Friday, March 25, 2011
When a hearsay statement, or a statement defined in Evid.R. 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 that would be admissible for those purposes if declarant had testified as a witness.
As Rule 806 and the recent opinion of the Court of Appeals of Ohio, Tenth District, in Columbus v. Montgomery, 2011 WL 983080 (Ohio App. 10 Dist. 2011), make clear, however, it only allows for the impeachment of a hearsay declarant, meaning that a party cannot impeach the credibility of a declarant whose statement is not being offered at trial to prove the truth of the matter asserted.
In Montgomery, Cloris Montgomery was convicted of obstructing official business. The business that Montgomery allegedly obstructed was the police department's investigation into alleged acts of child abuse. The police department began investigating those acts based upon statements made by Cradecia Williams, who did not testify at Montgomery's trial. A police officer did, however, testify to Williams' statements.
After she was convicted, Montgomery appealed, claiming, inter alia, that the trial court erred by precluding her from impeaching Williams pursuant to Ohio Rule of Evidence 806(A) through her prior conviction for forgery. The Court of Appeals of Ohio, Tenth District, disagreed, concluding that Williams' statements were not introduced to prove the truth of the matter asserted but instead to explain an officer's conduct while investigating a crime. Therefore, WIlliams was not a hearsay declarant and could not have been impeached under Ohio Rule of Evidence 806(A).