§ 31.12 IMPEACHMENT OF DECLARANTS: FRE 806

• Jurisdiction: United States

§ 31.12. IMPEACHMENT OF DECLARANTS: FRE 806

Rule 806 also governs the admissibility of evidence relating to the credibility of hearsay declarants and persons who make representative admissions.¹⁰⁹ As the federal drafters explained, "The declarant of a hearsay statement which is admitted in evidence is in effect a witness. His credibility should in fairness be subject to impeachment and support as though he had in fact testified."¹¹⁰ Accordingly, declarants may be impeached by showing bias, defects in mental or sensory capacity, untruthful character, and so forth as discussed in the credibility chapter (chapter 22).

Due to differences between the context in which live witnesses and hearsay declarants are impeached, several issues need to be addressed.

Prior convictions. If, for example, the hearsay statement of a declarant is admitted into evidence, Rule 806 applies, and the declarant may be impeached with evidence of a conviction under Rule 609.¹¹¹ Thus, an accused may be impeached even though he never testified.¹¹² Rule 806 has even been held to permit impeachment of a defendant whose out-of-court statements were offered by the prosecution or a codefendant¹¹³ and who thus did nothing to put his credibility at issue. This result has been justly criticized.¹¹⁴

Specific acts reflecting untruthful character. Rule 608(b) restricts impeachment with specific instances reflecting untruthful character to cross-examination; extrinsic evidence is prohibited.¹¹⁵ If the hearsay declarant does not testify, however, application of the ban on extrinsic evidence would preclude this method of impeachment. One court has interpreted Rule 806 to permit impeachment of a hearsay declarant with extrinsic evidence in this context. In United States v. Friedman,¹¹⁶ the Second Circuit stated: "Rule 806 applies, of course, when the declarant has not testified and there has by definition been no cross-examination, and resort to extrinsic evidence may be the only means of presenting such evidence to the jury."¹¹⁷

Inconsistent statements. The second sentence of Rule 806 establishes a special rule for impeachment by evidence of inconsistent statements: "The court may admit evidence of the declarant's inconsistent statement or conduct, regardless of when it occurred or whether the declarant had an opportunity to explain or deny it." Hence, Rule 613(b), which requires that a witness be provided an opportunity to explain or deny an inconsistent statement as a condition for the...