Another Possibly Overlooked Evidence Rule: Impeaching Those Not Present

October 28, 2014
By Hanging Out with Carl Gunn


  • Rule 806 of the Federal Rules of Evidence allows a party to impeach a hearsay statement just as if the hearsay declarant had testified in person.
  • One example of a way to use this rule is to offer a coconspirator’s inconsistent statement during a police interrogation after arrest to impeach an earlier statement introduced by the government as a coconspirator’s admission; another example might be to call character witnesses or introduce prior convictions to impeach the coconspirator.
  • The point to remember is to think about impeachment of a hearsay declarant when a hearsay statement is introduced just as quickly as you think about impeachment of a live witness when the live witness’s testimony is presented.


Another presentation at the Seattle Federal Public Defender CLE I attended last month was a presentation by Professor Barbara Bergman of the University of New Mexico Law School that focused on creative uses of particular rules of evidence. One of the rules she talked about that I think many, if not most, of us overlook was Rule 806. That rule, as she reminded us, extends the rules of impeachment and allows impeachment of a hearsay declarant even when the declarant doesn’t testify in person. The rule provides:

When a hearsay statement – or a statement described in Rule 801(d)(2)(C), (D), or (E) – has been admitted into evidence, the declarant’s credibility may be attacked, and then supported, by any evidence that would be admissible for those purposes if the declarant had testified as a witness.

There are probably a multitude of different scenarios in which one could use this rule – and I’m not sure which would actually be the most common – but one way to use the rule is to reduce the damage of a coconspirator’s statement admitted under Rule 801(d)(2)(E). It struck me that there are two common – or at least not uncommon – scenarios in which we could use Rule 806 to counter damaging coconspirator hearsay admitted under Rule 801(d)(2)(E).

First, consider a coconspirator’s damaging statement about your client’s role made during negotiations and/or some other interaction with an undercover agent or confidential informant. Then consider the possibility – certainly not an unheard of one – of the coconspirator disavowing those statements about your client’s role in a post-arrest interrogation when he knows the people he’s talking to are government agents. To give an example, consider a coconspirator who tells the undercover agent or the confidential informant during negotiations that your client is a big-time drug dealer who sells kilos and kilos of cocaine every week, but states after being arrested that he was just puffing and made up stories about your client because he needed to portray someone as a solid source of supply. The second statement, in the post-arrest interrogation, would by itself be inadmissible hearsay. But it should be admissible as a prior inconsistent statement of the hearsay declarant under Rule 806 if the government introduces the first statement as a coconspirator admission.

Another example is the possibility of using Rule 608(a) and/or Rule 609 to impeach a coconspirator’s admission. Rule 608(a) is the rule that allows a witness to be impeached by testimony about the witness’s reputation for truthfulness or untruthfulness, and Rule 609 – which unfortunately gets used against us more than for us – allows impeachment with prior convictions. If the government introduces the coconspirator’s admission, Rule 806 allows you to use Rule 608(a) and/or Rule 609 to introduce testimony about the coconspirator’s reputation for untruthfulness and/or his prior convictions. There are probably some cases in which this won’t be worth it because dirtying up the coconspirator will dirty up your client through your client’s association with the coconspirator, but there are other cases where it might help. Consider, for instance, calling witnesses who will testify that the coconspirator is known for telling tall tales and makes up all sorts of stories when its serves his purpose.

This may have benefits beyond the substance of the evidence, moreover. Barbara Bergman noted in her presentation that this threat to dirty up the coconspirator through Rule 806 could also create a ground for severance if the coconspirator is going to trial as well. And she backed up that idea with the case of United States v. Perez, 299 F. Supp.2d 38 (D. Conn. 2004), where severance was in fact granted on this ground.


These are just a couple of example of ways we could potentially use Rule 806. There are no doubt a host of others. The thing to remember is that you should think about impeachment whenever there’s some adverse hearsay introduced just as quickly as you think of it when a witness gives adverse testimony in person. I think we sometimes forget to do that.