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RULES OF EVIDENCE

ARTICLE VIII. HEARSAY

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 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;

(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.

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).

 

2016 NHRE Update Committee Note

The 2016 amendment made stylistic changes, and one substantive change to the rule.

The 2016 amendment added the last sentence of (d)(2). The Committee notes that this amendment was made to Federal Rule of Evidence 801 after New Hampshire adopted the federal rules in 1985, but the New Hampshire rule was never updated. For additional guidance regarding changes to the rule see the notes following Federal Rules of Evidence 801 (Notes of Advisory Committee on 1997 amendment).

 


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