Wednesday, May 25, 2011
I was recently posed an interesting question. Federal Rule of Evidence 806 provides that
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.
Meanwhile, Federal Rule of Evidence 804(b)(6) provides an exception to the rule against hearsay (and the Confrontation Clause) for
A statement offered against a party that has engaged or acquiesced in wrongdoing that was intended to, and did, procure the unavailability of the declarant as a witness.
So, assume that a court finds that a defendant engaged in forfeiture by wrongdoing and allows the prosecution to admit the unavailable declarant's hearsay statement(s) against the defendant. Then, assume that the defendant wants to impeach the declarant pursuant to Federal Rule of Evidence 806 or a state counterpart. Has the defendant also forfeited his right to impeach the declarant like he forfeited his hearsay and Confrontation Clause objections?My initial inclination was to say "no," and, in support, I found Sohail v. State, 264 S.W.3d 251 (Tex.App.-Houston [1 Dist.] 2008), in which a Texas trial court permitted the prosecution to admit statements made by the complainant to police and her parents under the doctrine of forfeiture by wrongdoing and precluded the defendant from impeaching the complainant/declarant. In finding that the trial court committed error, the Court of Appeals of Texas concluded that
In the present case, complainant did not testify at the guilt-innocence stage of the trial, but her statements to police and to her parents were admissible out-of-court statements. Appellant is correct that he had a right to impeach complainant's credibility through other evidence, including hearsay. See TEX.R.EVID. 806....The trial court excluded testimony by appellant's sister, to whom complainant said that the assault was an accident. This inconsistent statement by complainant reflects on complainant's credibility and would have been admissible had complainant testified as a witness....Thus it was error for the trial court to exclude appellant's impeachment evidence.
On the other hand, you have the opinion of the Court of Appeals of New York in People v. Bosier, 847 N.E.2d 1158 (N.Y. 2006). In Bosier, a prospective witness against a defendant testified at a first grand jury proceeding and a second grand jury proceeding. At trial, the court applied the doctrine of forfeiture by wrongdoing (forfeiture by misconduct in New York) and allowed the prosecution to introduce the (now unavailable) witness' testimony from the second grand jury proceeding against the defendant. The defendant then sought to impeach the declarant through his testimony at the first grand jury proceeding, which contradicted some of his testimony from the second proceeding, but the trial court precluded such impeachment. The Court of Appeals of New York ultimately affirmed, concluding that
The trial judge has discretion to permit such impeachment where there is a possibility that, if it is not allowed, the jury will be misled into giving too much weight to the statement offered by the prosecution. But such impeachment need not always be allowed. Where impeachment is permitted, the defendant, in direct contravention of the most basic legal principles and the policy objectives of Geraci, may benefit from his or her own wrongful conduct because the prosecution will have no opportunity to rehabilitate the witness by clarifying any unclear or inconsistent testimony proffered by the defendant. Here, where the inconsistency defendant relied on did not go to the heart of the prosecution's case and might well have been credibly explained if the witness had been present, it was not an abuse of discretion to exclude the impeaching evidence.
So, what does readers think? When a defendant forfeits his right to confront a hearsay declarant, does he also forfeit his right to impeach him? As I said, my first inclination was to say "no," but I sort of see the logic of the Court of Appeals of New York. In cases of prior inconsistent statements, it is because of the defendant's wrongdoing that the prosecution can't rehabilitate the declarant by having him explain the differences between the two statements. In cases of prior conviction impeachment, it is because of the defendant's wrongdoing that the prosecution can't rehabilitate the declarant by having him testify that he's a changed man. Etc., etc. Is that enough to preclude (at least in some cases) impeachment by the wrongdoing defendant?