## **Learning Outcomes**

This article explains impeachment of hearsay declarants for the MBE, including:

- How Rule 806 operates when hearsay or Rule 801(d) statements are admitted for their truth, and how to recognize in fact patterns that the declarant’s credibility is “in issue.”
- Which parties may impeach a hearsay declarant, at what procedural stages they may do so, and why the rule allows even the proponent of the statement to attack that declarant.
- The full menu of impeachment techniques—prior inconsistent statements, bias or motive, sensory or mental defects, character for untruthfulness, and qualifying convictions—and how each is tested in common Evidence fact patterns.
- How extrinsic evidence may be used to prove prior inconsistent statements or bias of the declarant, and the special Rule 806 dispensation from any requirement that the declarant be confronted or available for cross-examination.
- When supporting a declarant’s credibility becomes permissible, including the strategic use of prior consistent statements and character evidence for truthfulness once an attack has occurred.
- How to distinguish impeaching the in-court witness who recounts the statement from impeaching the hearsay declarant, and why that distinction matters for answer-choice selection.
- Typical MBE traps involving multi-layer hearsay, co-conspirator and party-opponent admissions, and improper reliance on religious beliefs, collateral matters, or specific acts barred by Rule 608(b).

## **MBE Syllabus**

For the MBE, you are required to understand impeachment of hearsay declarants, with a focus on the following syllabus points:

- Identifying when an out-of-court statement triggers Rule 806.
- Distinguishing impeachment of an in-court witness from impeachment of the hearsay declarant.
- Knowing which impeachment techniques are available (prior inconsistent statements, bias, character for untruthfulness, defects in perception or memory, convictions).
- Recognizing limits on impeachment (e.g., religious beliefs, specific acts under Rule 608(b)).
- Understanding when and how credibility of the declarant may be supported once attacked.
- Applying these rules in multi-layer hearsay and co-conspirator/party-opponent admission scenarios.

## **Test Your Knowledge**

_Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision._

1. In a federal trial, a hearsay statement is admitted under an exception. May the opposing party impeach the credibility of the declarant?  
   a) Yes, using any evidence that would be admissible if the declarant had testified.  
   b) No, unless the declarant is present in court.  
   c) Yes, but only with evidence of bias.  
   d) No, unless the declarant is unavailable.

2. Which of the following is NOT a permissible method of impeaching a hearsay declarant under Rule 806?  
   a) Evidence of the declarant's prior conviction for dishonesty.  
   b) Evidence of the declarant's bias.  
   c) Evidence of the declarant's religious beliefs.  
   d) Evidence of a prior inconsistent statement by the declarant.

3. If a hearsay declarant's credibility is attacked with a prior inconsistent statement, may the party who introduced the hearsay statement offer evidence to support the declarant's credibility?  
   a) Yes, but only if the attack occurred first.  
   b) No, supporting evidence is never allowed.  
   c) Yes, at any time.  
   d) No, unless the declarant is a party.

## **Introduction**

Impeachment of hearsay declarants is a frequently tested topic on the MBE Evidence syllabus. When a hearsay statement is admitted, the person who made the statement is not on the witness stand and may not be subject to cross-examination. The Federal Rules of Evidence nevertheless treat that declarant’s credibility as just as important as any testifying witness’s credibility.

Rule 806 is the key provision. Once a hearsay statement (or certain statements that are defined as “not hearsay”) is admitted for its truth, any party may attack the declarant’s credibility—and, if it is attacked, may also support it—“as if” the declarant had testified as a witness at trial.

> **Key Term: Hearsay Declarant**  
> The person who made an out-of-court statement that is being received in evidence to prove the truth of what it asserts.
>
> **Key Term: Rule 806**  
> The Federal Rule of Evidence that allows the credibility of a hearsay declarant to be attacked and supported by any evidence that would be admissible for those purposes if the declarant had testified as a witness.
>
> **Key Term: Impeachment**  
> The process of attacking the credibility of a witness or declarant, typically by showing prior inconsistent statements, bias, poor perception or memory, criminal convictions, or a character for untruthfulness.

### What Statements Trigger Rule 806

Rule 806 applies when:

- A hearsay statement is admitted under a hearsay exception (e.g., excited utterance, present sense impression, business record, dying declaration, statement against interest, etc.); or
- A statement is admitted under an exclusion from hearsay that still treats the speaker as a “declarant,” including:
  - Certain prior statements of a testifying witness under Rule 801(d)(1) (prior inconsistent statements under oath, prior identifications, prior consistent statements); and
  - Statements of an opposing party under Rule 801(d)(2), including adoptive admissions, vicarious admissions, and co-conspirator statements.

In all of these situations, the speaker is a hearsay declarant for Rule 806 purposes, and their credibility is fair game.

By contrast, Rule 806 does **not** apply when the statement is admitted **not** for its truth (e.g., as a verbal act, to show effect on listener, or to prove state of mind). In that case, the reliability of the declarant’s assertion is not the reason it is being admitted, so credibility impeachment usually does not matter.

> **Exam Tip:** On MBE questions, always ask: “Is this statement being used for its truth and admitted under a hearsay exception or 801(d)? If yes, Rule 806 likely applies.”

### When Can a Hearsay Declarant Be Impeached

If a qualifying statement is admitted, Rule 806 permits impeachment **at any time** after admission. The declarant:

- Does **not** need to be present.
- Does **not** need to be subject to cross-examination.
- Does **not** need to have any prior notice that their credibility will be attacked.

Any party—**including the party who introduced the hearsay**—may attack or support the declarant’s credibility. This tracks Rule 607, which allows any party to impeach any witness, including their own.

### Methods of Impeachment

Rule 806 allows “any evidence that would be admissible for those purposes if the declarant had testified as a witness.” That means you look to the ordinary impeachment rules (Rules 607–609, 613, etc.) and ask whether the method would be permissible against a live witness.

The main impeachment methods that apply to hearsay declarants are:

- Prior inconsistent statements (Rule 613 and Rule 806).
- Evidence of bias, interest, or motive to lie.
- Evidence attacking capacity (perception, memory, or narration).
- Character for untruthfulness (Rule 608(a) reputation/opinion; Rule 609 convictions).

#### Prior Inconsistent Statements

> **Key Term: Prior Inconsistent Statement**  
> A statement made by a witness or declarant on another occasion that conflicts in a meaningful way with their current account.

You may show that the declarant said something different at another time. For hearsay declarants:

- You may use **extrinsic evidence** (another witness, a document, deposition transcript, recorded statement, etc.) of the inconsistent statement.
- **No preliminary showing is required.** Unlike Rule 613’s usual requirement that a testifying witness be given an opportunity to explain or deny, Rule 806 expressly allows the inconsistent statement in even if the declarant never had that chance and never testifies.

This is a classic MBE trap: answer choices that insist the declarant must be confronted with the prior statement are wrong under Rule 806.

#### Bias, Interest, or Motive

Evidence that the declarant had a reason to shade the truth—financial interest, personal animosity, plea deals, cooperation agreements, or other motives—may be used to impeach, just as with an in-court witness. Extrinsic evidence of bias is allowed so long as it satisfies general relevance and Rule 403.

#### Sensory or Mental Incapacity

If the declarant’s ability to see, hear, remember, or narrate accurately was impaired (e.g., intoxication, distance, darkness, mental illness, extreme stress), that defect can be shown to diminish the weight of the hearsay statement.

#### Character for Truthfulness and Convictions

> **Key Term: Character for Truthfulness**  
> A person’s general reputation or character trait for honesty or dishonesty, which may be proved by reputation or opinion testimony, and in limited ways by specific acts or convictions.

You may attack or support a hearsay declarant’s character for truthfulness to the same extent as for a live witness:

- **Reputation or opinion evidence** that the declarant is untruthful (Rule 608(a)), and, after such attack, reputation/opinion that the declarant is truthful.
- **Criminal convictions** under Rule 609:
  - Crimes involving dishonesty or false statement (e.g., perjury, fraud, embezzlement) are automatically admissible, subject to the 10-year limit.
  - Other felonies are admissible subject to the Rule 403 balancing (or “reverse 403” when the declarant is a criminal defendant).

> **Key Term: Extrinsic Evidence**  
> Evidence other than the witness’s or declarant’s own in-court testimony, such as documents, recordings, or testimony of other witnesses, used to prove facts—including impeachment facts.

Note the limitation from Rule 608(b): specific instances of conduct (e.g., lying on a job application) may be inquired into on **cross-examination** but may not be proved with extrinsic evidence solely to show untruthfulness. Because the hearsay declarant is not on the stand to be cross-examined, you generally cannot use Rule 608(b) specific-act impeachment against a purely out-of-court declarant.

### Methods that Are Not Allowed

Two important limitations carry over from the normal impeachment rules:

- **Religious beliefs or opinions** may not be used to attack or support a declarant’s credibility (Rule 610).
- **Collateral matters:** Rule 806 does not override the usual bar on using extrinsic evidence to contradict a witness on purely collateral points; the impeachment must be relevant to credibility or to a material issue.

### Supporting the Declarant's Credibility

Rule 806 parallels the rule for testifying witnesses: you may not “bolster” credibility until it has been attacked.

Once the hearsay declarant’s credibility has been attacked, the party who introduced the hearsay may support the declarant with the same tools used to rehabilitate live witnesses:

- Reputation or opinion testimony that the declarant has a truthful character (after an attack on character for truthfulness).
- Prior consistent statements (if they meet Rule 801(d)(1)(B)’s timing requirement—made before the alleged motive to fabricate arose).
- Evidence explaining away a supposed inconsistency or bias.

This support is available even if the declarant never appears in court.

### Declarant Later Testifies

If the declarant later takes the stand:

- The earlier impeachment evidence under Rule 806 remains in the record.
- The declarant may now be cross-examined, and further impeachment (including Rule 608(b) specific-act questions) becomes available.
- The party who offered the hearsay can try to rehabilitate the declarant directly, in addition to any Rule 806 support previously offered.

Importantly, Rule 806 impeachment does **not** render the hearsay statement inadmissible. It simply gives the jury reasons to discount its weight.

### Distinguishing Impeachment of the Witness and the Declarant

On the MBE, do not confuse:

- Impeaching the **in-court witness** who testifies, “Declarant said X,” and
- Impeaching the **declarant**, whose out-of-court statement is being repeated.

You can do both:

- Attack the witness’s credibility (e.g., bias, poor perception of what was said, prior inconsistent recounting of the statement).
- Attack the declarant’s credibility under Rule 806 (e.g., declarant’s prior inconsistent story, declarant’s fraud conviction, declarant’s bias).

The fact that the witness is honest does not insulate the declarant, and vice versa.

### Limitations and Special Points

- Rule 806 applies even if the declarant is unavailable or never appears in court.
- The declarant need not have been under oath when making the prior inconsistent statement used for impeachment.
- Impeachment evidence is still subject to Rule 403; highly prejudicial evidence may be excluded if its probative value is substantially outweighed by unfair prejudice, confusion, or waste of time.
- In criminal cases, the Confrontation Clause limits **admission** of testimonial hearsay against the accused; but once a hearsay statement is properly admitted, Rule 806 governs impeachment of that declarant like any other.

### **Worked Example 1.1**

A witness testifies that, according to a statement made by a third party (not in court), the defendant confessed to a crime. The statement is admitted as a statement against interest. The defense wants to introduce evidence that the third party has a prior conviction for fraud.

> **Answer:**  
> Yes. Under Rule 806, the defense may impeach the hearsay declarant (the third party) with evidence of a prior conviction for dishonesty, just as if the third party had testified as a witness. Rule 609 permits impeachment with crimes involving dishonesty; Rule 806 makes that method available against the hearsay declarant.

### **Worked Example 1.2**

In a contract dispute, the plaintiff introduces a business record containing a statement by an employee (not present in court) about the defendant's performance. The statement is admitted as a business record. The defense wants to show that the employee was biased against the defendant due to a personal grudge.

> **Answer:**  
> Yes. The employee is a hearsay declarant whose statement has been admitted for its truth via the business-records exception. Under Rule 806, the defense may introduce evidence of the employee’s bias (e.g., evidence of a prior falling out with the defendant) to impeach the declarant’s credibility, subject to Rule 403.

### **Worked Example 1.3**

A police officer testifies that, during an excited utterance, a bystander yelled, “The driver in the red truck ran the light!” The statement is admitted as an excited utterance. The defendant offers a later statement from the same bystander, made in a calm interview the next day, saying, “Actually, I’m not sure which car ran the light.”

> **Answer:**  
> The later statement is admissible as a prior inconsistent statement of the hearsay declarant under Rule 806. It may be proved with extrinsic evidence (e.g., the officer who took the later statement, or a recording) even though the bystander is not in court and was never given a chance to explain or deny the inconsistency.

### **Worked Example 1.4**

In a drug conspiracy prosecution, the government introduces a co-conspirator’s statement under Rule 801(d)(2)(E): “We’re delivering the drugs to Dan tonight.” The co-conspirator does not testify. The defense seeks to introduce evidence that the co-conspirator received a reduced sentence on unrelated charges in exchange for cooperation against the defendant.

> **Answer:**  
> The evidence is admissible. A co-conspirator whose statement is admitted under Rule 801(d)(2)(E) is a hearsay declarant for Rule 806 purposes. The cooperation agreement tends to show bias and a motive to implicate the defendant, so it is a proper method of impeachment.

### **Worked Example 1.5**

A witness testifies that the victim told her, “I saw the defendant’s face; he attacked me.” The statement is admitted as a present sense impression. The defense wants to introduce testimony that the victim was severely intoxicated at the time of the attack.

> **Answer:**  
> This is permissible impeachment of the hearsay declarant. The victim’s intoxication bears on sensory capacity and reliability, so under Rule 806 the defense may introduce evidence of intoxication to suggest the declarant’s identification was unreliable.

### **Worked Example 1.6**

In a fraud case, a hearsay statement by a declarant is admitted under a hearsay exception. The opposing party offers evidence that the declarant is an atheist and argues that this shows the declarant is untrustworthy.

> **Answer:**  
> The evidence is inadmissible. Rule 610 prohibits the use of a witness’s (or declarant’s) religious beliefs or opinions to attack or support credibility. Rule 806 does not override this limitation, so religious (or anti-religious) beliefs are off-limits as impeachment of a hearsay declarant.

### **Exam Warning**

Evidence rules for impeachment of hearsay declarants are tested with subtle fact patterns. Remember:

- Rule 806 applies even if the declarant is unavailable or never testifies.
- The declarant does **not** have to be confronted with prior inconsistent statements.
- Any party may impeach or support the declarant’s credibility once the statement is admitted.

Do not assume that impeachment is limited to the witness on the stand.

### **Revision Tip**

When you see a hearsay statement admitted for its truth, ask:

1. “If this person were actually on the stand, could this proposed evidence be used to impeach them?”
2. “If yes, do any special limits apply (e.g., no extrinsic evidence of specific acts, no religious beliefs)?”

If the answer to (1) is yes and no special limit applies, the same method can be used for the hearsay declarant under Rule 806.

## **Key Point Checklist**

_This article has covered the following key knowledge points:_

- Rule 806 allows the credibility of a hearsay declarant to be attacked and supported as if the declarant had testified.
- The rule applies to hearsay admitted under exceptions and to many statements excluded from hearsay under Rule 801(d).
- Any party may attack or support a hearsay declarant’s credibility, including the party who introduced the statement.
- Available impeachment methods include prior inconsistent statements (with extrinsic proof and no confrontation requirement), bias, incapacity, and character for untruthfulness (reputation/opinion and qualifying convictions).
- Specific acts of dishonesty under Rule 608(b) may not be proved by extrinsic evidence and generally cannot be used against a purely out-of-court declarant.
- Evidence of religious beliefs or opinions is not admissible to attack or support credibility.
- Once the declarant’s credibility is attacked, the proponent may offer rehabilitation evidence, such as prior consistent statements and character evidence for truthfulness.
- Impeachment of the hearsay declarant is distinct from, and in addition to, impeachment of the in-court witness who repeats the statement.

## **Key Terms and Concepts**

- Hearsay Declarant
- Rule 806
- Impeachment
- Prior Inconsistent Statement
- Extrinsic Evidence
- Character for Truthfulness

Presentation of evidence - Impeachment of hearsay declarants