Considerable discussion has existed through the years among the courts, attorneys and commentators as to whether a prior out-of-court statement of a testifying witness should be classified as hearsay.1 The orthodox view is that the hearsay rule applies even though the witness is on the stand, under oath and subject to cross-examination about the prior statement. The logic of this view is, however, questionable since the dangers against which the hearsay rule is designed to protect are largely non-existent due to the ability to cross-examine the witness about the prior statement. Yet New York, like all other jurisdictions, still follows the view that a prior statement of a testifying witness is hearsay when offered for its truth.2
New York nonetheless recognizes three, albeit limited, hearsay exceptions encompassing a prior statement of a testifying witness, which exceptions turn upon the nature of the statement. These exceptions are for: (a) in civil actions certain prior statements that are inconsistent with the witness’ trial testimony; (b) in all actions prior statements which are consistent with the witness’ trial testimony and are offered to rebut a charge of recent fabrication or improper motive made against the witness; and (c) in criminal cases certain prior statements of identification.3
