement, part of the res gestae and the like, often by stretching those concepts to or beyond the breaking point. Subsection (2)(E) making admissible the statements of a co-conspirator of a party during the course and in furtherance of the conspiracy is in accord with Maine law. See State v. Vetrano, 121 Me. 368, 117 A. 460 (1922). It is consistent with the position of the Supreme Court in denying admissibility to statements made after the objectives of the conspiracy have either failed or been achieved. Krulewitch v. United States, 336 U. S. 440, 69 S.Ct. 716 (1949). There are three departures from the Federal Rule. One already mentioned is the difference in treatment of a prior consistent statement. The other two are in subdivision (d)(2)(C) and (D), in both of which statements made by an agent or servant to his employer are not admissions against the employer, as they are under the Federal Rule. Explanation of Amendment (October 1, 1976) The purpose of this amendment was to exclude from the category of hearsay a statement of prior identification of a person made by a declarant who testifies at the trial and is subject to cross-examination. It restores a provision in the Tentative Draft of the rules which was in the Supreme Court's proposed rule and in the bill as it passed the House of Representatives. When the Tentative Draft was submitted to the Bar, no adverse comments on the rule were received. The provision was deleted by Congress in the final version of the rule in the face of a threatened filibuster which jeopardized passage of the bill. The Court on recommendation of the Evidence Rules Committee also deleted it solely to conform to the Federal Rule as enacted by Congress. Congress restored the provision on October 16, 1975, so the reason for its deletion from the Maine rule no longer exists.

Advisory Committee Note (April 1, 1998 Amendment) This amendment is proposed to bring Maine Rule 801(d)(2) into conformity with its federal counterpart as amended in 1997. The amendment resolves a previously unresolved issue in Maine, namely whether a hearsay statement can be used to prove its own foundation as a vicarious admission. See Field and Murray, Maine Evidence (4th Ed.) §§ 801.7 and 801.8. Under the rule as amended, the hearsay statements could be used to prove the foundation for the vicarious admissions, but would not alone be sufficient proof of such foundation without some independent evidence.