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.

   Pa.R.E. 801 is identical to subsections (a), (b) and (c) of F.R.E. 801. It is consistent with Pennsylvania law. F.R.E. 801(d) is not adopted. The subjects of F.R.E. 801(d), admissions and prior statements of witnesses, are covered in Pa.R.E. 803(25), Pa.R.E. 803.1., and Pa.R.E. 613(c).

   a. Statement.

   The definition of ‘‘statement’’ is consistent with Pennsylvania law. See, e.g., Rafter v. Raymark Indus., Inc., 429 Pa. Super. 360, 632 A.2d 897 (1993) (oral or written assertion); Commonwealth v. Rush, 529 Pa. 498, 605 A.2d 792 (1992) (non-verbal conduct intended as an assertion). Communications that are not assertions are not hearsay. These would include questions, greetings, expressions of gratitude, exclamations, offers, instructions, warnings, etc.

   b. Declarant.

   Subsection (b) is consistent with Pennsylvania law. For hearsay purposes, the ‘‘declarant’’ is the person who makes an out-of-court statement, not the person who repeats it on the witness stand.

   c. Definition of Hearsay.

   Subsection (c), which defines hearsay, is consistent with Pennsylvania law, although the Pennsylvania cases have usually used the phrase ‘‘out-of-court statement,’’ in place of the phrase ‘‘other than one made by the declarant while testifying at the trial or hearing.’’ See Heddings v. Steele, 514 Pa. 569, 526 A.2d 349 (1987). The adoption of the language of the Federal Rule is not intended to change existing law.

   A statement, other than one made by the declarant while testifying at the trial or hearing (an out-of-court statement), is hearsay only if it is offered to prove the truth of the matter asserted. There are many situations in which evidence of an out-of-court statement is offered for a purpose other than to prove the truth of the matter asserted.

   Sometimes an out-of-court statement has direct legal significance, whether or not it is true. For example, one or more out-of-court statements may constitute an offer, an acceptance, a promise, a guarantee, a notice, a representation, a misrepresentation, defamation, perjury, compliance with a contractual or statutory obligation, etc.

   More often, an out-of-court statement, whether or not it is true, constitutes circumstantial evidence from which the trier of fact may infer, alone or in combination with other evidence, the existence or non-existence of a fact in issue. For example, a declarant’s out-of-court statement may imply his or her particular state of mind, or it may imply that a particular state of mind ensued in the recipient. Evidence of an out-of-court statement, particularly if it is proven untrue by other evidence, may imply the existence of a conspiracy, or fraud. Evidence of an out-of-court statement made by a witness, if inconsistent with the witness’ testimony, may imply that the witness is an unreliable historian. Conversely, evidence of an out-of-court statement made by a witness that is consistent with the witness’ testimony may imply the opposite. See Pa.R.E. 613.

   Official Note

   Adopted May 8, 1998, effective October 1, 1998; Comment revised March 29, 2001, effective April 1, 2001.

   Committee Explanatory Reports:

   Final Report explaining the March 29, 2001 revision of the Comment published with the Court’s Order at 31 Pa.B. 1995 (April 14, 2001).

   The provisions of this Rule 801 amended March 29, 2001, effective April 1, 2001, 31 Pa.B. 1993. Immediately preceding text appears at serial pages (245782) and (265703).