Transcript IMPEACHMENT OF HEARSAY DECLARANT

NON HEARSAY
FRE 801(d) Non Hearsay by definition
Rule 801(d)(1) Prior Statement by Witness is not
hearsay If declarant testifies and is subject to
cross examination and the statement is:
(A) inconsistent with the declarant’s testimony, and was
given under oath at another proceeding; or
(B) consistent with the declarant’s testimony and is offered
to rebut an express or implied charge against the
declarant of recent fabrication, improper influence or
motive; or
(C) one of identification of a person made after perceiving
the person.
Cf. Evid. Code Hearsay
Exceptions
1.
2.
3.
4.
5.
6.
7.
1220 statements of a party
1221 adoptive admission
1222 authorized admission
1223 admission of a co-conspirator
1235 inconsistent statement (in
compliance with 770)
1236 consistent statement (in
compliance with 791)
1238 prior identification
IMPEACHMENT OF HEARSAY
DECLARANT
• FRE 806
• Evid. Code sec. 1202
Rule 806: Attacking and Supporting
Credibility of Declarant
• When a hearsay statement, or a statement defined in
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.
Evid. Code 1202:Credibility of Hearsay
Declarant
• Evidence of a statement or other conduct by a declarant
that is inconsistent with a statement by such declarant
received in evidence as hearsay evidence is not
inadmissible for the purpose of attacking the credibility of
the declarant though he is not given and has not had an
opportunity to explain or to deny such inconsistent
statement or other conduct. Any other evidence offered
to attack or support the credibility of the declarant is
admissible if it would have been admissible had the
declarant been a witness at the hearing. For the
purposes of this section, the deponent of a deposition
taken in the action in which it is offered shall be deemed
to be a hearsay declarant.
IMPEACHMENT OF HEARSAY
DECLARANT (cont)
• Inconsistent statements
– Prior or subsequent (fairness to opponent)
– Admissible to impeach but not for truth
• Exception: Evid. Code sec. 1294
• Proponent of hearsay loses opportunity to have
declarant explain inconsistency
• Cf FRE 613(a) & (b); 801(d)(1); Evid. Code sec
1235
• Prior convictions
Prior Inconsistent Statements:FRE
• FRE 613 -- can use to impeach, but not
for truth unless statement fits w/i another
exception;
• FRE 801 (d)(1) – comes in for truth b/c
non-hearsay
• FRE 806 – comes in to impeach hearsay
declarant; not for the truth of the statement
but for credibility of declarant
Prior Inconsistent Statements:
Evid. Code
• Sec. 1202 – comes in to impeach hearsay
declarant; not for the truth of the statement but
for credibility of declarant
• Sec. 1235 – comes in for truth if offered in
compliance with sec. 770 (opportunity to explain
or deny or subject to recall)
• Sec. 1294 – inconsistent statement at prior
hearing or trial in same case comes in for truth if
declarant unavailable
Hypo
• Witness describes on-viewing murder to
police. Witness testifies at preliminary
hearing that the police told her what to say
when in truth she saw nothing. She is
impeached with her statement to the
police. Now we are at trial.
SCENARIO # 1
• Scenario #1: witness is unavailable, apply FRE
– FRE 613 -- can use to impeach, but not for truth
unless statement fits w/i another exception;
– FRE 801 (d)(1) – comes in for truth b/c non-hearsay
– FRE 806 – comes in to impeach hearsay declarant;
not for the truth of the statement but for credibility of
declarant
SCENARIO # 2
• Scenario #2: witness is unavailable, apply Evid. Code
– Sec. 1202 – comes in to impeach hearsay declarant; not for the
truth of the statement but for credibility of declarant
– Sec. 1235 – comes in for truth if offered in compliance with sec.
770 (opportunity to explain or deny or subject to recall)
– Sec. 1294 – inconsistent statement at prior hearing or trial in
same case comes in for truth if declarant unavailable
SCENARIO # 3
• Scenario #3: witness is available, apply
FRE
– FRE 613 -- can use to impeach, but not for
truth unless statement fits w/i another
exception;
– FRE 801 (d)(1) – comes in for truth b/c nonhearsay
– FRE 806 – comes in to impeach hearsay
declarant; not for the truth of the statement
but for credibility of declarant
SCENARIO # 4
• Scenario #4: witness is available, apply Evid. Code
– Sec. 1202 – comes in to impeach hearsay declarant; not for the
truth of the statement but for credibility of declarant
– Sec. 1235 – comes in for truth if offered in compliance with sec.
770 (opportunity to explain or deny or subject to recall)
– Sec. 1294 – inconsistent statement at prior hearing or trial in
same case comes in for truth if declarant unavailable