A defendant is on trial for burglary. A police officer testifies that within minutes of arriving at the scene, a bystander who has since refused to appear in court exclaimed, "I just saw someone wearing a red hat run out of that house!" The prosecution offers the bystander's statement to prove that a person wearing a red hat fled immediately after the burglary. Under the Federal Rules of Evidence, how should the court treat the statement?
The statement is hearsay but is admissible under the present-sense-impression exception.
The statement is admissible only if the bystander is unavailable and the prosecutor presents it as former testimony.
The statement is inadmissible hearsay because it is offered for the truth of the matter asserted and no exception applies.
The statement is non-hearsay because it merely explains the officer's subsequent investigation.
The statement is hearsay because it is an out-of-court declaration offered for its truth. However, it is admissible under the present-sense-impression exception, FRE 803(1). The bystander described an event (a person in a red hat running from the house) while perceiving it or immediately thereafter, and this exception applies regardless of the declarant's availability. Therefore, the court should admit the statement over a hearsay objection. The other options mischaracterize the rule: (1) excluding the evidence ignores the present-sense-impression exception; (2) calling it non-hearsay is wrong because it is offered for truth; (3) former-testimony and unavailability are irrelevant here.
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