He Say-She Say-Hear Say

By: Monte E. Hester; March 1997

                The benefits of Evidence Rule 806 are often overlooked.  The Federal Rule and The State Rule are the same, and they read as follows:

                Rule 806: Attacking and Supporting Credibility of Declarant.

                  When a hearsay statement, or a statement defined as Rule 801(d)(2), (C), (D), or (E), has been admitted in evidence, the credibility of the declarant may be attacked, and if attacked may be supported, by any evidence which would be admissible for those purposes if declarant had testified as a witness.  Evidence of a statement or conduct by the declarant at any time, inconsistent with the declarant's hearsay statement, is not subject to any requirement that the declarant may have been afforded an opportunity to deny or explain. If the party against whom a hearsay statement has been admitted calls the declarant as a witness, the party is entitled to examine the declarant on the statement as if under cross-examination.

                Rule 801(d)(2):

                (C) a statement by a person authorized by the party to make a statement concerning the subject, or (D) a statement by the party's agent or servant concerning a matter within the scope of the agency or employment, made during the existence of the relationship, or (E) a statement by a coconspirator of a party during the course and in furtherance of the conspiracy.

                This rules gives a lawyer the opportunity in dealing with hearsay statements and statements as defined in Rule 801(d)(2), (C), (D), or (E) to impeach with inconsistent statements made both before and after the hearsay statements were made by the declarant.  And wonderfully it is not a requisite that the declarant have been afforded the opportunity to deny or explain.  This is a chance to take over and create a rather convincing demonstration of the unreliability of the hearsay declarant, providing inconsistent statements have been made.

                Also, you can use all of the other impeaching techniques, i.e., asking the witness about the declarant's interest in the case, showing relationships with other witnesses, convictions of crimes or moral turpitude, other false statements, and any other factors that would call to question the veracity, credibility or reliability of any statements made by a declarant through a witness.

                This rule can be of great benefit in cross-examining a witness who is giving testimony regarding statements purportedly made by an indicted or unindicted coconspirator.  With the right preparation and the right coconspirator one can have a field day virtually unabated in assailing the declarant, resulting in the destruction of the evidence offered against your client.

                This rule applies to both civil and criminal cases and once used effectively in either forum you will look forward to the next opportunity and your adversary will become much more conservative in the utilization of hearsay.