1. Prosecution of D for the murder of V in a city plaza. It is undisputed that at the time of the killing, D was standing in a grassy area on the east side of the plaza, about 50 feet from V. D claims, however, that she had nothing to do with the killing. At trial, a critical issue is the direction from which the shots were fired. The prosecution claims the shots came from the grassy area, while D claims they came from a six-story building on the west side of the plaza. To prove that the shots issued from the grassy area, the prosecution calls W, and wishes to have her testify that she was in the plaza at the time of the killing, that she heard the sound of gunfire, and that moments later, she saw X, a bystander who she'd noticed had been in the plaza for several minutes, raise her arm and point toward the grassy area. D lodges a hearsay objection to W's testimony about X's actions. Which of the following statements is most accurate?
   1. The judge must decide whether X was asserting the direction from which the shots were fired. If the judge decides that she was, the evidence will be hearsay but admissible as a present sense impression.
   2. The judge must decide whether there is sufficient evidence to support the conclusion that X was asserting the direction from which the shots were fired. If the judge makes that finding, she will allow the jury to hear the evidence of X's conduct.
   3. Because the foundational elements for the excited utterance exception are clearly satisfied, the court must admit the evidence.
   4. Because X's conduct is irrelevant if he was not asserting the place from which the shots were fired, and inadmissible hearsay if X was in fact asserting the place from which the shots were fired, the judge must exclude the evidence.