Which is NOT a proper form of prior statement under Rule 801(d)(1)?

• A. A statement used to refresh memory while testifying
• B. Inconsistent with the declarant's current testimony
• C. Consistent and offered to rehabilitate
• D. Identification made after perceiving the person

Answer: (D)

Rule 801(d)(1) identifies certain prior statements by a declarant who testifies that are not hearsay. The forms that fit are: a prior inconsistent statement made under oath at a prior trial, hearing, or deposition (usable for impeachment and, if meeting the oath condition, for substantive purposes); a prior consistent statement offered to rehabilitate the declarant's credibility if the declarant is being challenged on credibility; and an identification of a person made after perceiving that person (identification is admissible when the declarant testifies and is subject to cross-examination).

A statement used to refresh the witness’s memory while testifying is not a form under this rule. Refreshing memory is governed by Rule 612, not 801(d)(1), so it isn’t treated as a “prior statement” admissible under this rule. The other options describe forms that are allowed under 801(d)(1): an inconsistent statement made under oath in a prior proceeding, a consistent statement offered to rehabilitate credibility, and an identification made after perceiving the person.