ADDENDUM
On Denial of Petition for Rehearing
PER CURIAM.This Court’s lead opinion holds that the trial judge erred in allowing several police officers to repeat in court a radio dispatcher’s statement that Boehner had said he wanted to “kill a cop.” Our holding rests on a dual foundation. First, if offered for the truth of the matter asserted, the officers’ testimony was inadmissible hearsay. Second, if offered not for the truth of the matter asserted, but merely to show the officers’ state of mind, the evidence was irrelevant to any material issue during the prosecution’s case-in-chief.
In a petition for rehearing, the state’s attorney concedes that the testimony was inadmissible for the truth of the matter asserted. However, he continues to argue that the testimony was offered only to show the officers’ state of mind. This mental state, the argument goes, was relevant to explain the officers’ tactical decisions on how to confront Boehner at his home. In our view, the argument loses sight of the fundamental principle that evidence is relevant only if it relates to a material issue. As our lead opinion explains, the officers’ tactical decisions did not constitute a material issue during the prosecution’s case-in-chief.
As a general rule, each element of an alleged crime is a material issue. However, issues relating to possible defenses must be raised by the defendant before the state may introduce evidence concerning them. See, e.g,, United States v. Abbadessa, 470 F.2d 1333 (10th Cir.1972). Here, the state contends that police tactics were placed at issue through defense counsel’s questioning of prospective jurors on voir dire. This contention has scant support in the record. Defense counsel asked only a few, broadly worded questions with any arguable nexus to police conduct. The more pointed inquiries on this subject were made by the prosecutor. In any event, questions and remarks by counsel are not evidence. Voir dire is an opportunity for counsel to survey juror attitudes and to detect possible biases. This inexact process does not define the scope of material issues at trial.
In United States v. Moschetta, 673 F.2d 96 (5th Cir.1982), a federal appellate court drew a similar distinction between material issues and remarks by counsel. There, the defendant was charged with conspiring to receive and transfer automatic weapons in violation of the federal Gun Control Act of 1968. In his opening statement, prior to the government’s case-in-chief, defense counsel told the jury that his client actually had been performing as a CIA agent when he bought and sold the weapons. During the government’s case-in-chief, in apparent anticipation of this defense, the prosecutor introduced over objection the affidavit of a CIA staff attorney who averred that the agency’s files contained no record that the defendant ever had worked there. The Fifth Circuit later ruled the evidence inadmissible for several reasons, one of which was explained as follows:
The [affidavit] obviously was not relevant or material to any issue in the case as of the moment [it] was offered into evidence. It is true that Moschetta’s counsel had mentioned in his opening statement that Moschetta would testify that he was a CIA agent, which meant that he could not have acted with the specific criminal intent in his dealings with ... the undercover ... agents. Counsel’s statement, however, standing alone, did not put in issue for purposes of the government’s case-in-chief the ques*318tion whether Moschetta was a CIA agent.
Id. at 101, n. 2.
The state has invited our attention to numerous other cases discussing the general topics of relevance and mental state. However, the cases cited do not analyze the precise question now before us. Perhaps the case closest on the facts is State v. Collier, 736 P.2d 231 (Utah 1987). There, the prosecutor presented testimony by a police officer that an anonymous informer told him the defendant had declared he “would not be taken alive.” The Utah Supreme Court held this testimony to be outside the hearsay rule because it was admitted not to show that the defendant had made such a statement but to explain why the police established a secure stakeout near a place where the defendant was hiding. The court’s opinion did not indicate whether the testimony was presented on rebuttal or during the prosecution’s case-in-chief. Consequently, we cannot discern whether the opinion actually would support the state’s position in the instant case. Moreover, on the critical question whether the testimony, given its nonhearsay purpose, was relevant to a material issue in the case, the Utah court offered no analysis. It said only that the officers’ state of mind was relevant because the defendant once had called the police “pigs.” This elusive rationale provides no guidance to us here.
The state next focuses on a suggestion in our lead opinion that the officers’ “kill a cop” testimony could have been offered in rebuttal if and when the defense presented evidence raising an issue as to whether the police had acted properly.* The state now argues that “no prosecutor is guaranteed the opportunity to present rebuttal testimony---- [The prosecutor] was not required to sit on relevant testimony and risk losing it if the defendant chose not to present any evidence.” The argument is disingenuous. The state suffers no “loss” if rebuttal testimony becomes unnecessary because the defendant has presented nothing to rebut. The state cannot bootstrap rebuttal testimony into its case-in-chief by anticipating a defense and then characterizing the unmade defense as a material issue. If this does occur, the defendant is denied his right to choose whether, and how, to raise certain defenses. He may be forced to litigate, or to default on, an issue he would not otherwise have raised. Moreover, when rebuttal evidence is offered prematurely, the trial judge is not well situated to evaluate the probative value of the evidence on the unframed issue, or to weigh such value against any unfair prejudice.
Finally, the state suggests that our lead opinion contradicts itself by holding the officers’ “kill a cop” testimony to be irrelevant while also holding it to be so prejudicial that the error could not be deemed harmless. The perceived contradiction is a result of the state’s failure to distinguish between the hearsay and nonhearsay uses of the testimony. If used for the nonhearsay purpose ascribed to it by the district court, the testimony was irrelevant to a material issue during the prosecution’s case-in-chief. If used to prove the matter asserted — that Boehner had expressed a desire to “kill a cop” — the testimony was highly relevant to a material issue but it also was inadmissible under the hearsay rule. To the extent the evidence was considered by the jury for an improper purpose, it was unfairly prejudicial.
Accordingly, the petition for rehearing is denied, and the case is remanded for a new trial.
The state did, in fact, present other evidence during rebuttal that Boehner had expressed a willingness to kill a police officer. As discussed in our lead opinion, the state presented a transcript of testimony given at the preliminary hearing by a woman who claimed to have heard Boehner make such a remark. The sole challenge to that evidence in this appeal has been that its probative value was exceeded by unfair prejudice. Our lead opinion rejects that challenge. However, the district court on remand should reconsider the admissibility of the transcript itself, as opposed to live testimony from the witness, in light of the Supreme Court’s recent decision in State v. Elisondo, 114 Idaho 412, 757 P.2d 675 (1988), overruling State v. Mee, 102 Idaho 474, 632 P.2d 663 (1981).