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12. The witness's testimony should be
The defendant called a witness to testify that later the bystander, now deceased, told the witness that the defendant went through a yellow light.
In an automobile collision case brought by a plaintiff against a defendant, the plaintiff introduced evidence that a bystander made an excited utterance that the defendant ran the red light.
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C is correct. Statements may sometimes be admitted even though the declarant does not testify at the trial, like in this case, because the statement was a valid hearsay exception. When a hearsay statement has been admitted into evidence, the credibility of the declarant may be attacked (even though the declarant did not testify), and if attacked, may be supported by any evidence that would be admissible if the declarant had testified as a witness. In these instances, the declarant need not be given the opportunity to explain or deny the prior statement. Therefore, the witness's testimony that the bystander had told him that the defendant went through a yellow light is admissible only for the purpose of impeaching the bystander's earlier statement that the defendant ran a red light.
A is incorrect. The bystander's statement to the witness after the accident would be considered hearsay if it were being offered for the truth of the matter asserted. However, it is only being offered to impeach the bystander's earlier statement that the defendant ran the red light. Therefore, under FRE 806, this statement is admissible solely for purposes of impeaching the credibility of the bystander, not as substantive evidence.
B is incorrect. The availability and ability of the declarant to explain inconsistencies is not the test for determining the admissibility of statements. The bystander's statement that the defendant ran a red light was already found admissible under the excited utterance exception, so his later statement that the defendant ran a yellow light can be used to impeach his first statement. The bystander's unavailability does not preclude use of the statement for purposes of impeachment.
D is incorrect. The bystander's statement to the witness is hearsay and inadmissible as substantive evidence regarding the color of the light. Because the bystander was not available to testify and his prior inconsistent statement was not under oath, it cannot be used as substantive evidence. However, under FRE 806, it is admissible for purposes of impeachment of the bystander's earlier statement.