MBE Rules · Evidence
Non-hearsay — prior statements of witness
FRE 801(d)(1)
The rule
A declarant-witness's prior statement is NON-hearsay if declarant testifies and is subject to cross AND: (A) prior inconsistent statement given under oath at prior proceeding (used substantively); (B) prior consistent statement to rebut fabrication charge OR to rehabilitate credibility; (C) prior identification of a person.
In plain English
A witness's earlier statements can be used in court if they testify and can be questioned. These include statements made under oath that contradict their current testimony, statements that support their credibility, or previous identifications.
Worked example
At trial, the defendant claims they weren't at the scene. Officer A testifies and is cross-examined, and their earlier sworn statement identifying the defendant at the scene is used to challenge the defendant's claim.
Memory hook
Witness words, not whispers. Prior statements can speak if witness is present, cross-examined, and statement fits A, B, or C.
The trap
Students think: Any prior statement is non-hearsay if the witness is present. Wrong, because it must also fit under specific criteria A, B, or C. The actual test is whether it meets these conditions.
How examiners test it
The MBE loves: witness testifies, prior statement under oath. Trap: students forget it must be inconsistent to use substantively (A). Question often hinges on whether conditions A, B, or C are satisfied.
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