Del. R. Evid. 801

As amended through December 15, 2023

Rule 801 - Definitions That Apply to This Article; Exclusions from Hearsay

(a)Statement. "Statement" means a person's oral assertion, written assertion or nonverbal conduct, if the person intended it as an assertion.

(b)Declarant. "Declarant" means the person who made the statement.

(c)Hearsay. "Hearsay" means a statement that:

(1) the declarant does not make while testifying at the current trial or hearing; and

(2) a party offers in evidence to prove the truth of the matter asserted in the statement.

(d)Statements That Are Not Hearsay. A statement that meets the following conditions is not hearsay:

(1)A Declarant-Witness's Prior Statement. The declarant testifies and is subject to cross-examination about a prior statement, and the statement:

(A) is inconsistent with the declarant's testimony, or

(B) in civil cases, is consistent with the declarant's testimony and is offered:

(i) to rebut an express or implied charge that the declarant recently fabricated it or acted from a recent improper influence or motive in so testifying; or

(ii) to rehabilitate the declarant's credibility as a witness when attacked on another ground; or

(C) in criminal cases, is consistent with declarant's testimony and is permitted under 11 Del. C. §3507; or

(D) identifies a person.

(2)An Opposing Party's Statement. The statement is offered against an opposing party and:

(A) was made by the party in an individual or representative capacity;

(B) is one the party manifested that it adopted or believed to be true;

(C) was made by a person whom the party authorized to make a statement on the subject;

(D) was made by the party's agent or employee on a matter within the scope of that relationship and while it existed; or

(E) was made by the party's coconspirator during and in furtherance of the conspiracy; provided that the conspiracy has first been established by the preponderance of the evidence to the satisfaction of the court.

Del. R. Evid. 801

Amended November 28, 2017, effective 1/1/2018; amended May 7, 2018, effective 5/7/2018.

Comment

D.R.E. 801(a), (b) and (c) track F.R.E. 801(a), (b) and (c).

D.R.E. 801(d) tracks F.R.E. except for Rule 801(d)(1)(A) and (C) and 801(d)(2)(E).

D.RE. 801(d)(1)(A) and (C) track F.RE. 801(d)(1) except the words "and was given under oath subject to the penalty of perjury at a trial, hearing or other proceeding or in a deposition" are deleted as they appear at the end of F.R.E. 801(d)(1)(A). This wording is consistent with the original draft of F.R.E. 801(d)(1) before amendment by Congress. U.R.E. 801(d)(1) is consistent with the adopted language for civil (but not criminal) cases. The words "perceived earlier" as they appear at the end of F.R.E. 801(d)(1)(C) were deleted as being unnecessary. The 2014 amendment to D.R.E. 801(d)(1) reflects that the Delaware Supreme Court has detached 11 Del. C. §3507 from its interpretation of D.RE. 801(d). See Richardson v. State, 43 A.3d 906 (Del. 2012).

D.R.E. 801(d)(2)(E) tracks F.R.E. 801(d)(2)(E) except for the proviso added at the end of D.R.E. 801(d)(2)(E). The additional wording was deemed necessary to protect the rights of an alleged co-conspirator.

In 2017, D.R.E. 801(d)(1)(B) was amended to incorporate a change to F.R.E. 801(d)(1)(B) that permitted the admission of a testifying witness' prior consistent statements as substantive evidence. This amendment is limited to civil cases.

D.R.E. 801(d)(2)(E) must be applied in a manner consistent with Bruton v. United States, 391 U.S. 123 (1968).

This rule modifies D.R.E. 104(a) and (b) as to the establishment of a conspiracy.

Evidence which would otherwise be hearsay, if offered for a limited purpose or if part of the res gestae, may be received in evidence. See D.R.E. 104 and 803 and Kreisher v. State, Del. Supr., 303 A.2d 651 (1973).

For prior Delaware cases illustrating the law covered by this rule, see Heldmyer v. Cleaver, Del. Super., 104 A. 635 (1918); Cooper v. Baker, Del. Super., 139 A. 254 (1927); Husband H. v. Wife H., Del. Supr., 358 A.2d 724 (1976); State v. Boleslowski, Del. Oyer & Term., 178 A. 431 (1934); State v. Hamilton, Del. Gen. Sess., 67 A. 836 (1907); Perry v. Grier, Del. Super., 40 A. 1130 (1894); Cerchio v. Mullins, Del. Super., 138 A. 277 (1922); Klair v. Philadelphia B. & W.R.R., Del. Super., 78 A. 1085 (1920); Hollis v. Vandergrift, Del. Super., 10 Del. 521 (1878); Geylin v. DeVilleroi, Del. Super., 7 Del. 311 (1859); State v. Frantz, Del. Gen. Sess., 121 A. 652 (1922); Duonnolo v. State, Del. Supr., 397 A.2d 126 (1978).

The parol evidence rule is not set forth in the rules of evidence because it is a rule of substantive law, not a rule of evidence. See Brandywine Shoppe, Inc. v. State Farm Fire & Cas. Co., Del. Super., 307 A.2d 806 (1973).

D.R.E. 801 was also amended in 2017 in response to the 2011 restyling of the Federal Rules of Evidence. Those amendments are intended to be stylistic only. There is no intent to change any result in ruling on evidence admissibility.