(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).
(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 eyewitness 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 639 b. Cf., Uniform Rule 639 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.