Consider the following scenario: a defendant is charged with falsely spreading a bomb scare at her school.
- The prosecution offers a witness, Anne, who testifies that she was standing in the school hallway when she heard a student who was walking by say that a bomb had been planted and would go off at noon.
- When the prosecution asks Anne on the stand if the person who made that statement is in the courtroom, she nods her head and points to the defendant.
- The defense offers a prior statement given by Anne to police officers at the school that she did not clearly see who made the statement in the hallway about the bomb being planted.
- Defense offers a witness, Jacob, who testifies that he was in the school hallway when Anne turned to him and said that she just heard students say a bomb had been planted in the school.
- Jacob further testifies that when he asked Anne which student made the statement, Anne just "stared blankly, her jaw dropped, and she shook her head."
Explain whether the evidence in each example is an admissible hearsay or not.
Anne's statement that she overheard a student state a bomb was planted and would go off soon is most likely admissible either as an excited utterance (res gestae) or an admission against interest, each of which is an exception to the hearsay rule. Furthermore, the statement is most likely admissible under any circumstances as it does not truly constitute hearsay. The hearsay rule only applies if the statement made is introduced to prove its truth. Here, the statement was offered as evidence not to prove that a bomb was in fact planted, but merely that the person made the statement. In this instance, it does not constitute hearsay. Additionally, since the defendant is the person charged with making the statement and is present, he/she has the opportunity to refute the statement; therefore hearsay would not apply once again.
Anne's previous statement to Police may be used to impeach her testimony; but it does not make it inadmissible. Jacob's statement is admissible, as Anne is present to deny or refute it. His comments about Anne's expression again might be used to impeach her testimony.