Hearsay and circumstances of its admissibility - Prior statements by witness

Learning Outcomes

After reading this article, you will be able to identify when a prior statement by a witness is admissible under the hearsay rules, distinguish between impeachment and substantive uses of such statements, and apply the requirements for admitting prior inconsistent, consistent, and identification statements in MBE-style questions.

MBE Syllabus

For MBE, you are required to understand the rules governing hearsay and the circumstances under which prior statements by a witness may be admitted. This includes:

  • Recognizing the definition of hearsay and its general inadmissibility.
  • Identifying the three main types of prior witness statements that are not hearsay under the Federal Rules.
  • Applying the requirements for admitting prior inconsistent statements, prior consistent statements, and prior identifications.
  • Distinguishing between impeachment and substantive evidence.
  • Understanding the foundational requirements for each type of prior statement.

Test Your Knowledge

Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.

  1. Which of the following prior statements by a witness is admissible as substantive evidence under the Federal Rules of Evidence?
    1. A prior inconsistent statement made in a police interview.
    2. A prior consistent statement made to a friend before any motive to fabricate arose.
    3. A prior identification made after perceiving the person, testified to by the witness at trial.
    4. All of the above, if the witness testifies and is subject to cross-examination.
  2. A witness testifies at trial and is cross-examined. The opposing party offers a prior inconsistent statement the witness made under oath at a deposition. For what purpose is this statement admissible?
    1. Impeachment only.
    2. Substantive evidence only.
    3. Both impeachment and substantive evidence.
    4. Neither, it is inadmissible hearsay.
  3. Which foundational requirement must be met for a prior identification statement to be admissible as nonhearsay?
    1. The declarant must be unavailable.
    2. The declarant must testify at trial and be subject to cross-examination.
    3. The identification must have been made under oath.
    4. The identification must have been made before any motive to fabricate arose.

Introduction

Hearsay is generally inadmissible unless an exception or exclusion applies. However, the Federal Rules of Evidence treat certain prior statements by a witness as nonhearsay, allowing them to be admitted for their truth if specific requirements are met. Understanding these circumstances is essential for the MBE, as questions often test your ability to distinguish between impeachment and substantive uses of prior statements, and to apply the correct foundational requirements.

Key Term: Hearsay
An out-of-court statement offered to prove the truth of the matter asserted in the statement.

Types of Prior Statements by Witness

The Federal Rules recognize three main types of prior statements by a witness that are not hearsay if the declarant testifies at trial and is subject to cross-examination about the statement:

  1. Prior Inconsistent Statements: Admissible as substantive evidence only if made under oath at a prior trial, hearing, or deposition.
  2. Prior Consistent Statements: Admissible as substantive evidence if offered to rebut a charge of recent fabrication or improper motive, and made before the motive arose.
  3. Prior Identifications: Admissible as substantive evidence if the statement is one of identification of a person made after perceiving that person.

Key Term: Prior Inconsistent Statement
A statement made by a witness before trial that is inconsistent with the witness's trial testimony. Admissible as substantive evidence only if made under oath at a prior proceeding.

Key Term: Prior Consistent Statement
A statement made by a witness before trial that is consistent with the witness's trial testimony. Admissible as substantive evidence if offered to rebut a charge of recent fabrication or improper motive, and made before the motive arose.

Key Term: Prior Identification
A statement in which a witness identifies a person after perceiving them, such as a lineup or photo array. Admissible as substantive evidence if the witness testifies and is subject to cross-examination.

Impeachment vs. Substantive Evidence

A prior inconsistent statement may always be used to impeach a witness's credibility. However, it is only admissible for its truth (substantive evidence) if it meets the requirements above. Prior consistent statements and prior identifications, when admitted, are always substantive evidence.

Foundational Requirements

For any of these prior statements to be admitted as nonhearsay:

  • The declarant must testify at trial.
  • The declarant must be subject to cross-examination about the statement.
  • For prior identification, the witness must have made the identification after perceiving the person.

Worked Example 1.1

A witness testifies at trial that she did not see the defendant at the scene. On cross-examination, the prosecutor offers a transcript of the witness's prior sworn statement at a grand jury hearing where she said she saw the defendant at the scene. Is the prior statement admissible for its truth?

Answer: Yes. The prior inconsistent statement was made under oath at a prior proceeding, the witness is testifying and subject to cross-examination, so it is admissible as substantive evidence.

Worked Example 1.2

A robbery victim testifies at trial and is cross-examined. The prosecutor offers evidence that, shortly after the crime, the victim identified the defendant in a police lineup. Is this identification admissible for its truth?

Answer: Yes. A prior identification made after perceiving the person is admissible as substantive evidence if the declarant testifies and is subject to cross-examination.

Worked Example 1.3

A witness is accused of fabricating her testimony due to a recent financial incentive. The proponent offers a prior consistent statement made by the witness to police before the incentive arose. Is this statement admissible for its truth?

Answer: Yes. A prior consistent statement made before any motive to fabricate arose is admissible as substantive evidence to rebut a charge of recent fabrication.

Exam Warning

Statements that do not meet the specific requirements (e.g., a prior inconsistent statement not made under oath at a prior proceeding) are admissible only for impeachment, not for their truth.

Revision Tip

Always check whether the declarant is testifying and subject to cross-examination. Without this, prior statements cannot be admitted as nonhearsay.

Key Point Checklist

This article has covered the following key knowledge points:

  • Hearsay is generally inadmissible unless an exception or exclusion applies.
  • Prior inconsistent statements are substantive evidence only if made under oath at a prior proceeding.
  • Prior consistent statements are admissible substantively to rebut charges of fabrication if made before the motive arose.
  • Prior identifications are admissible as substantive evidence if the witness testifies and is subject to cross-examination.
  • All three types require the declarant to testify and be subject to cross-examination.
  • Statements not meeting these requirements may be used for impeachment only.

Key Terms and Concepts

  • Hearsay
  • Prior Inconsistent Statement
  • Prior Consistent Statement
  • Prior Identification
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