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77. Is the neighbor's testimony about the woman's statement admissible?
A pedestrian sued a defendant for injuries he suffered after the defendant allegedly drove his car through a red light and struck the pedestrian in a crosswalk. At trial, a woman who had seen the accident testified that she clearly saw the defendant run the red light and hit the pedestrian. The defendant did not cross-examine the woman, and she was excused as a witness and immediately left the jurisdiction. The defendant then called the woman's neighbor to testify that the woman had told him a week after the accident that the defendant had not run the red light. The pedestrian objects to the neighbor's testimony about the woman's statement.
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A is incorrect. The woman's out-of-court statement would be hearsay if offered to prove that the defendant did not run the red light and may not be offered for that purpose without an applicable hearsay exception. Additionally, extrinsic evidence of her prior inconsistent statement may not be offered to impeach her, because she had no opportunity at trial to explain or deny the earlier statement.
B is incorrect. The woman's out-of-court statement is inadmissible hearsay if offered to prove that the defendant did not run the red light.
C is incorrect. Extrinsic evidence of the woman's prior inconsistent statement may not be offered to impeach her because she was not given an opportunity at trial to explain or deny the earlier statement. Fed. R. Evid. 613(b). The woman was excused and left the jurisdiction prior to the neighbor's testimony which raised the inconsistency.