1503

I would argue:

This evidence of a prior inconsistent statement made under oath (depositions are always under oath) and so is exempted from the definition of hearsay by 801(d)(1)(a).

The difference between a prior inconsistent statement not for its truth and an 801(d)(1)(a) prior inconsistent statement is significant. If a statement is not admitted for its truth, the only thing the defense can do is argue that Turner’s memory is bad so he’s an unreliable witness (impeachment), but to do that, the defense runs the risk of helping the plaintiff prove damages.  However, if the defense can get the prior speed estimate in for its truth, then she can argue that this is evidence her client was really going only 25, and therefore driving safely,

Questions? Email tanford@indiana.edu and refer to 1503.

Now look at item 11 in redirect examination. How should the judge rule on the hearsay objection?  When you think you know the answer, click here.