Hearsay and circumstances of its admissibility - Prior state...

Learning Outcomes

This article explains hearsay rules governing prior statements by a witness, including:

• How Rule 801(d)(1) transforms certain prior statements into nonhearsay and how to spot that framing quickly in MBE fact patterns.
• How to distinguish impeachment-only use from substantive use of a prior statement, and how limiting instructions affect the correct answer choice.
• The precise elements, timing requirements, and common traps for prior inconsistent, prior consistent, and prior identification statements, with emphasis on oath, motive-to-fabricate, and “after perceiving” language.
• How to analyze foundations under Rules 613 and 801(d)(1), including when extrinsic evidence is permissible and what it means for a witness to be “subject to cross-examination.”
• How Rules 801(d)(1), 801(d)(2), 803–804, and 806 interact when the declarant is also a party, when the declarant does not testify, or when hearsay within hearsay appears in the fact pattern.
• How Confrontation Clause limits intersect with prior testimony and prior identification questions in criminal cases, and how to separate constitutional from pure evidentiary issues on the exam.
• Strategies for reading NCBE-style questions involving prior statements, building a quick issue checklist, and eliminating distractor answers that misstate oath requirements, timing, or the scope of nonhearsay use.

MBE Syllabus

For the MBE, you are required to understand hearsay and prior statements by testifying witnesses, with a focus on the following syllabus points:

• The definition of hearsay and the general rule of inadmissibility
• The distinction between nonhearsay (FRE 801(d)) and hearsay exceptions (FRE 803–804)
• The three categories of prior witness statements that are defined as “not hearsay” under FRE 801(d)(1)
• Requirements for admitting prior inconsistent statements as substantive evidence
• Requirements for admitting prior consistent statements and their limited substantive roles
• Requirements for admitting prior identifications and who may testify to them
• The difference between impeachment and substantive evidence and the foundations required under FRE 613 and 801(d)(1)
• Limits on use of extrinsic evidence of prior inconsistent statements (collateral-matter doctrine)
• How to impeach non-testifying hearsay declarants under FRE 806
• Confrontation Clause constraints on testimonial hearsay when the declarant is unavailable

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.
4. A defense witness is impeached with a suggestion that she is lying because she recently began dating the defendant. The defense wants to offer a prior consistent statement she made to police months before the relationship began. Under FRE 801(d)(1)(B), when is this prior consistent statement admissible as substantive evidence?
   1. Whenever it is consistent with her trial testimony.
   2. Only if it was made under oath at a prior proceeding.
   3. Only if it was made before the alleged motive to lie arose.
   4. Never; prior consistent statements are only admissible for rehabilitation, not for their truth.

Introduction

Hearsay is generally inadmissible unless an exception or exclusion applies. The Federal Rules, however, carve out an important group of prior statements made by a testifying witness and treat them as not hearsay. When the strict requirements of Rule 801(d)(1) are satisfied, these prior statements are admitted not only to attack or bolster credibility, but also for their truth.

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

Key Term: Statement
A statement is an oral or written assertion, or nonverbal conduct if the person intended the conduct to be an assertion (for example, nodding “yes”).

Key Term: Declarant
The declarant is the person who made the out-of-court statement that is now being offered in evidence.

Under FRE 801, “statement” includes oral assertions, written assertions, and nonverbal conduct intended as an assertion. For a hearsay issue, always ask:

• Is there a statement by a declarant made outside the current trial or hearing?
• Is the statement being offered to prove the truth of what it asserts?

If yes, you have hearsay by definition, and you must find either a hearsay exception or an exclusion such as FRE 801(d), or show that the statement is being used for a nonhearsay purpose.

Key Term: Nonhearsay Purpose
A nonhearsay purpose is a use of an out-of-court statement for something other than proving the truth of what it asserts (for example, to show effect on the listener, to prove notice, or simply to show that the statement was made).

Key Term: Nonhearsay vs. Exception
A nonhearsay exclusion (like 801(d)) means the statement is defined as “not hearsay” at all; a hearsay exception (like 803 or 804) admits a statement that is hearsay but deemed sufficiently reliable.

On the MBE, questions involving prior statements of witnesses frequently hinge on two distinctions:

• Is the prior statement being offered only to impeach (affect credibility), or also as substantive evidence (to prove what it asserts)?
• Does the statement satisfy the precise conditions of FRE 801(d)(1) so that it is treated as nonhearsay, or is it admissible, if at all, only under impeachment rules (FRE 607–613)?

Understanding how prior inconsistent, prior consistent, and prior identification statements operate is important, both conceptually and in reading tricky fact patterns.

Why 801(d)(1) matters on the MBE NCBE questions exploit small technical requirements

• Whether a statement was under oath at a trial, hearing, or deposition (but not merely at a police station).
• Whether a prior consistent statement pre-dates the alleged motive to fabricate.
• Whether the identifying witness testifies and is subject to cross at the current trial.

A statement that just misses 801(d)(1) can still be a powerful impeachment tool, but it cannot be considered substantive proof unless some other hearsay exclusion or exception applies (most commonly a party-opponent admission under Rule 801(d)(2)).

A quick roadmap for prior-statement questions

When you see a prior statement in an MBE fact pattern, move through the following checklist:

• Identify the speaker of the prior statement.

  • Is the speaker a party? If yes, consider FRE 801(d)(2) (opposing party’s statement).
  • Is the speaker a non-party witness or a hearsay declarant?

• Determine whether the speaker testifies at this trial.

  • If the speaker does not testify, none of the 801(d)(1) exclusions apply. You must look to ordinary hearsay exceptions (e.g., excited utterance, present sense impression, prior testimony) or to FRE 806 for impeachment.

• Ask: For what purpose is the prior statement being offered?

  • Only to show inconsistency and attack credibility?
    • Then it is a classic impeachment use under FRE 613 and is not hearsay (because not offered for its truth).
  • To prove the truth of what it asserts?
    • Then you need a hearsay exception or an exclusion such as 801(d)(1).

• If the speaker is testifying and is subject to cross-examination, classify the statement:

  • Prior inconsistent statement (801(d)(1)(A))?
  • Prior consistent statement (801(d)(1)(B))?
  • Prior identification (801(d)(1)(C))?

• Check the extra conditions for that category (oath requirement, timing relative to motive to fabricate, identification after perceiving, etc.).

If the statement fits all the elements of one of the three 801(d)(1) categories, it is nonhearsay and substantive. If it fails any element, ask whether it is still admissible for impeachment only, or for some other nonhearsay purpose.

Exam Tip: Many answer choices say, “Hearsay is inadmissible” as though that ended the analysis. On the MBE you must go further and ask whether a rule like 801(d)(1) removes the statement from hearsay altogether, or whether some other exception or nonhearsay use applies.

The Three Types of Prior Statements by a Witness (FRE 801(d)(1))

Rule 801(d)(1) covers three categories of prior statements. All share the same global prerequisite:

• The declarant must testify at trial, and
• The declarant must be subject to cross-examination about the statement.

If that is satisfied, the following are defined as “not hearsay”:

• Prior inconsistent statements:

  • Admissible as substantive evidence only if made under oath at a prior trial, hearing, or deposition.

• Prior consistent statements:

  • Admissible as substantive evidence when offered:
    • To rebut a charge of recent fabrication or improper motive, and
    • Made before the alleged motive to fabricate arose; or
    • To rehabilitate a witness after certain other attacks on credibility (under the modern version of 801(d)(1)(B)).

• Prior identifications:

  • Admissible as substantive evidence when they are statements identifying a person after perceiving that person.

Key Term: Prior Inconsistent Statement
A prior inconsistent statement is a statement made before trial that conflicts in a meaningful way with the witness’s in-court testimony. Any such statement may be used to impeach; it is substantive evidence only if given under oath at a prior trial, hearing, or deposition.

Key Term: Prior Consistent Statement
A prior consistent statement is a statement made before trial that is consistent with the witness’s in-court testimony. It may be admitted to rehabilitate and as substantive evidence when it fits FRE 801(d)(1)(B).

Key Term: Prior Identification
A prior identification is a statement in which a witness identifies a person after perceiving that person (for example, at a lineup, photo array, or show-up). It is substantive evidence under 801(d)(1)(C) if the declarant testifies and is subject to cross.

Key Term: Hearsay Declarant as Witness
A hearsay declarant as witness is a declarant who takes the stand in the current trial. Rule 801(d)(1) applies only when the declarant appears as a witness and is subject to cross-examination about the prior statement.

The three categories implement the judgment that certain prior statements are especially reliable: sworn and recorded testimony, statements made before any motive to lie, and identifications made when the event is fresh.

Impeachment vs. Substantive Evidence

• Impeachment is using evidence to show that a witness is unreliable or untruthful.

Key Term: Impeachment
Impeachment is the process of attacking a witness’s credibility through prior inconsistent statements, bias, character for untruthfulness, sensory defects, or contradiction.

• Substantive evidence is evidence used to prove a fact in issue.

Key Term: Substantive Evidence
Substantive evidence is evidence admitted to prove the truth of what it asserts, not merely to affect a witness’s credibility.

Under the Federal Rules:

• Any prior inconsistent statement (whether sworn or unsworn) can be used to impeach a witness.
• Only a narrow subset of prior inconsistent statements—those under oath at a prior trial, hearing, or deposition—are also admissible as substantive evidence under FRE 801(d)(1)(A).
• Prior consistent statements and prior identifications, when admitted under 801(d)(1)(B) or (C), are always substantive; they may simultaneously rehabilitate credibility.

Key Term: Extrinsic Evidence
Extrinsic evidence is evidence other than the witness’s current in-court testimony (such as documents, recordings, or another witness) offered to prove a prior statement or other impeaching fact.

Key Term: Collateral Matter
A collateral matter is a fact that is relevant only to impeach a witness (for example, contradicting a trivial detail) and is not otherwise relevant to any issue in the case. Extrinsic evidence is generally not allowed to contradict a witness on purely collateral matters.

On the MBE, you must be very precise about the use of the prior statement. If the call of the question asks whether the statement is admissible “to prove that X happened,” you are in substantive-evidence territory. If the call of the question asks whether it is admissible “to attack the witness’s credibility,” you are in impeachment territory.

Exam Warning: A statement can be admissible for one purpose and inadmissible for another. The correct answer often turns on whether the choice mentions a limiting instruction or restricts the jury to using the statement only for impeachment.

Key Term: Limiting Instruction
A limiting instruction is a direction from the judge telling the jury to consider a piece of evidence only for a specified purpose (for example, to assess credibility, not as proof of the facts asserted).

Foundational Requirements

: Declarant Testifies and Is Subject to Cross For all three 801(d)(1) categories For all three 801(d)(1) categories

• The declarant must testify at the current trial or hearing; and
• The declarant must be subject to cross-examination concerning the prior statement.

Being “subject to cross-examination” does not require that cross-examination be effective or that the witness actually answers every question. The requirement is usually satisfied if:

• The witness takes the stand,
• Is placed under oath, and
• Can be questioned about the prior statement.

Even if the witness claims a lack of memory about the earlier statement or about the events, courts generally treat the witness as subject to cross. The Supreme Court in United States v. Owens upheld admission of a prior identification where the witness could not remember seeing the attacker at all but could be questioned about having made an identification in the past.

However, if the witness refuses to answer all questions (for example, by immediately invoking the Fifth Amendment privilege and refusing to testify), most courts find the “subject to cross-examination” requirement unsatisfied. In that event, 801(d)(1) does not apply.

Key Term: Subject to Cross-Examination
A witness is subject to cross-examination when the witness is on the stand, under oath, and the opposing party has a real opportunity to ask questions about the prior statement, even if the witness claims memory loss or gives unhelpful answers.

Practical consequences:

• If a witness takes the stand, answers a few questions, and then says, “I don’t remember anything else,” the 801(d)(1) requirement is normally met.
• If a witness is called, asserts a privilege immediately, and refuses to answer any questions, most courts treat the witness as not subject to cross. Prior statements by that witness cannot come in under 801(d)(1) (though they might come in under other hearsay rules if the witness is now “unavailable”).

Exam Tip: Ask yourself two separate questions:

• Is the declarant physically present and sworn as a witness at this trial?
• Can the opposing party attempt to question the declarant about the prior statement?
  If either answer is “no,” none of the 801(d)(1) categories will apply, and you must look to ordinary hearsay exceptions or nonhearsay uses.

This requirement is tested often on the MBE, especially with prior identifications: even if a witness cannot recall the details of a lineup at trial, the prior identification can still come in if the witness is on the stand and can be questioned about the earlier event.

Prior Inconsistent Statements

Prior inconsistent statements are the workhorse of impeachment on the MBE. The key is to separate:

• Use to impeach only, governed by FRE 607 and 613, from
• Use as substantive evidence, governed by FRE 801(d)(1)(A).

What counts as “inconsistent”

Inconsistency does not require a direct contradiction word-for-word. Courts treat statements as inconsistent when:

• The witness says “X” at trial and previously said “not X,” or
• The witness previously omitted a key fact that a truthful person would naturally have mentioned, or
• The witness now claims not to remember something that the prior statement indicates the witness once remembered.

A suspicious “I don’t recall” can therefore be treated as inconsistent with a prior detailed account.

Impeachment Use (FRE 607, 613)

Any prior inconsistent statement—sworn or unsworn—may be used to impeach any witness’s credibility.

Key points on impeachment use:

• A party may impeach its own witness (FRE 607). There is no requirement of surprise or hostility.
• The prior statement can be proved by:
  • Asking the witness about it on cross (direct impeachment), and/or
  • Offering extrinsic evidence of the statement (such as a recording, document, or another witness) if FRE 613(b)’s conditions are met.

Under FRE 613(b), extrinsic evidence of a prior inconsistent statement is admissible if:

• The witness is given an opportunity at some point to explain or deny the statement; and
• The opposing party has an opportunity to question the witness about it.

The rule does not require the impeaching party to confront the witness with the statement before introducing extrinsic evidence; the sequence is flexible as long as the witness eventually has a chance to address it before the end of the case. The judge can control the order under FRE 611.

The other major limitation is collateral matters:

• If the inconsistency relates only to a collateral matter and has no independent relevance to any issue in the case, extrinsic evidence is not allowed. The cross-examiner must take the witness’s answer.
• If the inconsistency goes to a material fact (like who had the green light, whether the defendant confessed, or whether the witness could see), extrinsic evidence is allowed.

Exam Tip: When you see a prior inconsistent statement in a fact pattern, ask:

• Is it being offered just to show that the witness has changed stories?
• Or is the proponent trying to prove that what the prior statement asserted is actually true?
  If it is only the former, you are in impeachment-only territory, and the statement is not hearsay because it is not used for its truth.

Substantive Use (FRE 801(d)(1)(A))

A prior inconsistent statement is admissible for its truth (as nonhearsay) only if:

• It is inconsistent with the witness’s present testimony;
• It was made under oath, subject to penalty of perjury:
  • At a trial, hearing, or deposition (including a grand jury proceeding); and
• The declarant testifies and is subject to cross-examination about the statement.

Proceedings that qualify include:

• Civil or criminal trials,
• Preliminary hearings,
• Grand jury proceedings,
• Depositions taken in any case.

Proceedings that do not qualify:

• Unsworn police interviews (even if recorded),
• Signed but unsworn written statements,
• Statements to employers, insurers, or friends,
• Affidavits not given as testimony at a trial, hearing, or deposition.

If these elements are met, the statement can be used:

• To impeach the witness, and
• As substantive evidence of the facts asserted.

If any element is missing, the statement may still be used to impeach, but not as substantive proof, unless another rule (such as opposing party’s statement) applies.

Exam Warning: A common MBE decoy is an unsworn statement taken by a police officer and typed up or signed by the witness. Even if the statement is detailed and recorded, it is not “under oath at a prior trial, hearing, or deposition,” so 801(d)(1)(A) does not apply.

Key Term: Hearsay Within Hearsay
Hearsay within hearsay is a statement that itself contains another out-of-court statement. Each layer must be covered by a hearsay exception or exclusion before the entire statement is admissible.

Compare this to the former testimony exception (FRE 804(b)(1)):

• 801(d)(1)(A) applies when the declarant is testifying now and is inconsistent with prior sworn testimony.
• 804(b)(1) applies when the declarant is unavailable now and the opponent had an opportunity and similar motive to examine the witness at the earlier proceeding.

The MBE sometimes tests this distinction by changing whether the witness is available at the current trial.

Worked Example 1.1

A witness testifies at trial that she did not see the defendant at the scene. At an earlier grand jury proceeding, under oath, she testified that she saw the defendant standing next to the victim immediately before the crime. The prosecutor offers the grand jury transcript.

Answer:
The prior grand jury testimony is admissible both to impeach and as substantive evidence. Start by spotting hearsay: the transcript is an out-of-court statement offered to prove that the defendant was at the scene. Then apply 801(d)(1)(A). The witness is testifying now and is subject to cross, so the global requirement is satisfied. The prior statement is inconsistent: “I saw him there” vs. “I did not see him there.” It was made under oath in a formal proceeding—a grand jury—which counts as a “trial, hearing, or other proceeding” for 801(d)(1)(A). Therefore the statement is defined as not hearsay and can be considered for its truth. It also classically impeaches the witness by showing that she has changed her story. Because the witness is on the stand, there is no Confrontation Clause problem. The fact pattern is designed to see if you improperly assume all prior inconsistent statements are impeachment-only; here, the oath and proceeding requirements are precisely what make it substantive.

Worked Example 1.2

Same facts, except the earlier statement was made in an unsworn interview with a detective at the police station.

Answer:
The prior statement is admissible only to impeach the witness’s credibility under FRE 613; it is not admissible as substantive evidence because it was not made under oath at a trial, hearing, or deposition. Again, identify the purpose: the prosecutor wants to show that the witness has previously given a different account, suggesting unreliability. That use is nonhearsay (not offered for its truth) and is allowed for impeachment whether or not the statement was sworn. However, because the police-station interview was unsworn and not part of a qualifying proceeding, the 801(d)(1)(A) exclusion does not apply. Unless some other exception fits (for example, if the declarant were also the opposing party), the statement cannot be used to prove that the defendant was in fact at the scene. On the MBE, a common wrong answer will say “admissible substantively because prior inconsistent statements are nonhearsay”; that ignores the oath requirement. The correct analysis is: impeachment yes, substantive use no, plus a limiting instruction if requested.

Interplay with Party Admissions

If the witness is also a party, a prior inconsistent statement may come in under a different route:

• As an opposing party’s statement under FRE 801(d)(2), which is also defined as nonhearsay.

In that case, even an unsworn inconsistent statement made in a casual setting can be substantive evidence, not because of 801(d)(1)(A), but because it is the party’s own statement.

Worked Example 1.3

In a civil negligence case, the defendant testifies that he had only one beer before driving. The plaintiff offers a bartender’s testimony that the defendant told her that night, “I had at least ten beers before I left.”

Answer:
The bartender’s account is admissible both to impeach and as substantive evidence. As impeachment, it is a classic prior inconsistent statement: “one beer” vs. “ten beers.” As substantive evidence, it is admissible because it is the defendant’s own statement offered against him, which qualifies as an opposing party’s statement under Rule 801(d)(2)(A). Unlike 801(d)(1)(A), there is no oath or prior-proceeding requirement for party admissions, and the statement need not be against interest when made. Thus, the bar for admissibility is lower. On an MBE question, do not be distracted into thinking about 801(d)(1)(A); the better, simpler route is 801(d)(2). Also note that because the defendant is a party, the statement’s admissibility as substantive evidence does not depend on whether he testifies at trial, although here he happens to be on the stand.

Additional exam traps with prior inconsistent statements

• The prior statement may itself contain multiple layers of hearsay (for example, a witness’s prior testimony recounting another person’s out-of-court statement). Each layer must be supported by a hearsay exception or exclusion.
• A prior inconsistent statement that qualifies under 801(d)(1)(A) can be used by either side. The rule is not limited to the party that called the witness.
• A prior inconsistent statement offered to show that the witness has changed stories is not hearsay because it is not being used for its truth. The bar exam often tests whether you recognize this nonhearsay impeachment use.

Prior Consistent Statements

Prior consistent statements are treated as nonhearsay under FRE 801(d)(1)(B), but only when used for specific rehabilitative purposes. They are not a general “bolstering” tool.

Under the common law, prior consistent statements were often admissible only for rehabilitation, not for their truth. The Federal Rules go further: when the conditions of 801(d)(1)(B) are satisfied, the statements are admitted substantively.

The two branches of 801(d)(1)(B) FRE 801(d)(1)(B) has two branches FRE 801(d)(1)(B) has two branches

• 801(d)(1)(B)(i): To rebut a charge of recent fabrication or improper influence or motive, if the statement was made before the alleged motive arose.
• 801(d)(1)(B)(ii): To rehabilitate the declarant’s credibility when attacked on another non-character ground (e.g., inconsistency, faulty memory), even if timing does not precede any motive.

Both branches require that:

• The declarant testifies and is subject to cross-examination; and
• The prior statement is consistent with the trial testimony.

But they differ in timing and in the kind of attack that must precede the use of the prior consistent statement.

Key Term: Recent Fabrication / Improper Motive
A recent fabrication or improper motive is an accusation that the witness’s story is a recent invention or is influenced by some bias, bribe, deal, relationship, or other improper reason that supposedly arose at a particular time.

Rebutting a Charge of Recent Fabrication or Improper Motive

Under 801(d)(1)(B)(i), a prior consistent statement is definitional nonhearsay if:

• The witness’s credibility has been attacked with a suggestion of:
  • Recent fabrication, or
  • Improper motive or influence; and
• The prior consistent statement was made before the motive to fabricate or improper influence arose.

Classic pattern:

• Cross-examiner points to a motive to lie that arose at a specific time (for example, after being charged with a crime, after entering a plea agreement, after the start of a romantic relationship, or after filing a civil suit).
• Proponent responds with a prior consistent statement made before that time, showing that the story predates the alleged motive.

In that situation, the statement is admissible:

• To rehabilitate the witness by showing they told the same story earlier when they had no reason to lie; and
• As substantive evidence of what it asserts.

The timing requirement is strict. The Supreme Court in Tome v. United States held that a statement made after the alleged motive to fabricate arose does not qualify under this branch.

Worked Example 1.4

A witness testifies that the defendant confessed to her last year. The defense cross-examines aggressively, suggesting she invented the confession recently because she began dating the defendant’s enemy six months ago. The prosecution offers the witness’s written statement to police from a year ago, in which she reported the same confession.

Answer:
The prior consistent statement is admissible under FRE 801(d)(1)(B)(i) both to rebut the charge of recent fabrication and as substantive evidence. First, identify the attack: defense counsel suggests the witness is lying now to help her new boyfriend, the defendant’s enemy. That is a classic allegation of improper motive that arose at a particular time—when the relationship began six months ago. Second, check timing: the written statement to police was given a year ago, before the alleged motive existed. Third, confirm consistency: the earlier account of the confession matches the trial testimony. With those elements satisfied, 801(d)(1)(B)(i) applies. The statement therefore is not hearsay and can be considered for its truth (that the confession occurred). On the MBE, a common wrong answer will say “admissible only to rehabilitate, not for its truth.” Under the Federal Rules, that is incorrect; such statements are fully substantive once they fit the rule.

If, by contrast, the written statement had been made two months ago—after the relationship began—it would not qualify under 801(d)(1)(B)(i) and would usually be inadmissible for its truth (though it might sometimes be admissible under 801(d)(1)(B)(ii), as discussed next).

Rehabilitating After Other Non-Character Attacks

The modern rule (801(d)(1)(B)(ii)) also allows prior consistent statements, regardless of timing, as nonhearsay when:

• Offered to rehabilitate credibility after a different type of attack (such as alleged inconsistency or faulty memory), not involving a claim of recent fabrication or improper motive; and
• The consistent statement logically counters that attack.

For example:

• Attack: “Your story changed between your initial handwritten note and your later formal statement.”
• Response: A prior consistent statement made close in time to the event, or a later statement showing that the supposed inconsistency was trivial or promptly corrected.

The key is that the prior consistent statement must have a special rehabilitative value: it must actually respond to the specific form of impeachment.

Key Term: Rehabilitation
Rehabilitation is the process of restoring a witness’s credibility after it has been attacked, usually by explanation on redirect, character evidence for truthfulness, or prior consistent statements that respond to the attack.

Key Term: Bias
Bias is a relationship, interest, or incentive that may cause a witness to favor one side, such as family ties, financial interest, pending charges, or cooperation agreements with the prosecution.

Exam Tip: A prior consistent statement is never admissible simply to show “this witness has always told this story.” There must be a relevant attack on credibility, and the consistent statement must have a logical rehabilitative function tied to that attack.

Worked Example 1.5

A witness is impeached with a prior inconsistent detail about the color of a car. On cross, the defense points out that in an earlier handwritten note the witness did not mention the car’s color at all. The proponent offers a later formal statement, given two days after the accident, in which the witness described the car’s color consistently with the trial testimony.

Answer:
The prior consistent statement may be admissible under 801(d)(1)(B)(ii). Here, the attack is not that the witness recently fabricated the entire story for an improper motive. Instead, defense counsel is implying either inconsistency (the color has supposedly changed) or faulty memory (the witness omitted an important detail earlier). The later formal statement, made two days after the accident, is consistent with the trial testimony regarding color and tends to show that the omission in the handwritten note was insignificant or quickly corrected. That gives the later statement special rehabilitative value. Because the attack is on accuracy, not motive, the timing relative to any motive is irrelevant, and the statement can be treated as nonhearsay under 801(d)(1)(B)(ii). Once admitted, it is substantive evidence that the car was that color. A likely wrong answer will insist the statement is “hearsay” and usable only to rehabilitate; under the amended rule, that is too restrictive.

Relationship to Other Rehabilitation Methods

Prior consistent statements are just one way to rehabilitate a witness. A party can also:

• Let the witness explain on redirect examination,
• Offer character evidence of truthfulness (reputation or opinion) after a character-for-untruthfulness attack under FRE 608(a).

But under 801(d)(1)(B), prior consistent statements, when properly used, are unusually powerful because they come in for their truth.

Worked Example 1.6

In a fraud trial, the defendant calls an employee who testifies that the defendant fully disclosed all material facts. On cross, the prosecution suggests that the employee is lying because she was promised a bonus if the defendant is acquitted. The defendant offers evidence that six months before any investigation, the employee wrote an internal email describing the disclosure in the same way she has testified.

Answer:
The email is a prior consistent statement admissible under 801(d)(1)(B)(i). The prosecution’s attack is that the employee now has an improper motive to lie: a promised bonus contingent on acquittal. That motive arose only after the investigation and charges. The email predates the investigation by six months, so it clearly occurred before any bonus promise and before any incentive to shade the truth in the defendant’s favor. The email’s description of the disclosure matches the trial testimony, making it consistent. Because the statement predates the alleged motive and directly rebuts the claim of recent fabrication, it fits 801(d)(1)(B)(i). It therefore rehabilitates the witness and is substantive evidence that the disclosure occurred as described. On the exam, do not be tempted by answers insisting on an oath requirement; 801(d)(1)(B) does not require prior consistent statements to have been made under oath or at a formal proceeding.

Timeline approach for prior consistent statements

A useful way to analyze 801(d)(1)(B) on the exam is to draw a mental timeline:

• Mark the date of the event.
• Mark the date when the alleged improper motive or influence arose.
• Mark the date(s) of various consistent statements.

Then:

• For 801(d)(1)(B)(i), only prior consistent statements that fall before the motive point are eligible.
• For 801(d)(1)(B)(ii), timing can be before or after, but you must tie the prior statement to the type of impeachment (e.g., prior omissions, memory attack).

If the fact pattern never shows any attack on credibility, prior consistent statements remain inadmissible hearsay for the truth of what they assert.

Prior Identification Statements

Under FRE 801(d)(1)(C), a prior statement identifying a person after perceiving them is nonhearsay if:

• The declarant testifies at trial; and
• Is subject to cross-examination about the identification.

Key Term: Prior Identification
A prior identification is a statement by a witness identifying a person as someone the witness perceived earlier (for example, pointing out a suspect in a lineup or photo array, or spontaneously saying “that’s the man who robbed me” to police).

Key features:

• The identification must be made after perceiving the person—typically after seeing the suspect during or shortly after the event (a crime, accident, etc.).
• It does not have to be under oath or at a formal proceeding.
• The declarant need not repeat the identification in court; it is enough that the declarant is on the stand and available for cross-examination.

Often, a third person (for example, a police officer who conducted the lineup) testifies to the prior identification, as long as the declarant is also a witness at the trial.

Worked Example 1.7

A robbery victim testifies at trial and is cross-examined. Shortly after the crime, she picked the defendant out of a properly conducted lineup and told the officer, “That’s the man who robbed me.” The prosecutor calls the officer to describe what the victim said at the lineup.

Answer:
The officer’s testimony is admissible as nonhearsay under FRE 801(d)(1)(C). Begin with hearsay: the officer is recounting the victim’s out-of-court statement, offered to prove that the defendant is the robber. Ordinarily, that is hearsay. But here the victim testifies at trial and is subject to cross-examination about the identification. The statement qualifies as a “prior statement identifying a person after perceiving the person”: the victim saw the robber during the crime, then later picked him in a lineup and said “that’s the man.” Under 801(d)(1)(C), such a statement is defined as not hearsay and is substantive evidence of identity. The officer can testify because he personally observed the identification; the rule does not require the declarant alone to recount it. Also note there is no oath requirement, and the lineup’s timing (shortly after the crime) helps show reliability but is not an explicit element of the rule. The defense may cross-examine both the victim and the officer about the lineup’s suggestiveness, but that goes to weight, not admissibility under 801(d)(1)(C).

Witness Memory Loss and Prior Identifications

Even if the witness cannot remember the crime or the lineup details at trial, the prior identification may still be admissible, as long as:

• The witness is physically present,
• Takes the oath, and
• Can be questioned about the prior identification (even if the answers are “I don’t remember”).

This satisfies the “subject to cross-examination” requirement.

Exam Warning: If the identifying witness has died or is otherwise unavailable and cannot testify at trial, 801(d)(1)(C) does not apply. The identification is then classic hearsay. Unless another exception applies (for example, excited utterance, present sense impression, or recorded recollection), the identification will be excluded.

Worked Example 1.8

A victim testifies at trial that she “cannot remember” whether she identified anyone in a photo array. The prosecution offers testimony from a detective that, two weeks after the assault, the victim selected the defendant’s photograph and said, “I’m sure that’s him.” The defense objects that the victim has no current recollection of the identification.

Answer:
The detective’s testimony is admissible under FRE 801(d)(1)(C). The victim is present, sworn, and subject to cross-examination; she can be asked about the photo array even if she answers “I don’t recall.” Under United States v. Owens, such memory loss does not defeat the “subject to cross” requirement. The prior statement plainly identifies a person after perceiving him—the victim looked at the photos, recognized the assailant, and said “I’m sure that’s him.” The fact that she now lacks memory may undermine the weight the jury gives the identification, but not its admissibility. The detective’s testimony is thus nonhearsay and substantive evidence of identity. On the MBE, one tempting but wrong answer will say the statement is inadmissible because the victim cannot “authenticate” it due to her memory loss. That misunderstands 801(d)(1)(C): the rule focuses on the opportunity for cross-examination, not on the witness’s current memory.

Who May Testify About the Identification? Three common patterns appear Three common patterns appear

• The witness testifies, “I picked the defendant out of a lineup earlier.”
• The officer who ran the lineup testifies to what the witness said and did.
• Both testify.

Once the requirements of 801(d)(1)(C) are met, any witness with personal knowledge of the identification (including an officer) may describe it. There is no requirement that only the declarant recount the prior identification.

The officer’s account is a classic example of hearsay within hearsay:

• The officer’s testimony about what the witness said is one layer;
• The witness’s statement identifying the suspect is another.

The inner layer is admissible under 801(d)(1)(C); the outer layer is admissible because the officer is testifying in court based on personal knowledge (no hearsay problem for that layer).

Distinguishing Descriptions from Identifications

An identification under 801(d)(1)(C) must identify a person. A general descriptive statement like “the robber was tall and wore a red jacket” is not itself an “identification” within 801(d)(1)(C), though it may be admissible under another exception (such as present sense impression or excited utterance) or as nonhearsay (effect on listener).

The rule covers:

• Lineup identifications,
• Photo array identifications,
• One-on-one show-ups,
• Spontaneous statements such as “That’s him!” when a suspect walks by.

It does not cover identification of objects (for example, “that is the gun he used”) or identifications of a place.

Worked Example 1.9

Shortly after a burglary, a neighbor calls 911 and says, “The man next door, wearing a blue jacket, is climbing out of the window; that’s my neighbor John Smith.” At trial, the neighbor testifies but says she cannot remember who she saw. The 911 operator testifies to the neighbor’s earlier statement.

Answer:
The neighbor’s statement that the person was “my neighbor John Smith” is a prior identification and is admissible under 801(d)(1)(C), even though the neighbor cannot now recall the event. The neighbor is on the stand and subject to cross; her inability to remember goes to weight, not admissibility. The statement clearly identifies a person after perceiving him—she saw the man and named him. That portion is nonhearsay and substantive evidence of identity. The descriptive portion (“wearing a blue jacket”) is not an identification within 801(d)(1)(C), though it might separately qualify as an excited utterance or present sense impression. On an exam, an answer choice that lumps the entire 911 call together under 801(d)(1)(C) is overbroad; the rule covers the personal identification of John Smith, not every descriptive detail in the call.

Prior identifications and the Confrontation Clause

In criminal cases, the Confrontation Clause restricts the use of “testimonial” hearsay when the declarant does not appear at trial. But when a prior identification is admitted under 801(d)(1)(C), the declarant does appear and is subject to cross-examination. That usually satisfies the Confrontation Clause.

Key Term: Testimonial Statement
A testimonial statement is a statement made under circumstances where the primary purpose is to create evidence for later prosecution (for example, formal police interrogation or sworn testimony), as opposed to responding to an ongoing emergency.

By contrast, if the identifying witness is unavailable at trial and the identification is offered through a police officer, the statement will likely be considered testimonial and inadmissible under Crawford v. Washington unless the defendant had a prior opportunity to cross-examine the declarant and the statement fits a hearsay exception such as former testimony.

Impeaching Hearsay Declarants vs. 801(d)(1)

When an out-of-court statement comes in under a hearsay exception (for example, an excited utterance), the declarant may not testify at trial. In those cases, FRE 801(d)(1) does not apply because the declarant is not a testifying witness.

However, FRE 806 allows a hearsay declarant whose statement is admitted to be impeached as if he were on the stand. That impeachment may include prior inconsistent statements, bias, or other methods, but the prior statements are not transformed into nonhearsay under 801(d)(1).

For example:

• A victim’s 911 call is admitted as an excited utterance identifying the defendant as the attacker.
• The victim does not testify at trial (perhaps because she has died or refuses to appear).

The defense may still impeach the victim’s credibility by:

• Calling another witness to prove that the victim previously said she did not see the attacker, or
• Introducing evidence of the victim’s bias or motive to lie, or
• Offering character evidence for untruthfulness (subject to the usual rules).

But those impeaching statements are not 801(d)(1) nonhearsay; they are simply tools to reduce the weight of the admitted hearsay.

Key Distinction:

• 801(d)(1) requires that the declarant be a witness at the trial; it changes the hearsay status of specified prior statements, making them substantive.
• FRE 806 applies when the declarant is not testifying but their hearsay statement has been admitted; it permits impeachment but does not alter hearsay status.

Procedural differences between 613 and 806:

• Under 613(b), when impeaching a testifying witness with a prior inconsistent statement, there is usually an opportunity requirement: the witness must be given a chance to explain or deny the statement.
• Under 806, when impeaching a non-testifying declarant, there is no such opportunity requirement; the declarant is not on the stand. The impeaching party can introduce prior inconsistent statements without confronting the declarant.

Worked Example 1.10

A child victim’s statement to a teacher, “Daddy hit me,” is admitted in a criminal case as an excited utterance. The child is too young to testify. The defense offers evidence that the child previously said “I fell off the couch” when asked about a bruise.

Answer:
The child is not testifying, so 801(d)(1) is inapplicable. However, the defense may use the prior inconsistent statement under FRE 806 to impeach the credibility of the hearsay declarant. The earlier “fell off the couch” explanation conflicts with “Daddy hit me” and suggests unreliability or confusion. Because the child is not a witness at this trial, the defense is not required to give the child an opportunity to explain or deny the inconsistency; the child is unavailable and very young. The prior statement is admitted not for its truth (that the child actually fell off the couch), but to attack the trustworthiness of the excited utterance already admitted. On the MBE, a common trap is to conclude that the prior statement is inadmissible hearsay because no exception applies. Rule 806 specifically allows such impeachment, even though the impeaching statement itself does not fit a hearsay exception.

Summary: When a Prior Statement Is Only Impeachment

A prior statement is only admissible to impeach, not as substantive evidence, when:

• It is inconsistent with trial testimony but:

  • Was not given under oath at a prior trial, hearing, or deposition; and
  • Does not qualify as an opposing party’s statement; and
  • Does not relate to identification; and
  • Does not qualify as a prior consistent statement under 801(d)(1)(B); or

• It is consistent but:

  • There has been no relevant attack on credibility; or
  • It was made after the alleged motive to fabricate arose, and is not otherwise offered to rehabilitate under 801(d)(1)(B)(ii).

In these situations, the judge should, upon request, give a limiting instruction: the jury may use the statement to evaluate credibility, but not as proof of the facts asserted.

Exam Warning: Statements that do not meet 801(d)(1)’s specific requirements—especially unsworn prior inconsistent statements—are common on the MBE. Unless some other hearsay exception applies, they are admissible only for impeachment.

Revision Tip: When you see a prior statement:

• Check whether the declarant is testifying and subject to cross.
• Identify which 801(d)(1) category (if any) it fits.
• If it does not fit any, ask whether it can still be used for impeachment under FRE 607–613, or for a nonhearsay purpose (such as effect on listener).

Worked Example 1.11

At trial, a witness testifies that the traffic light was red when the defendant entered the intersection. The defense offers testimony from the witness’s mother that one week after the accident the witness said, “The light was green.” The statement was made at home, unsworn.

Answer:
The prior statement is admissible to impeach the witness (as a prior inconsistent statement under FRE 613) but not as substantive evidence, because it was not made under oath at a prior trial, hearing, or deposition, and the witness is not a party. First, consider hearsay. The mother’s testimony about what the witness said is an out-of-court statement offered, in part, to prove that the light was green. That is hearsay. It does not fit 801(d)(1)(A), because the statement was unsworn and not at a qualifying proceeding, and it is not a party admission under 801(d)(2). Therefore, the only proper use is impeachment: to show that the witness has told inconsistent stories. The judge should, if requested, instruct the jury that the statement may be considered only to assess credibility. On the MBE, an answer choice that says “inadmissible because hearsay” ignores the nonhearsay impeachment use; another that says “substantive evidence” ignores the oath requirement. The best choice will usually mention both impeachment and a limiting instruction.

Putting it all together: a comparative table

Although you will not see tables on the MBE, it helps to mentally organize the rules:

• Prior inconsistent statement:

  • Always admissible for impeachment (if not collateral).
  • Substantive only if under oath at prior trial/hearing/deposition, or if it is an opposing party’s own statement.

• Prior consistent statement:

  • Inadmissible if offered merely to show the witness is telling the same story.
  • Substantive and rehabilitative if:
    • Offered to rebut charge of recent fabrication/improper motive and made before the motive, or
    • Offered to rehabilitate after other non-character attacks (e.g., inconsistency, faulty memory) and logically responds to that attack.

• Prior identification:

  • Substantive when the declarant testifies and is subject to cross, regardless of oath or formality of the identification procedure.
  • Often proved through a third party who observed the identification.

If none of these categories fit, look for:

• Nonhearsay purposes (effect on listener, verbal acts),
• Other hearsay exceptions (excited utterance, present sense impression, business records, etc.), or
• Impeachment under FRE 806 for non-testifying declarants.

Key Point Checklist

This article has covered the following key knowledge points:

• Rule 801(d)(1) treats certain prior statements by a testifying witness as not hearsay.
• All 801(d)(1) categories require that the declarant testify and be subject to cross-examination about the statement.
• “Subject to cross” is satisfied if the witness is on the stand and can be questioned, even if the witness claims memory loss.
• Any prior inconsistent statement can always be used for impeachment; it is substantive evidence only if made under oath at a prior trial, hearing, or deposition, or if it qualifies as an opposing party’s statement.
• Prior inconsistent statements used only to impeach are nonhearsay because they are not offered for their truth; they often require a limiting instruction on request.
• Extrinsic evidence of prior inconsistent statements is allowed for non-collateral matters if the witness has an opportunity at some point to explain or deny and the opposing party can examine the witness about it.
• Prior consistent statements are substantive only when:
  • Used to rebut a charge of recent fabrication or improper motive, and made before the motive arose; or
  • Used to rehabilitate after certain other non-character attacks under 801(d)(1)(B)(ii), such as alleged inconsistency or faulty memory, and logically respond to that attack.
• The timing of prior consistent statements relative to the alleged motive to fabricate is heavily tested and often decisive on the MBE.
• Prior identification statements made after perceiving a person are substantive evidence under 801(d)(1)(C) if the declarant testifies and is subject to cross, and may be proved by any witness with personal knowledge of the identification.
• A witness’s inability to recall the events or the identification procedure does not, by itself, prevent use of a prior identification, as long as the witness is present and subject to cross-examination.
• 801(d)(1) does not apply if the declarant does not testify at the current trial; in that case you must use hearsay exceptions (e.g., excited utterance) and Rule 806 to impeach the hearsay declarant.
• Distinguish carefully between nonhearsay exclusions (801(d)(1), 801(d)(2)) and hearsay exceptions (803, 804); only the former mean “not hearsay” at all.
• Understand that statements can be admissible for one purpose (impeachment) but not another (substantive proof), making limiting instructions critical.
• Confrontation Clause issues arise primarily when testimonial hearsay is offered against a criminal defendant and the declarant is unavailable without prior cross; when a prior statement is admitted under 801(d)(1), the declarant’s presence and cross-examination usually satisfy the Clause.
• When a prior statement fails to meet 801(d)(1)’s requirements, consider whether it is:
  • Admissible for impeachment only,
  • Admissible for a nonhearsay purpose (effect on listener, notice), or
  • Admissible under another hearsay exception or exclusion.

Key Terms and Concepts

• Hearsay
• Statement
• Declarant
• Hearsay Declarant as Witness
• Prior Inconsistent Statement
• Prior Consistent Statement
• Prior Identification
• Impeachment
• Substantive Evidence
• Extrinsic Evidence
• Collateral Matter
• Nonhearsay Purpose
• Nonhearsay vs. Exception
• Recent Fabrication / Improper Motive
• Rehabilitation
• Bias
• Subject to Cross-Examination
• Hearsay Within Hearsay
• Limiting Instruction
• Testimonial Statement