2006 Nebraska Revised Statutes - § 27-801 — Rule 801. Definitions; statement, declarant, hearsay; statements which are not hearsay.

Section 27-801
Rule 801. Definitions; statement, declarant, hearsay; statements which are not hearsay.

The following definitions apply under this article:

(1) A statement is (a) an oral or written assertion or (b) nonverbal conduct of a person, if it is intended by him as an assertion;

(2) A declarant is a person who makes a statement;

(3) Hearsay is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted; and

(4) A statement is not hearsay if:

(a) The declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is (i) inconsistent with his testimony and was given under oath subject to the penalty of perjury at a trial, hearing, or other proceeding, or in a deposition, or (ii) consistent with his testimony and is offered to rebut an express or implied charge against him of recent fabrication or improper influence or motive, or

(b) The statement is offered against a party and is (i) his own statement, in either his individual or a representative capacity, or (ii) a statement of which he has manifested his adoption or belief in its truth, or (iii) a statement by a person authorized by him to make a statement concerning the subject, or (iv) a statement by his agent or servant within the scope of his agency or employment, or (v) a statement by a coconspirator of a party during the course and in furtherance of the conspiracy.

Source:

Laws 1975, LB 279, § 55

Annotations:

Report made at request of defendant in regard to condition of waste disposal system was not admissible under subsection (4)(b)(iv) of this section, where person authorized to make report was employed for the purpose of giving technical advice to defendant. Kliment v. National Farms, Inc., 245 Neb. 596, 514 N.W.2d 315 (1994).

A witness' pretrial statement identifying a defendant as the perpetrator of a crime was hearsay pursuant to subsection (3) of this section and, therefore, was inadmissible. State v. Salamon, 241 Neb. 878, 491 N.W.2d 690 (1992).

An insurer's estimate of the cost of repairing damage to a vehicle, without further testimony by the insurer or the person making the repairs, is inadmissible hearsay testimony. State v. Larkin, 222 Neb. 398, 383 N.W.2d 804 (1986).

It is elementary that out-of-court statements offered to prove the truth of the matter asserted are hearsay. State v. Marco, 220 Neb. 96, 368 N.W.2d 470 (1985).

Taped interviews of an accused while under the influence of an inhibition-reducing drug did not relate to the mental state of the accused at the time of the acts charged and were, therefor, hearsay and inadmissible. State v. Rowe, 210 Neb. 419, 315 N.W.2d 250 (1982).

Where testimony of an out-of-court assertion made by someone other than the testifier is offered to prove the truth of the out-of-court assertion, and is partly damaging and partly helpful to the interests of the person who made the out-of-court assertion, it is hearsay and its admission is barred by this section. Belitz v. Suhr, 208 Neb. 280, 303 N.W.2d 284 (1981).

An exculpatory statement made by an accused to police one day after arrest is hearsay and inadmissible at trial before the accused testifies. State v. Pelton, 197 Neb. 412, 249 N.W.2d 484 (1977).

A prior consistent statement has no value as substantive evidence of the truth of its contents, nor as rehabilitation of the credibility of the witness, if it is made at the time when the witness clearly has a motive to fabricate; such statements are not admissible unless the statement has significant probative force bearing on credibility apart from mere repetition. State v. Anderson, 1 Neb. App. 914, 511 N.W.2d 174 (1993).2. Not hearsay

Prior inconsistent sworn statements previously characterized as hearsay available for the purpose of impeachment only are now substantive evidence of fact contained in the statement, provided the requirements prescribed by subsection (4)(a)(i) of this section are satisfied. Behm v. Northwestern Bell Tel. Co., 241 Neb. 838, 491 N.W.2d 334 (1992).

In an action against an estate, a statement made by the decedent constitutes a party admission, under subsection (4)(b) of this section. In re Estate of Krueger, 235 Neb. 518, 455 N.W.2d 809 (1990).

Under subsection (4)(b)(i) of this section, a statement of a party defendant is not hearsay. State v. Boham, 233 Neb. 679, 447 N.W.2d 485 (1989).

Included within the definition of a statement for hearsay purposes are oral or written assertions, but oral assertions contained in remarks section of police complaint report were not hearsay statements because they were not offered to prove the truth of the matter asserted. State v. Wilson, 225 Neb. 466, 406 N.W.2d 123 (1987).

Testimony by police officers and social workers regarding statements made by declarants was offered to rebut a charge of recent fabrication, and was therefore admissible. In re Interest of D.J. et al., 224 Neb. 226, 397 N.W.2d 616 (1986).

A verbal act, which is an operative fact resulting in legal consequences, is not hearsay within the meaning of Neb. Evid. R. 801(3) and, therefore, is not inadmissible hearsay prohibited by Neb. Evid. R. 802. Alliance Nat. Bank v. State Surety Co., 223 Neb. 403, 390 N.W.2d 487 (1986).

A statement by a party's agent or servant within the scope of agency or employment offered against the party is not hearsay. Bump v. Firemen's Ins. Co., 221 Neb. 678, 380 N.W.2d 268 (1986).

Under this section, evidence of a consistent statement is not hearsay if the declarant testifies and is subject to cross-examination and the statement is consistent with his testimony and is offered to rebut an express or implied charge against him of recent fabrication or improper influence or motive. State v. Gregory, 220 Neb. 778, 371 N.W.2d 754 (1985).

Statement made in presence of allegedly estranged wife, by husband, to the effect that they were back together again, to which wife agreed "everything is going perfect," was admissible as an exception to the hearsay rule. In re Interest of M., 215 Neb. 383, 338 N.W.2d 764 (1983).

Testimony about a conversation offered to corroborate allegations that certain statements were made but not to prove that the statements were true is not hearsay. Gray v. Maxwell, 206 Neb. 385, 293 N.W.2d 90.

Where a conversation between two parties is introduced to show the nature of the relationship between the parties, and is not offered for the truth of those statements, the conversation is not hearsay. Murdoch v. Murdoch, 200 Neb. 429, 264 N.W.2d 183 (1978).

Where a prior statement is relevant and meets the statutory requirements of Neb. Evid. R. 801(4)(a)(ii), it is not rendered inadmissible because it was made after the impeaching statement. State v. Austin, 1 Neb. App. 716, 510 N.W.2d 375 (1993).

In an oral contract dispute where defendant denied the existence of a contract, plaintiff introduced defendant's petition from another case as an admission against interest, since it applied to the same contract at issue and was signed by defendant's attorney on behalf of the company. Nichols Media Consultants, Inc. v. Ken Morehead Inv. Co., Inc., 1 Neb. App. 220, 491 N.W.2d 368 (1992).3. Miscellaneous

Since a prior consistent statement may be accorded substantive use only if it is used to rebut an express or implied charge, impeachment of the witness is a precondition. State v. Smith, 241 Neb. 311, 488 N.W.2d 33 (1992).

The victim is not a "party" to a criminal case for the purposes of impeachment by a prior inconsistent statement. State v. Antillon, 229 Neb. 348, 426 N.W.2d 533 (1988).

As a result of Rule 801(4)(a) of the Nebraska Evidence Rules, what was previously characterized as hearsay available for the purpose of impeachment only has now become substantive evidence of fact contained in the statement provided the requirements prescribed by Rule 801(4)(a) are satisfied. A proceeding contemplated by Rule 801(4)(a) is a formal action before a judicial tribunal, as well as an action before a quasi-judicial officer or board, invoked to enforce or protect a right. State v. Johnson, 220 Neb. 392, 370 N.W.2d 136 (1985).

If an attack on the credibility of a witness through use of an inconsistent statement is accompanied by or interpretable as a charge of a plan or contrivance to give false testimony, proof of a prior consistent statement before the plan or contrivance was formed tends strongly to disprove that the testimony was the result of contrivance. State v. Johnson, 220 Neb. 392, 370 N.W.2d 136 (1985).

A prior inconsistent statement of a witness was admissible as substantive evidence when the statement was sworn testimony at a prior preliminary hearing. State v. Jackson, 217 Neb. 363, 348 N.W.2d 876 (1984).

A prior consistent statement is not admissible as substantive corroborative evidence unless it fits the exception of section 27-804(4)(a)(ii), R.R.S.1943. State v. Packett, 206 Neb. 548, 294 N.W.2d 605 (1980).

Circumstances under which prior inconsistent statements admissible explained. State v. Packett, 206 Neb. 548, 294 N.W.2d 605 (1980).

Conviction for possession of marijuana with intent to distribute reversed where hearsay testimony of an alleged coconspirator improperly received. State v. Bobo, 198 Neb. 551, 253 N.W.2d 857 (1977).

This section makes prior inconsistent statements of a witness admissible as substantive evidence only if they were made under oath. State v. Isley, 195 Neb. 539, 239 N.W.2d 262 (1976).

~Reissue Revised Statutes of Nebraska