In a perjury trial, after the civil case, the defendant privately admitted knowledge of the fraud. Is the witness’s testimony admissible?

• A. Yes, to impeach the defendant's testimony and as substantive evidence.
• B. No, because it is hearsay.
• C. Yes, but only for impeachment.
• D. No, because it is privileged.

Answer: (C)

The key idea is impeachment: a party’s out-of-court admission about the fraud, even if it's private and not made under oath in the current case, can be used to challenge the defendant’s credibility in a perjury prosecution. Such an admission is not hearsay because it’s an admission by a party opponent. However, its use as substantive proof of the underlying fraud is limited here because it wasn’t made under oath in the current proceeding (and wasn’t given in a prior sworn testimony in a way that would qualify for a substantive exception). So the witness’s testimony is admissible to impeach the defendant’s credibility, but not as substantive proof of the fraud itself.