This is a hard one. I think the best response is that the hearsay rule does not apply because this statement is being offered to lay a foundation under Rule 104 for cop's subsequent identification of Dealer. If you recall, the rules of evidence do not apply when laying foundations.

The next best response would be that the statement is not being offered for the truth of whether Dealer wore top hats in past, but as a prediction of the future -- that he would be wearing a top hat when the cop goes to meet him. Predictions of the future are not hearsay because they are not asserting anything.

If you thought this was a statement of identification by a witness, that exemption won't work because the statement is made by Middle Man, and he is not testifying and available for cross-examination.

If you said co-conspirator admission, that won't work because there is no independent proof that the conspiracy exists yet.

Cop then testifies that Middle Man said "I know another dealer who can double the score."

If this is objected to as hearsay, what response?

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