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Defendant is on trial for murder. The prosecution called Sherwin Holmes, who testified that he had observed a man enter the house in which the

Defendant is on trial for murder.

The prosecution called Sherwin Holmes, who testified that he had observed a man enter the house in which the murder was committed, that the man was 6 ' 2" tall, white, stocky, had a tattoo on the back of his left hand, and a scar just below his left cheekbone.

He then identified the defendant as that person.

The defense established that Sherwin was currently in jail, awaiting prosecution for assault with a deadly weapon arising from a burglary that happened two weeks after the murder. (It is clear that Sherwin could not have committed the murder.) The defense impliedly argued that Sherwin was testifying in the hope of leniency on the burglary charge.

The prosecution, on re-direct, offered evidence that Sherwin gave the police a description of the person he observed one day after the murder. The description included all the information given in his testimony, and also included a description of the scar on the left cheek as "the classic Heidelberg dueling scar, a couple of inches long" which is a reasonably close description of the defendant's scar.

Defendant objected to the evidence, arguing that it was inadmissible hearsay.

Is reliance on 801(d)(1)(B) the prosecution's best response?

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