5. The witness's testimony is most likely to be admitted if the witness is

The Federal Rules of Evidence (FRE) define hearsay as a statement, other than one made by the declarant while testifying at the current trial or hearing, offered into evidence to prove the truth of the matter asserted. Fed. R. Evid. 801(c).

A declaration made by a declarant during or soon after a startling event is admissible as an exception to the hearsay rule. The declaration must be made under the stress of excitement produced by the startling event. The declaration must concern the immediate facts of the startling occurrence. Fed. R. Evid. 803(2).

A statement that describes a person's medical history, past or present symptoms, or their inception or general cause is admissible as an exception to the hearsay rule if it was made for — and was reasonably pertinent to — medical diagnosis or treatment. Fed. R. Evid. 803(4). The cause or source of the injury must be reasonably pertinent to diagnosis or treatment to be admissible, and statements assigning fault or identifying a perpetrator are generally not considered pertinent. Statements by family members and bystanders may be admitted under this exception as long as the statements were clearly made to obtain a diagnosis or treatment for the patient.

C is correct. The victim's statement to the witness that the defendant was the assailant is an out-of-court statement being offered for the truth of the matter asserted — that the defendant assaulted the victim — and is thus hearsay. However, the victim's statement will be admissible if it was a statement relating to a startling event or condition made while the victim was under the stress of excitement caused by the event. If immediately after being assaulted, the victim telephoned her husband and identified the defendant as the assailant, her statement should be admissible under the excited utterance exception to the hearsay rule.

A is incorrect. A statement to a doctor identifying the assailant would not be made for the purposes of medical diagnosis or treatment and therefore, would be inadmissible for this purpose. Even if the identification were offered during the course of obtaining treatment, it was not made for the purpose of diagnosis or treatment.

B is incorrect. A statement to a minister during a counseling session identifying the assailant would not satisfy a hearsay exception, and moreover, such a statement may even be privileged based on the relationship between clergy-penitent.

D is incorrect. The statement to the police officer would have been made after the victim had the chance to consult her husband and therefore, it would not constitute an excited utterance. Only if the victim's statement was made immediately after the event would it be likely that her statement would be admissible.