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Hi BenLurkin, I hope you are well. I agree, I think Greta is incorrect. There are several ways for the defense to introduce it.

I can think of two possible exceptions, and would appreciate your view. First, I think it may be a present sense impression under exception 1.

“The following are not excluded by the rule against hearsay, regardless of whether the declarant is available as a witness:

“(1) Present Sense Impression. A statement describing or explaining an event or condition, made while or immediately after the declarant perceived it.”

The committee’s notes state:

“The underlying theory of Exception [paragraph] (1) is that substantial contemporaneity of event and statement negative the likelihood of deliberate of conscious misrepresentation. Moreover, if the witness is the declarant, he may be examined on the statement. If the witness is not the declarant, he may be examined as to the circumstances as an aid in evaluating the statement. Morgan, Basic Problems of Evidence 340–341 (1962).

“The theory of Exception [paragraph] (2) is simply that circumstances may produce a condition of excitement which temporarily stills the capacity of reflection and produces utterances free of conscious fabrication. 6 Wigmore §1747, p. 135. Spontaneity is the key factor in each instance, though arrived at by somewhat different routes. Both are needed in order to avoid needless niggling.”

Exception 2, of course is “excited utterance.”

The second basis would be that it would be an admission against interest, and not technically hearsay.

What are your, and other’s thoughts?

It could come in via the LE officer, or the videographer. I’m sure, in the sense of overkill, both are listed as witnesses by the defense.