RULE 801
DEFINITIONS

The following definitions apply under this article:

(a) Statement. A "statement" is (1) an oral or written assertion or (2) nonverbal conduct of a person, if it is intended by the person as an assertion.

(b) Declarant. A "declarant" is a person who makes a statement.

(c) Hearsay. "Hearsay" is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.

(d) Statements Which Are Not Hearsay. A statement is not hearsay if -

(1) Prior Statement by Witness. The declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is (A) inconsistent with the declarant's testimony, or (B) consistent with the declarant's testimony and is offered to rebut an express or implied charge against the declarant of recent fabrication or improper influence or motive; provided, however, the statement must have been made before the alleged fabrication, or before the alleged improper influence or motive arose, or (C) one of identification of a person made after perceiving the person, or (D) consistent with the declarant's testimony in a criminal sexual conduct case or attempted criminal sexual conduct case where the declarant is the alleged victim and the statement is limited to the time and place of the incident; or

(2) Admission by Party-Opponent. The statement is offered against a party and is (A) the party's own statement in either an individual or a representative capacity, or (B) a statement of which the party has manifested an adoption or belief in its truth, or (C) a statement by a person authorized by the party to make a statement concerning the subject, or (D) a statement by the party's agent or servant concerning a matter within the scope of the agency or employment, made during the existence of the relationship, or (E) a statement by a coconspirator of a party during the course and in furtherance of the conspiracy.

Note:

With the exception of subsection (d)(1), this rule is identical to the federal rule.

While case law has not defined the words "statement" and "declarant," the definitions in subsections (a) and (b) are consistent with how those words are used in numerous cases discussing the hearsay rule. Prior law recognized that wordless conduct intended as a communication may be hearsay. State v. Williams, 285 S.C. 544, 331 S.E.2d 354 (Ct. App. 1985).

Subsection (c) is consistent with South Carolina law. Player v. Thompson, 259 S.C. 600, 193 S.E.2d 531 (1972).

Subsection (d)(1) changes the law in South Carolina. Previously, where the declarant testified at trial and was subject to cross-examination, the general rule was that prior statements made by the declarant/witness were admissible regardless of the hearsay nature of the statements. See State v. Garner, 304 S.C. 220, 403 S.E.2d 631 (1991); State v. Caldwell, 283 S.C. 350, 322 S.E.2d 662 (1984); State v. Plyler, 275 S.C. 291, 270 S.E.2d 126 (1980); but see State v. Munn, 292 S.C. 497, 357 S.E.2d 461 (1987) (all out-of-court statements made by alleged victim not necessarily admissible simply because victim testifies at trial). Subsection (d)(1), however, treats prior statements of a witness as not being hearsay in only four instances. Subsection (A) omits the requirement of the federal rule that the declarant's prior inconsistent statement be given under oath. This modification renders the rule consistent with South Carolina law. See State v. Copeland, 278 S.C. 572, 300 S.E.2d 63 (1982), cert. denied, 460 U.S. 1103, 103 S.Ct. 1802, 76 L.Ed.2d 367 (1983). It should be noted that the foundation requirements of Rule 613(b) must be met before extrinsic evidence of a prior inconsistent statement is admissible. Subsection (B) is the federal rule modified by adding the phrase "provided, however, the statement must have been made before the alleged fabrication, or before the alleged improper influence or motive arose." This modification, which is taken from the United States Supreme Court's interpretation of Rule 801(d)(1)(B) of the Federal Rules of Evidence in Tome v. United States, 513 U.S. 150, 130 L.Ed.2d 574, 115 S.Ct. 696 (1995), is somewhat similar to the limitation previously contained in the case law that a prior consistent statement is admissible only where it was made prior to the declarant's relation to the cause. Jolly v. State, 314 S.C. 17, 443 S.E.2d 566 (1994); Burns v. Clayton, 237 S.C. 316, 117 S.E.2d 300 (1960). Subsection (C) is identical to the federal rule and consistent with South Carolina law that evidence regarding pre-trial identifications, which are not the product of unconstitutional procedures, are admissible. State v. Stewart, 275 S.C. 447, 272 S.E.2d 628 (1980); State v. Gambrell, 274 S.C. 587, 266 S.E.2d 78 (1980). Subsection (D), which is not contained in the federal rule, was added to make admissible in criminal sexual conduct cases evidence that the victim complained of the sexual assault, limited to the time and place of the assault. Subsection (D) is consistent with South Carolina law. Jolly v. State, 314 S.C. 17, 443 S.E.2d 566 (1994).

Subsection (d)(2)(A) is consistent with South Carolina law. Bunch v. Cobb, 273 S.C. 445, 257 S.E.2d 225 (1979) (admission against interest of a party opponent is admissible); State v. Good, 308 S.C. 313, 417 S.E.2d 643 (Ct. App. 1992) (an out of court admission of a criminal defendant is admissible). Subsection (B) is consistent with South Carolina law. State v. Sharpe, 239 S.C. 258, 122 S.E.2d 622 (1962) (testimony that defendant was silent in response to an accusation by a third party admissible), rev'd on other grounds, State v. Torrence, 305 S.C. 45, 406 S.E.2d 315 (1991); Coleman & Lipscomb v. Frazier, 38 S.C.L. (4 Rich.) 146 (1850) (where party received a statement and acted on it as true, statement admissible). Subsection (C) is consistent with South Carolina law. Harper v. American Ry. Express Co., 139 S.C. 545, 138 S.E. 354 (1927) (statements by a person authorized to speak are admissible). Subsection (D) is consistent with South Carolina law that statements made by an agent in the scope of his authority were admissible. Hunter v. Hyder, 236 S.C. 378, 114 S.E.2d 493 (1960). Subsection (E) is consistent with South Carolina law. State v. Sullivan, 277 S.C. 35, 282 S.E.2d 838 (1981); Yeager v. Murphy, 291 S.C. 485, 354 S.E.2d 393 (Ct. App. 1987) (statements made by co-conspirators in furtherance of the conspiracy are admissible).