Attacking the Credibility of a Non-testifying Hearsay Declarant

• Jurisdiction: Colorado,United States
• Citation: Vol. 29 No. 3 Pg. 51
• Pages: 51
• Publication year: 2000

29 Colo.Law. 51 Colorado Lawyer 2000.

2000, March, Pg. 51. Attacking the Credibility of a Non-testifying Hearsay Declarant

---

51

Vol. 29, No. 3, Pg. 51

The Colorado Lawyer
March 2000
Vol. 29, No. 3 [Page 51]

Specialty Law Columns
Civil Evidence
Attacking the Credibility of a Non-testifying Hearsay Declarant
by Roxane J. Perruso

Q: When a hearsay statement is admitted into evidence as proof of the matter asserted, can a party present evidence attacking the credibility of the declarant even if the declarant does not testify at trial

A: Yes. Even though the hearsay declarant does not testify at trial, under C.R.E. 806, a party may present evidence attacking the declarant's credibility using any evidence which would have been admissible for that purpose if the declarant had testified as a witness

Assumed Facts

Plaintiff Tiffany Tower ("Tower") has sued Defendant Green, Inc. ("Green"), a lawn mower manufacturer, in Colorado state court, asserting a claim for strict products liability. Tower alleged that her lawn mower which Green manufactured, had a defective part that broke, causing her grievous injury. During discovery, Green deposed an independent lawn mower mechanic, Eric Erasure ("Erasure"), who replaced and then destroyed the part that was allegedly defective. Erasure testified at his deposition that he examined the part before replacing it and saw that the part was cracked, which Tower's expert will opine was due to a manufacturing defect.

Tower intended to call Erasure to testify at trial, but Erasure died several months before trial. Under Colorado Rule of Evidence ("C.R.E.") 804(b)(1), the court admits Erasure's deposition testimony that the lawn mower part had a crack in it. To impeach Erasure's testimony, Green wants to introduce testimony from Harriet Harper ( "Harper") that, after Erasure's deposition, and a month or so before he died, Erasure told Harper "off the record" that the lawn mower part was not really cracked. Tower objects to the admission of this testimony on the grounds that Erasure will not be given the chance to "deny or explain" Harper's testimony, as required by C.R.E. 613. Alternatively, if the court admits Harper's testimony, Tower would like to submit testimony from Jim Jaded ("Jaded"), a close friend of Erasure's, that Erasure told him (around the same time that he talked to Harper) that the part was cracked. How...