Rule 2:801.DEFINITIONS

Rule 2:801 supplies the vocabulary the rest of the hearsay article builds on. A “statement” is an oral or written assertion, or nonverbal conduct intended as an assertion — so a nod or a pointed gesture can qualify if the person meant it to communicate something. A “declarant” is the person who makes the statement. And “hearsay” is a statement, other than one the declarant makes while testifying at the current trial or hearing, offered in evidence to prove the truth of what it asserts. That last element — offered to prove the truth of the matter asserted — is what separates hearsay from the many other reasons an out-of-court statement might come into evidence, such as showing its effect on a listener rather than proving the statement’s content true.

Subdivision (d) turns to a recurring scenario: a witness who testifies, live or by deposition, and made some prior statement about the same subject. That prior statement is hearsay if offered to prove the truth of what it asserts, but it may come in for all purposes if it qualifies under a hearsay exception in Rule 2:803 or 2:804. Apart from that route, and if not excluded by another Rule of Evidence or a statute, the rule opens two more limited doors for prior statements of a testifying witness.

First, a prior statement inconsistent with the witness’s hearing testimony is admissible for impeachment purposes when offered under Rule 2:613 — though that use goes only to credibility, not to proving the statement’s content true, unless it separately qualifies under Rule 2:803 or 2:804. Second, a prior consistent statement is admissible to rehabilitate the witness’s credibility, but only in two situations: when the witness has already been impeached with a prior inconsistent statement under Rule 2:607, Rule 2:613, or subpart (d)(1) itself; or when the witness has been impeached based on an alleged improper motive to falsify testimony — bias, interest, corruption, a relationship to a party or cause, or a charge that the testimony is a recent fabrication — and the proponent shows the consistent statement was made before that motive arose.