1. Rule 801(d) excludes two categories of second-hand statements from being defined as hearsay even though they are assertions of fact offered for their truth and sure LOOK like they are hearsay.
(a) Three types of prior statements made by testifying witnesses are excluded under 801(d)(1).
(b) Five types of statements made by or attributable to the opposing party are excluded under 801(d)(2).
2. We will not spend class time on prior witness statements, except to point out that in reality, this exclusion applies to very few prior statements by a witness. This is not a general exclusion of all prior statements made by a witness, but only three very narrowly defined situations that arise rarely. The rule is self-explanatory.
3. Of far greater importance is Rule 801(d)(2), which excludes from the definition of hearsay statements of the opposing party.
4. A statement falls into this category if it was made personally by the opposing party, adopted by the party, or can be attributed to the party on agency principles.
5. Agency includes 3 kinds of statements -- agents explicitly authorized to make statements, agents making statements about their jobs, and statements by coconspirators.
6. Despite its title (Admissions of party-opponent), there is no requirement that the statement be incriminating or 'admit" anything. Any statement by the opponent is admissible.
7. There are two peculiarities to this rule.
a) The personal knowledge rule does not apply.
b) It is one-sided in criminal cases. The prosecution may call witnesses to testify to incriminating statements made by the defendant. The defendant may not call other witnesses to testify to
exculpatory statements made by the defendant nor to incriminating statements made by the victim.