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34. The testimony offered concerning the witness's identification of the defendant is
At a defendant's trial for sale of drugs, the government called a witness to testify, but the witness refused to answer any questions about the defendant and was held in contempt of court. The government then calls a police officer to testify that, when the witness was arrested for possession of drugs and offered leniency if he would identify his source, the witness had named the defendant as his source.
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A prior consistent statement, regardless of whether made under oath, is not hearsay if it is offered under either of the following circumstances: (i) to rebut an express or implied charge that the witness is lying or exaggerating because of some motive, provided the prior consistent statement was made before the onset of the alleged motive to lie or exaggerate, Tome v. United States, 513 U.S. 150 (1995); or (ii) to rehabilitate a witness whose credibility has been impeached on some non-character ground other than a charge of recent motivation to lie or exaggerate, such as an alleged inconsistency or sensory deficiency. Fed. R. Evid. 801(d)(1)(B).
A witness's prior statement identifying a person as someone he perceived earlier is not hearsay. Fed. R. Evid. 801(d)(1)(C). Before a prior identification is admissible as substantive evidence, the declarant must testify at the trial or hearing and must be subject to cross-examination concerning the statement.
C is correct. The police officer's testimony regarding the witness's statement naming the defendant as his source is being offered for the truth of the matter asserted — that the defendant was the source for the drugs. Therefore, the testimony is hearsay and does not fall within any applicable exception to the hearsay rule.
A is incorrect. The witness has never testified or been subject to cross-examination, so his prior statements are not admissible. In addition, the witness's hearsay statement is not being offered to rebut an express or implied charge against the declarant of recent fabrication or improper influence or motive.
B is incorrect. As explained above, the witness has never testified or been subject to cross-examination, so his prior identification is also not admissible. In addition, the witness's hearsay statement was not simply one of identification of the defendant, such as «That is the defendant,» but instead it was a statement of fact that the defendant supplied him with drugs.
D is incorrect. This answer reaches the correct answer with the wrong reasoning. Because the testimony is inadmissible hearsay, the analysis ends there. There is no need to determine the witness's confrontation rights were violated.