Intro to the Federal Rules of Evidence - 53

C. NON-HEARSAY

1. Prior statement by witness (FRE 801(d)(1))
a. Rationale
Since the witness is now subject to cross-examination, there is no danger of lack of cross-examination.

b. Inconsistent statement (A)
i) Requirements
1) The declarant must testify, subject to cross-examination, at the current trial.
An inconsistent grand jury testimony is admissible against the accused, though the accused had neither a chance to X-X nor a right to be present. Since in the current trial, W is subject to X-X, there is no Confrontation Clause issue. In contrast, a grand jury testimony other than by W is not admissible under the Confrontation Clause.

2) The prior statement must be inconsistent with the W’s trial testimony.

3) The prior statement must have been given under oath
Though required to be under oath, there is no requirement of cross-examination. Thus, a prior inconsistent statement may be admitted when there was no cross-examination, or even any opportunity for cross-examination.

4) The prior statement must have been made at a trial, hearing, or other proceeding, or in a
deposition.
A hearing is interpreted to include any setting in which sworn testimony by a witness is taken. And a proceeding is interpreted to include any official inquiry conducted in a manner authorized by law whether judicial, administrative, legislative, investigative, or inquisitorial.

ii) Substantive evidence & impeachment evidence
The prior inconsistent statement may be admissible not only as substantive proof but also for impeachment purposes.

c. Consistent statement made before alleged fabrication (B)
i) Requirements
1) To rebut the allegation of improper motive to tell a lie.
2) Statement made before the alleged fabrication
A prior consistent statement made after the motive to lie arose is not admissible. Tome v. United States, 513 U.S. 150 (1995)

ii) No oath requirement

iii) Substantive evidence & rehabilitation evidence
Such a prior consistent statement may be admissible not only substantive evidence but also evidence as to the witness’ credibility.

d. Identification (C)
i) No oath or proceeding required
Prior identifications are easier to get into evidence than are prior inconsistent or consistent statements.

ii) Identification made after perceiving
Photo identifications are within the scope of this rule.

iii) Current ability to cross-examine
So long as an opponent has the ability to ask questions to the declarant about his prior identification, the prior identification qualifies as non-hearsay under FRE 801(d)(1)(C) even though the declarant admits to having a total lack of memory about the event that gave rise to the identification. See U.S. v. Owens, 484 U.S. 554 (1988).

iv) Substantive evidence & rehabilitation evidence
Evidence of any prior statement of identification made by a witness is admissible not only to bolster the witness’s testimony, but also as substantive evidence that the identification was correct.