Learning Outcomes
After reading this article, you will understand when and how a hearsay declarant may be impeached in MBE-style evidence questions. You will be able to identify the rules governing impeachment of out-of-court declarants, apply Rule 806, and distinguish between impeachment of witnesses and impeachment of hearsay declarants. You will also be able to select the correct method of impeachment in MBE scenarios.
MBE Syllabus
For the MBE, you are required to understand the rules and procedures for impeaching hearsay declarants. This includes knowing when a hearsay declarant may be attacked, what evidence is admissible for this purpose, and how these rules differ from impeachment of in-court witnesses. You should be prepared to:
- Recognize when a hearsay declarant's credibility may be impeached under Rule 806.
- Identify the types of evidence admissible to attack or support a hearsay declarant's credibility.
- Distinguish between impeachment of a testifying witness and impeachment of a hearsay declarant.
- Apply the rules to MBE-style questions involving prior inconsistent statements, bias, or character for untruthfulness.
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.
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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.
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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.
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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 declarant is not present for cross-examination, but their credibility may still be attacked. Rule 806 of the Federal Rules of Evidence allows parties to impeach the credibility of a hearsay declarant as if the declarant had testified as a witness. This article explains when and how impeachment of hearsay declarants is permitted, the methods available, and how these rules are tested on the MBE.
Key Term: Hearsay Declarant The person who made an out-of-court statement that is admitted into evidence under a hearsay exception or exclusion.
When Can a Hearsay Declarant Be Impeached?
If a hearsay statement or a statement defined as non-hearsay is admitted into evidence, Rule 806 allows any party to attack (or support) the declarant's credibility. This is true even if the declarant does not testify and is not present in court.
Key Term: Rule 806 The Federal Rule of Evidence that permits impeachment of the credibility of a hearsay declarant as if the declarant had testified as a witness.
Methods of Impeachment
The same methods used to impeach a testifying witness may be used to impeach a hearsay declarant. These include:
- Prior inconsistent statements.
- Evidence of bias or interest.
- Evidence of character for untruthfulness (reputation, opinion, or certain convictions).
- Evidence of incapacity (e.g., lack of perception or memory).
Key Term: Impeachment The process of attacking the credibility of a witness or declarant by showing bias, prior inconsistent statements, untruthfulness, or incapacity.
Supporting the Declarant's Credibility
If a party attacks the credibility of a hearsay declarant, the party who introduced the hearsay statement may offer evidence to support the declarant's credibility, but only if the attack has occurred first. This is similar to the rule for supporting a testifying witness.
Limitations and Special Points
- Evidence of a declarant's religious beliefs or opinions is not admissible to attack or support credibility.
- Extrinsic evidence may be used to impeach a hearsay declarant, subject to the same rules as for witnesses.
- The declarant does not have to be present or subject to cross-examination for impeachment to occur.
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 under a hearsay exception. The defense wants to introduce evidence that the third party has a prior conviction for fraud. Is this allowed?
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.
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 defense wants to show that the employee was biased against the defendant due to a personal grudge. Is this permissible?
Answer: Yes. The defense may introduce evidence of the employee's bias to impeach the credibility of the hearsay declarant under Rule 806.
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. Do not assume impeachment is limited to in-court witnesses.
Revision Tip
On the MBE, always ask: "If this statement had been made by a witness in court, could it be impeached in this way?" If yes, the same method can be used for a hearsay declarant.
Key Point Checklist
This article has covered the following key knowledge points:
- Rule 806 allows impeachment of hearsay declarants as if they had testified.
- Any party may attack or support a hearsay declarant's credibility.
- Methods of impeachment include prior inconsistent statements, bias, character for untruthfulness, and incapacity.
- Supporting evidence is allowed only after an attack on credibility.
- The declarant need not be present or subject to cross-examination for impeachment.
- Evidence of religious beliefs is not admissible to attack or support credibility.
Key Terms and Concepts
- Hearsay Declarant
- Rule 806
- Impeachment
