Incorrect. Although the statement is hearsay, the judge should overrule the objection because the prosecutor has asked the question to impeach Fred through his prior inconsistent statement.

Fred’s prior statement was inconsistent with his testimony at trial. It is hearsay in that it is an out-of-court statement offered to prove the truth of the matter asserted. Although Rule 11-801(D)(1) NMRA 1999 provides that prior statements under oath are not hearsay, this statement was not under oath. Because it is hearsay, and because there are no applicable exceptions to the hearsay rule, the statement cannot be admitted into evidence.

That does not mean, however, that the trier of fact cannot hear the inconsistent statement. Even though the statement is hearsay, it may be admitted not for the truth of what it asserts, but for impeachment purposes. In other words, it may be introduced into the trial for the sole purpose of challenging Fred’s credibility as a witness. See State v. Gutierrez, 1998-NMCA-172, 126 N.M. 366 (Ct. App. 1988). Therefore, the prosecutor is entitled to an answer to this question.

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