Alaska R. Evid. 801 commentary

(a) Statement. The definition of “statement” assumes

importance because the term is used in the definition of

hearsay in subdivision (c). The effect of the definition of

“statement” is to exclude from the operation of the hearsay rule

all evidence of conduct, verbal or nonverbal, not intended as an

assertion. The key to the definition is that nothing is an assertion unless intended to be one. This follows present Alaska

law. See Clary v. Fifth Ave. Chrysler Center, Inc., 454 P.2d

245, 250-51 (Alaska 1969).

It can scarcely be doubted that an assertion made in words is

intended by the declarant to be an assertion. Hence verbal

assertions readily fall into the category of “statement.”

Whether nonverbal conduct should be regarded as a statement

for purposes of defining hearsay requires further consideration.

Some nonverbal conduct, such as the act of pointing to identify

a suspect in a lineup, is clearly the equivalent of words,

assertive in nature, and to be regarded as a statement. Other

nonverbal conduct, however, may be offered as evidence that

the person acted as he did because of his belief in the existence

of the condition sought to be proved, from which belief the

existence of the condition may be inferred. This sequence is,

arguably, in effect an assertion of the existence of the condition

and hence properly includable within the hearsay concept. See

Morgan, Hearsay Dangers and the Application of the Hearsay

Concept, 62 Harv. L. Rev. 177, 214, 217 (1948), and the

elaboration in Finman, Implied Assertions as Hearsay: Some

Criticisms of the Uniform Rules of Evidence, 14 Stan. L. Rev.

682 (1962). Arguments found in these sources were rejected,

however, in Clary, supra. Admittedly evidence of this

character is untested with respect to the perception, memory,

and narration (or their equivalents) of the actor. See generally

Tribe, Triangulating Hearsay, 87 Harv. L. Rev. 957 (1975). But

the rule adopts the view that these dangers are minimal in the

absence of an intent to assert and do not justify the loss of the

evidence on hearsay grounds. No class of evidence is free of

the possibility of fabrication, but the likelihood is less with

nonverbal than with assertive verbal conduct. The situations

giving rise to the nonverbal conduct are such as virtually to

eliminate questions of sincerity. Motivation, the nature of the

conduct, and the presence or absence of reliance will bear

heavily upon the weight to be given the evidence. Falknor, The

“Hear-Say” Rule as a “See-Do” Rule: Evidence of Conduct, 33

Rocky Mt. L. Rev. 133 (1961). Similar considerations govern

nonassertive verbal conduct and verbal conduct which is

assertive but offered as a basis for inferring something other

than the matter asserted, also excluded from the definition of

hearsay by the language of subdivision (c).

When evidence of conduct is offered on the theory that it is

not a statement, and hence not hearsay, a preliminary

determination will be required to determine whether an

assertion is intended. The rule is so worded as to place the

burden upon the party claiming that the intention existed;

ambiguous and doubtful cases will be resolved against him and

in favor of admissibility. The determination involves no greater

difficulty than many other preliminary questions of fact.

Maguire, The Hearsay System: Around and Through the

Thicket, 14 Vand. L. Rev. 741, 765-67 (1961).

For similar approaches, see Uniform Rule 62(1); California

Evidence Code §§ 225, 1200; Kansas Code of Civil Procedure

§ 60-459 (a); New Jersey Evidence Rule 62 (1).

(b) Declarant.

The definition of “declarant”

is

straightforward and requires no elaboration.

(c) Hearsay. The definition follows along familiar lines in

including only statements offered to prove the truth of the

matter asserted. McCormick (2d ed.) § 225; 5 Wigmore

§ 1361, 6 Wigmore § 1766. If the significance of an offered

statement lies solely in the fact that it was made, no issue is

raised as to the truth of anything asserted, and the statement is

not hearsay. Cf., e.g., Clary v. Fifth Ave. Chrysler Center, Inc.,

454 P.2d 244, 250-51 (Alaska 1969); P.H. v. State, 504 P.2d

837, 842-43 (Alaska 1972). Although neither case turned on an

interpretation of an offer of a statement “to prove the truth of

the matter asserted”—the first case holding that non-assertive

conduct was not hearsay and the second holding that a rule of

testimonial completeness may override the hearsay rule—

arguably both cases involve evidence not offered for its truth.

The effect of this subdivision is to exclude from hearsay the

entire category of “verbal acts” and “verbal parts of an act,” in

which the statement itself affects the legal rights of the parties

or is a circumstance bearing on conduct affecting their rights.

The definition of hearsay must, of course, be read with

reference to the definition of statement set forth in subdivision

(a).

Testimony given by a witness in the court of court

proceedings is excluded since there is compliance with all the

ideal conditions for testifying.

(d) Statements Which are not Hearsay. Several types of

statements which would otherwise literally fall within the

definition are expressly excluded from it:

(1) Prior Statement by Witness. Considerable controversy

has attended the question whether a prior out-of-court

statement by a person now available for cross-examination

concerning it, under oath and in the presence of the trier of

fact, should be classed as hearsay. If the witness admits on the

stand that he made the statement and that it was true, he adopts

the statement and there is no hearsay problem. The hearsay

problem arises when the witness on the stand denies having

made the statement or admits having made it but denies its

truth. The traditional argument in favor of treating these latter

statements as hearsay is based upon the ground that the conditions of oath, cross-examination, and demeanor observation did not prevail at the time the statement was made

and cannot adequately be supplied by the later examination.

The logic of the situation is subject to attack. So far as

concerns the oath, its mere presence has never been regarded

as sufficient to remove a statement “from the hearsay category,

and it receives much less emphasis than cross-examination as a

truth-compelling device.” While strong expressions are found

to the effect that no conviction can be had or important right

taken away on the basis of statements not made under fear of

prosecution for perjury, Bridges v. Wixon, 326 U.S. 135, 89

L.Ed. 2103 (1945), the fact is that, of the many common law

exceptions to the hearsay rule, only that for reported testimony

has required the statement to have been made under oath.

Some have argued that no one has satisfactorily explained

why cross-examination cannot be conducted subsequently with

success, and that the decisions contending most vigorously for

its inadequacy in fact demonstrate quite thorough exploration

of the weaknesses and doubts attending the earlier statement.

State v. Saporen, 285 N.W. 898 (Minn. 1939); Ruhala v. Roby,

150 N.W.2d 146 (Mich. 1967); People v. Johnson, 441 P.2d

111 (Cal. 1968). In respect to demeanor, Judge Learned Hand

observed in Di Carlo v. United States, 6 F.2d 364 (2d Cir.

1925), when the jury decides that the truth is not what the

witness says now, but what he said before, they are still

deciding from what they see and hear in court. The bulk of the

case law nevertheless has been against allowing prior

statements of witnesses to be used generally as substantive

evidence. Most of the writers and Uniform Rule 63(1) have

taken the opposite position.

(A) The Advisory Committee on the Federal Rules chose to

treat prior inconsistent statements as substantive evidence. In

doing so it adopted the position of California in section 1235

of its Evidence Code, which is supported by the following

remarks of the California Law Revision Commission:

Section 1235 admits inconsistent statements of witnesses because the dangers against which the hearsay rule is

designed to protect are largely non-existent. The declarant is

in court and may be examined and cross-examined in regard

to his statements and their subject matter. In many cases, the

inconsistent statement is more likely to be true than the

testimony of the witness at the trial because it was made

nearer in time to the matter to which it relates and is less

likely to be influenced by the controversy that gave rise to

the litigation. The trier of fact has the declarant before it and

can observe his demeanor and the nature of his testimony as

he denies or tries to explain away the inconsistency. Hence,

it is in as good a position to determine the truth or falsity of

the prior statement as it is to determine the truth or falsity of

the inconsistent testimony given in court. Moreover, Section

1235 will provide a party with desirable protection against

the “turncoat” witness who changes his story on the stand

and deprives the party calling him of evidence essential to

his case.

The Congress was concerned about the broadened use of

inconsistent statements. The House of Representatives

attempted to limit inconsistent statements admissible for

substantive use to those made under oath and subject to

cross-examination, but the Senate took the position that the

requirement of a prior opportunity for cross-examination was

too great a restriction on the use of probative and trustworthy

evidence. The compromise in the Federal Rules was to admit

prior statements made “under oath subject to the penalty of

perjury at a trial, hearing, or other proceeding, or in a

deposition.”

Existing Alaska law is consistent with the California

approach. See Beavers v. State, 492 P.2d 88, 94 (Alaska 1971);

Eubanks v. State, 516 P.2d 726, 729 n.6 (Alaska 1973); Gray v.

State, 525 P.2d 524, 526 n.6 (Alaska 1974). See also Hobbs v.

State, 359 P.2d 956 (Alaska 1961); Johnston v. State, 489 P.2d

134 (Alaska 1971). Subdivision (d) (1) continues in effect

existing Alaska law. Subsection (d) (1) does not alter the

holding of Beavers that permits admission of prior inconsistent

statements in the discretion of the trial judge as substantive

evidence regardless of whether the prior statement was under

oath and/or subject to cross-examination. Except in special

cases, counsel should lay the foundation for an inconsistent

statement while the witness who made the statement is

testifying, as under Rule 613.

(B) Prior consistent statements traditionally have been

admissible to rebut charges of recent fabrication or improper

influence or motives but not as substantive evidence. See Rule

607(b). Under the rule they are substantive evidence. The prior

statement is consistent with the testimony given on the stand,

and, if the opposite party wishes to open the door for its

admission in evidence, no sound reason is apparent why it

should not be received generally.

(C) Some of the same dangers discussed in connection

with prior inconsistent statements surround the use of

identification evidence. But the rule provides that only the

identification itself, not statements made about the crime, is to

be admitted. Thus, this section is more limited than that on

inconsistent statements, which covers all statements regardless

of their length, detail and completeness. Constitutional

limitations protect against undue suggestiveness. See, e.g., Neil

v. Biggers, 409 U.S. 188, 34 L.Ed.2d 401 (1972); Simmons v.

United States, 390 U.S. 377, 19 L.Ed.2d 1247 (1960); Stovall v.

Denno, 388 U.S. 293, 18 L.Ed.2d 1199 (1967); United States v.

Wade, 388 U.S. 218, 18 L.Ed.2d 1149 (1967); and Gilbert v.

California, 388 U.S. 263, 18 L.Ed.2d 1178 (1967), restricted

by Kirby v. Illinois, 406 U.S. 682, 32 L.Ed.2d 411 (1972). “An early, out-of-court identification provides fairness to defendants by ensuring accuracy of the identification. At the

same time, it aids the government by making sure that delays

in the criminal justice system do not lead to cases falling

through because the witness can no longer recall the identity of

the person he saw commit the crime.” S.R. No. 94-199, 94th

Cong., 1st Sess. (1975). Accord, Buchanan v. State, 554 P.2d

1153, 1158 (Alaska 1976). For recent cases discussing eyewit-

ness identifications, see Buchanan v. State, 561 P.2d 1197

(Alaska 1977); Benefield v. State, 559 P.2d 91 (Alaska 1977);

Blue v. State, 558 P.2d 636 (Alaska 1977); Noble v. State, 552

P.2d 142 (Alaska 1976).

(2) Admissions. Federal Rule 801 provides that admissions

by a party-opponent are excluded from the category of hearsay

on the theory that their admissibility in evidence is the result of

the adversary system rather than satisfaction of the conditions

of the hearsay rule. Strahorn, A Reconsideration of the Hearsay

Rule and Admissions, 85 U. Pa. L. Rev. 484, 564 (1973);

Morgan, Basic Problems of Evidence 265 (1962); 4 Wigmore

§ 1048. No guarantee of trustworthiness is required in the case

of an admission. The freedom which admissions have enjoyed

from technical demands of searching for an assurance of

trustworthiness in some against-interest circumstance, and

from the restrictive influences of the opinion rule and the rule

requiring first-hand knowledge, when taken with the

apparently prevalent satisfaction with the results, calls for

generous treatment of this avenue to admissibility.

While the classification of admissions as non-hearsay makes

some sense if confined to personal admissions, there is no

good reason to treat all the admissions covered by subsection

(C), (D), and (E) as non-hearsay. In fact, if these rules were

written on a clean slate without reference to the Federal Rules,

admissions would be treated as exceptions to the hearsay rule

and placed under Rule 803. But for the convenience of the bar

the Federal Rule is followed. The end result is the same, and

the slight confusion engendered by the treatment of admissions

as non-hearsay is a small price to pay for uniformity.

The rule specifies five categories of statements for which

the responsibility of a party is considered sufficient to justify

reception in evidence against him.

(A) A party’s own statement is the classic example of an

admission. See Jordan v. State, 481 P.2d 383, 386 (Alaska

1971). If he has a representative capacity and the statement is

offered against him in that capacity, no inquiry whether he was

acting in the representative capacity in making the statement is

required; the statement need only be relevant to representative

affairs. To the same effect is California Evidence Code 1220.

Cf., Uniform Rule 63(7), requiring a statement to be made in a

representative capacity to be admissible against a party in a

representative capacity.

(B) Under established principles an admission may be

made by adopting or acquiescing in the statement of another.

While knowledge of contents would ordinarily be essential,

this is not inevitably so: “X is a reliable person and knows

what he is talking about.” See, McCormick (2d ed.) § 246, at

527, n.15. Adoption or acquiescence may be manifested in any

appropriate manner. When silence is relied upon, the theory is

that the person would, under the circumstances, protest the

statement made in his presence, if untrue. See, e.g., Beavers v.

State, 492 P.2d 88, 96 (Alaska 1971). The decision in each case

calls for an evaluation in terms of probable human behavior. In

civil cases, the results have generally been satisfactory. In

criminal cases, however, troublesome questions have been

raised by decisions holding that failure to deny is an admission: the inference is a fairly weak one, to begin with; silence

may be motivated by advice of counsel or realization that

“anything you say may be used against you”; unusual

opportunity is afforded to manufacture evidence; and

encroachment upon the privilege against self-incrimination

seems inescapably to be involved. However, recent decisions

of the Supreme Court relating to custodial interrogation and

the right to counsel appear to resolve these difficulties. See,

e.g., Doyle v. Ohio, 426 U.S. 610, 49 L.Ed.2d 91 (1976).

Hence the rule contains no special provisions concerning

failure to deny in criminal cases.

(C) No authority is required for the general proposition that

a statement authorized by a party to be made should have the

status of and admission by the party. However, the question

arises whether only statements to third persons should be so

regarded, to the exclusion of statements by the agent to the

principal. This is the new Maine Rule. The Alaska rule is

phrased broadly so as to encompass both. While it may be

argued that the agent authorized to make statements to his

principal does not speak for him, Morgan, Basic Problems of

Evidence 273 (1962), communication to an outsider has not

generally been thought to be an essential characteristic of an

admission. Thus, a party’s books or records are usable against

him, without regard to any intent to disclose to third persons. 5

Wigmore § 1557. See also McCormick (2d ed.) § 78, at

159161. In accord is New Jersey Evidence Rule 63(8)(a). Cf.,

Uniform Rule 63(8) (a) and California Evidence Code § 1222

which limit status as an admission in this regard to statements

authorized by the party to be made “for” him, which is perhaps

an ambiguous limitation to statements to third persons.

Falknor, Vicarious Admissions and the Uniform Rules, 14

Vand. L. Rev. 855, 860-61 (1961).

(D) The tradition has been to test the admissibility of

statements by agents, as admissions, by applying the usual test

of agency. Was the admission made by the agent acting in the

scope of his employment? Since few principals employ agents

for the purpose of making damaging statements, the usual

result was exclusion of the statement. Dissatisfaction with this

loss of valuable and helpful evidence has been increasing. A

substantial trend favors admitting statements related to a matter

within the scope of the agency or employment. Grayson v.

Williams, 256 F.2d 61 (10th Cir. 1958); Koninklijke Luchtvaart

Maatschappij N.V. KLM Royal Dutch Airlines v. Tuller, 292

F.2d 775, 784 (D.C. Cir. 1961); Martin v. Savage Truck Lines,

Inc., 121 F.Supp. 417 (D.D.C. 1954), and numerous state court

decisions collected in 4 Wigmore, 1964 Supp., at 66-73, with

comments by the editor that the statements should have been

excluded as not within the scope of agency. For the traditional

view, see, Northern Oil Co. v. Socony Mobil Oil Co., 347 F.2d

81, 85 (2d Cir. 1965) and cases cited therein. Similar

provisions are found in Uniform Rule 63(9) (a), Kansas Code

of Civil Procedure § 60-460(i) (1), and New Jersey Evidence

Rule 63(9) (a). The proposed Alaska rule was cited favorably

in P.R.& S. Inc. v. Pellack, 583 P.2d 195 (Alaska 1978).

(E) The limitation upon the admissibility of statements of

co-conspirators to those made “during the course and in

furtherance of the conspiracy” is in the accepted pattern. While

the broadened view of agency taken in item (D) might suggest

wider admissibility of statements of co-conspirators, the

agency theory of conspiracy is at best a fiction and ought not to

serve as a basis for admissibility beyond that already

established. See Levie, Hearsay and Conspiracy, 52 Mich. L.

Rev. 1159 (1954); Comment, 25 U. Chi. L. Rev. 530 (1958).

The rule is consistent with the position of the United States

Supreme Court in denying admissibility to statements made

after the objectives of the conspiracy have either failed or been

achieved. Krulewitch v. United States, 336 U.S. 440, 93 L.Ed.

790 (1949); Wong Sun v. United States, 371 U.S. 471, 9 L.Ed.

2d 441 (1963). For similarly limited provisions see California

Evidence Code § 1223 and New Jersey Rule 63(9) (b). Cf.,

Uniform Rule 63(9) (b). While the rule refers to a

co-conspirator, it should be clear that the rule is meant to carry

forward the universally accepted doctrine that a joint venturer

is considered as a co-conspirator for the purposes of this rule

even though no conspiracy has been charged. See Amidon v.

State, 565 P.2d 1248 (Alaska 1977). Traditionally the hearsay

exception requires independent evidence of conspiracy. This

tradition is implicitly carried forward under the rule. See K.

Redden & S. Saltzburg, Federal Rules of Evidence Manual

461-68 (2d ed.1977).