Hearsay and the FRE 801(d) "Not Hearsay" Exclusions

Is it "not hearsay" under 801(d)? Check in this order

Is it a statement? A statement is a person's spoken or written assertion, or conduct meant as one. If not, the hearsay rule doesn't apply.
Is it offered to prove that what it says is true? If it's offered for another reason, such as notice or words with legal effect, it isn't hearsay.
Does the speaker testify at this trial and is the speaker subject to cross-examination about it? If yes, check 801(d)(1): an inconsistent statement made under penalty of perjury at a trial, hearing, other proceeding or deposition (that whole condition is scheduled to drop on December 1, 2026), a consistent statement offered to rebut a charge of recent fabrication or improper influence or motive, or to rehabilitate credibility attacked on another ground, or an identification of a person the speaker perceived earlier.
Is it offered against a party who said it or adopted it, who authorized the speaker to speak on the subject, or whose agent or employee (on a matter within the scope of that relationship, while it existed) or co-conspirator (during and in furtherance of the conspiracy) said it? If yes, check 801(d)(2).
If neither fits, it's hearsay. Then look for an exception in FRE 803, 804 or 807 (hearsay exceptions lesson).

Sources: FRE 801 and FRE 802 (Cornell LII), checked 2026-10-23; Supreme Court order of April 8, 2026 (uscourts.gov), checked 2026-10-23.

Answer first: Hearsay is an out-of-court statement offered to prove that what it says is true. FRE 801(c) defines it, and FRE 802 makes it inadmissible unless a rule allows it. Before reaching any exception, check FRE 801(d). It defines two groups of statements as not hearsay at all: certain prior statements by a witness who testifies (801(d)(1)) and statements by an opposing party (801(d)(2)).

Rule statements

Definition. Under FRE 801(c), hearsay is a statement the declarant made other than while testifying at the current trial or hearing, offered "to prove the truth of the matter asserted in the statement."
Statement. A statement is a person's oral or written assertion, or nonverbal conduct the person intended as an assertion (FRE 801(a)). Animals and machines aren't declarants: FRE 801(b) defines a declarant as "the person who made the statement."
Not offered for truth. Some statements aren't hearsay because they're offered for another purpose (FRE 801(c): only statements offered for their truth are hearsay). Examples: words with legal effect (the offer itself, a threat, defamatory words), the effect on the listener (notice), and circumstantial evidence of the speaker's state of mind.

The 801(d) exclusions

801(d)(1): prior statements of a witness. The declarant must testify and be subject to cross-examination about the earlier statement. The statement must also be one of these:

(A) Inconsistent with the trial testimony and given under penalty of perjury at a trial, hearing, other proceeding, or deposition. A plain police interview doesn't qualify. Date note: an amendment scheduled to take effect December 1, 2026 (absent congressional action) drops the penalty-of-perjury condition. From that date, any prior inconsistent statement qualifies, as long as the witness testifies and can be cross-examined about it (Supreme Court order of April 8, 2026, uscourts.gov — checked 2026-10-23).
(B) Consistent with the trial testimony and offered (i) to rebut a charge of recent fabrication or improper influence or motive, or (ii) to rehabilitate credibility after an attack on another ground. For (i), the statement must come before the alleged motive arose. Tome v. United States, 513 U.S. 150 (1995).
(C) Identification of a person the declarant perceived earlier, such as a lineup pick.

801(d)(2): opposing party's statement. The statement is offered against a party and is one of these:

(A) made by the party personally;
(B) adopted by the party, including by silence when a reasonable person would have denied it;
(C) made by a person the party authorized to speak on the subject;
(D) made by the party's agent or employee about a matter within the scope of that relationship, while it existed;
(E) made by a co-conspirator during and in furtherance of the conspiracy. The court decides the preliminary facts by a preponderance and may consider the statement itself, but the statement alone isn't enough. Bourjaily v. United States, 483 U.S. 171 (1987); FRE 801(d)(2) (final sentence).

Standing in the speaker's shoes. If a party's claim, defense or potential liability is "directly derived from a declarant or the declarant's principal," a statement that would be admissible against that declarant or principal under this rule is also admissible against the party (FRE 801(d)(2), last sentence, added by the 2024 amendment). The Committee Note's example is an estate suing for the decedent's injuries (FRE 801 and 2024 Committee Note, checked 2026-10-23).

Exceptions vs. exclusions

FRE 803, 804, and 807 are exceptions, meaning the statement is hearsay but admitted anyway. FRE 801(d) items are exclusions, meaning they're defined as not hearsay. On the MBE, the difference usually shows up in how the answer choices are worded.

Common traps

The party's own words offered by that party. 801(d)(2) works only when the statement is offered against the party who made it.
A prior inconsistent statement from an unsworn interview. Until December 1, 2026, it can't come in for its truth under 801(d)(1)(A), though it may still be used to impeach. Once the scheduled amendment takes effect (absent congressional action), it can.
Post-motive consistent statements. Under Tome, they don't fit 801(d)(1)(B)(i).
Personal knowledge. The Advisory Committee note to FRE 801(d)(2) says admissions have enjoyed freedom from "the opinion rule and the rule requiring firsthand knowledge" (FRE 801 notes, checked 2026-10-23).
Conspirator statements to police after arrest. 801(d)(2)(E) covers only statements made "during and in furtherance of the conspiracy" (FRE 801(d)(2)(E)). The Advisory Committee note ties this limit to Supreme Court decisions "denying admissibility to statements made after the objectives of the conspiracy have either failed or been achieved" (FRE 801 notes, checked 2026-10-23), so test both words.
Labeling the "it's a contract offer" words as hearsay. Words with legal effect aren't offered for their truth.

Mnemonic (optional): I C ID is common shorthand, not LearnFun-invented. For 801(d)(1), the prior statement is one that's Inconsistent, Consistent and rebutting, or an ID: "I C ID." Until December 1, 2026, the I statement must have been given under penalty of perjury at a trial, hearing, other proceeding, or deposition. After that date (absent congressional action), the I retires the oath: any prior inconsistent statement counts, as long as the witness testifies and can be cross-examined about it.

Mnemonic (LearnFun original packaging): Five S's, aimed at the speaker's side. Said it (A, the party's own words). Signed on (B, adopted, including by silence where a denial was expected). Sent to speak (C, authorized). Staff on the job (D, agent or employee, within scope, while the relationship existed). Scheme partner (E, co-conspirator, during and in furtherance). "Aimed at the speaker's side" is the reminder that it works only when offered against that party.

Practice questions (original)

Q1. In a fraud case, the plaintiff calls a former bookkeeper for the defendant company. The bookkeeper testifies that, while still employed, the company's sales director told her, "We've been inflating the shipment numbers all year." The company objects on hearsay grounds. The best ruling is: (A) Sustained, because the sales director isn't testifying. (B) Overruled, because it's a statement by the company's employee about a matter within the scope of employment, made during employment. (C) Overruled, because it's a statement against interest. (D) Sustained, because the bookkeeper lacks personal knowledge of the inflation. Answer: B. FRE 801(d)(2)(D). (A) is wrong because declarant availability is irrelevant here. (C) is wrong because 804(b)(3) requires an unavailable declarant and isn't the best answer. (D) is wrong because the bookkeeper has personal knowledge of the statement, and party admissions don't need the declarant's personal knowledge.

Q2. A witness testifies at trial that the getaway car was blue. At an earlier preliminary hearing, testifying under oath, he said it was green. Can the earlier statement be admitted to prove the car was green? Answer: Yes, both under today's rule and after the scheduled change. Today, FRE 801(d)(1)(A) needs an inconsistent statement given under penalty of perjury at a hearing (it was), from a witness who testifies and can be cross-examined (he does). The amendment scheduled for December 1, 2026 (absent congressional action) drops the oath condition, so the answer stays yes. Trap: if the earlier statement had been made in an unsworn police interview, the answer would be no before December 1, 2026 and yes after.

Q3. A defendant charged with robbery calls his sister as a witness. She testifies that the morning after the robbery, he told her, "I was at the movies all night." The prosecutor objects. The defendant doesn't testify. The best ruling under FRE 801(d) is: (A) Overruled, because it's an opposing party's statement under 801(d)(2)(A). (B) Sustained, because the defendant is offering his own statement, and 801(d)(2) applies only to statements offered against the party who made them. (C) Overruled, because the defendant could testify if he wanted to. (D) Overruled, because it's a prior consistent statement. Answer: B. (A) is the trap: the words are the defendant's, but 801(d)(2) runs only against the opposing party (FRE 801(d)(2): "offered against an opposing party"). (C) is wrong because availability isn't the test. (D) is wrong because 801(d)(1) requires the declarant to testify and be subject to cross-examination, and he hasn't testified.

Q4. A prosecution witness testifies against her former partner. On cross, the defense suggests she changed her story after the prosecutor offered her a plea deal in March. The prosecutor then offers a consistent statement she made to a friend in April, to rebut that charge. Is it admissible for its truth under 801(d)(1)(B)(i)? Answer: No. It's consistent, and it's offered to rebut a charge of improper motive, but it was made after the alleged motive arose. Tome v. United States, 513 U.S. 150 (1995), holds that the rule permits such statements "only when those statements were made before the charged fabrication, influence, or motive." Clause (ii), added in 2014, doesn't rescue it: the 2014 Committee Note says the amendment "retains the requirement set forth in Tome." Trap: a consistent statement with the right purpose and the wrong timing.

Done? Your self-score (0–100)

Next lessons

MBE is a trademark of NCBE. LearnFun is not affiliated with or endorsed by NCBE or any bar-review course. NCBE describes the exam on its MBE page (checked 2026-10-23).

Sources

FRE 801, checked 2026-10-23 (current text, with the penalty-of-perjury condition)
FRE 801(d)(1)(A) amendment, Supreme Court order of April 8, 2026 (scheduled effective December 1, 2026), checked 2026-10-23
Pending amendments list (Evidence Rule 801 under December 1, 2026), checked 2026-10-23
FRE 802, checked 2026-10-23
Federal Rules of Evidence (official PDF), checked 2026-10-23
Tome v. United States, 513 U.S. 150 (1995), checked 2026-10-23
Bourjaily v. United States, 483 U.S. 171 (1987), checked 2026-10-23
FRE 803 (exceptions), Cornell LII, checked 2026-10-23

Last checked: 2026-10-23