§806 Attacking and Supporting Credibility of Nontestifying Declarant

• Library: Evidence Restated Deskbook (2021 Ed.)

§806 Attacking and Supporting Credibility of Nontestifying Declarant

When a hearsay statement has been admitted in evidence in a form other than testimony by the declarant, the credibility of the declarant may be attacked and, if attacked, may be supported by any evidence that would be admissible for those purposes if the declarant had testified as a witness. Evidence of a statement or conduct by the declarant at any time that is inconsistent with the hearsay statement is not subject to any requirement that the declarant has been afforded an opportunity to deny or explain.

But prior inconsistent statements may not be shown at trial to impeach deposition or preliminary hearing testimony unless a proper foundation was laid when the testimony was given providing the witness an opportunity to admit, deny, or explain. The foundation may be dispensed with when it would be fair to do so.

Notes

The rule allowing an attack on the credibility of a hearsay declarant when that declarant's hearsay declaration is admitted in a form other than the testimony of the declarant is generally applied when the declarant is unavailable to testify at trial and the declaration is admitted into evidence because of an exception to the hearsay rule. Because necessity normally justifies admission of the declaration, the party against whom it is offered ought, in fairness, to have the ability to test the reliability and credibility of the declaration. State v. Cole, 547 S.W.2d 494, 496–97 (Mo. App. S.D. 1977); State v. Ivicsics, 604 S.W.2d 773, 780 (Mo. App. E.D. 1980).

· Impeaching a dying...