Under FRE 801(d)(1), which statement correctly describes admission of a prior inconsistent statement when the declarant testifies?

Under FRE 801(d)(1), which statement correctly describes admission of a prior inconsistent statement when the declarant testifies?

• A. It may be admitted only if the prior statement was given under oath.
• B. It may be admitted if the declarant testifies and is subject to cross-examination about the prior statement.
• C. It is always admitted as substantive evidence.
• D. It can be admitted only if the statement was made after the inconsistencies.

Answer: (B)

The key idea is that a prior inconsistent statement can come in as not hearsay under FRE 801(d)(1) when the declarant testifies at trial and is cross-examined about the statement. If the witness is on the stand and subject to cross-examination about the prior inconsistency, that prior statement may be admitted and used as substantive evidence—the jury can consider it for the truth of the matter asserted. The declarant’s prior statement need not have been sworn or given in a prior proceeding; the essential requirement is the opportunity to cross-examine about it during trial. This is why the option describing admission only when the declarant testifies and is cross-examined about the prior statement is the best fit. The other statements add unnecessary or incorrect conditions: the prior statement doesn’t have to be sworn; it isn’t automatically admitted in all cases as substantive evidence; and the timing of when the prior statement was made isn’t the controlling factor.

The key idea is that a prior inconsistent statement can come in as not hearsay under FRE 801(d)(1) when the declarant testifies at trial and is cross-examined about the statement. If the witness is on the stand and subject to cross-examination about the prior inconsistency, that prior statement may be admitted and used as substantive evidence—the jury can consider it for the truth of the matter asserted. The declarant’s prior statement need not have been sworn or given in a prior proceeding; the essential requirement is the opportunity to cross-examine about it during trial.

This is why the option describing admission only when the declarant testifies and is cross-examined about the prior statement is the best fit. The other statements add unnecessary or incorrect conditions: the prior statement doesn’t have to be sworn; it isn’t automatically admitted in all cases as substantive evidence; and the timing of when the prior statement was made isn’t the controlling factor.