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Univ. of South Carolina School of Law

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Monday, June 10, 2013

Liar, Liar: Why Does Rule 806 Preclude Impeachment of a Rule 801(d)(2)(B) Declarant?

Federal Rule of Evidence 801(d)(2) provides that

A statement that meets the following conditions is not hearsay:....

The statement is offered against an opposing party and:

(A) was made by the party in an individual or representative capacity;

(B) is one the party manifested that it adopted or believed to be true;

(C) was made by a person whom the party authorized to make a statement on the subject;

(D) was made by the party’s agent or employee on a matter within the scope of that relationship and while it existed; or

(E) was made by the party’s coconspirator during and in furtherance of the conspiracy.

Meanwhile, Federal Rule of Evidence 806 provides that

When a hearsay statement — or a statement described in Rule 801(d)(2)(C), (D), or (E) — has been admitted in 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. The court may admit evidence of the declarant’s inconsistent statement or conduct, regardless of when it occurred or whether the declarant had an opportunity to explain or deny it. If the party against whom the statement was admitted calls the declarant as a witness, the party may examine the declarant on the statement as if on cross-examination.

Therefore, when a declarant makes a statement that a party adopts under Federal Rule of Evidence 801(d)(2)(B), the party cannot impach the declarant at trial if for whatever reason the declarant is not a witness at trial. I disagree with this limitation of Federal Rule of Evidence 806.

First, let's look at a hypothetical. Dan, Carl, and Fred are in a basement. Carl tells Fred, "Dan just shot Vince." Fred looks at Dan, and Dan (a) says nothing; (b) shrugs his shoulders; or (c) says, "I never liked Vince." In all three cases (and certainly in the third case), Dan has adopted Carl's statement, making it admissible under Federal Rule of Evidence 801(d)(2)(B).

Now, let's say that Dan is charged with Vince's murder and Carl has passed away before Dan's trial. The prosecution plans to introduce Carl's statement under Federal Rule of Evidence 801(d)(2)(B), and Dan wants to impeach Carl under Federal Rule of Evidence 806. And let's say that Dan has plenty of impeachment fodder: Carl had a prior conviction for perjury. Ten of Carl's former co-workers are willing to testify that Carl had a reputation in the workplace for being a liar, and ten former neighbors are willing to testify that they found Carl to be a liar.

Dan will be forestalled in his effort to impeach Carl under Federal Rule of Evidence 806. That Rule would allow Dan to impeach the declarant of a statement described in Rule 801(d)(2)(C), (D), or (E), but it would not allow him to impeach the declarant of a statement described in Rule 801(d)(2)(B) [Carl]. According to the Advisory Committee's Note to Federal Rule of Evidence 806

The committee considered it unnecessary to include statements contained in rule 801(d)(2)(A) and (B)—the statement by the party-opponent himself or the statement of which he has manifested his adoption—because the credibility of the party-opponent is always subject to an attack on his credibility.

But what about Carl's credibility? It seems to me that a defendant like Dan would want to make a two pronged attack on Carl's statement. First, Dan would want to try to explain to the jury why he did not rebut Carl's statement. There could be many reasons for this. Dan could claim that he was covering for Carl, who was the actual murderer. Maybe Dan, Carl, and Fred were in a gang, and Dan was trying to look tough to Fred, who was his superior. You could think of various and sundry reasons why Dan did not rebut Carl's statement despite it being false. And, of course, Dan could give these explanations on the witness stand, which is what the Advisory Committee's Note acknowledges.

Second, Dan would want to impeach Carl to show that his statement regarding Dan shooting Vince was not worthy of belief. Under Federal Rule of Evidence 806, Dan could not engage in this impeachment. On one level, I see the reason why Dan can't impeach Carl. Basically, the Rule is saying that Dan can't complain about the inability to impeach Carl's statement when he adopted it. On the other hand, wouldn't such impeachment lie at the heart of Dan's defense.

Allow me to draw an analogue to the Bruton doctrine and interlocking confessions. Under the Bruton doctrine, at a joint jury trial, the prosecution cannot introduce the confession of a co-defendant that facially incriminates another defendant unless the co-defendant testifies at trial. The admission of such a confession is said to violate the Confrontation Clause because the co-defendant is in effect a witness against the defendant.

But what happens if the defendant himself gave a confession that corroborated/interlocked with the co-defendant's confession? In Cruz v. New York, 481 U.S. 186 (1987), the government claimed that the Bruton doctrine did not apply under these circumstances because the defendant devastated his own case through his confession, meaning that the co-defendant's confession was insufficiently harmful/prejudicial to trigger application of the Confrontation Clause. The Supreme Court, however, found that the opposite was true:

In fact, it seems to us that "interlocking" bears a positively inverse relationship to devastation. A codefendant's confession will be relatively harmless if the incriminating story it tells is different from that which the defendant himself is alleged to have told, but enormously damaging if it confirms, in all essential respects, the defendant's alleged confession. It might be otherwise if the defendant were standing by his confession, in which case it could be said that the codefendant's confession does no more than support the defendant's very own case. But in the real world of criminal litigation, the defendant is seeking to avoid his confession—on the ground that it was not accurately reported, or that it was not really true when made. In the present case, for example, petitioner sought to establish that Norberto had a motive for falsely reporting a confession that never in fact occurred. In such circumstances a codefendant's confession that corroborates the defendant's confession significantly harms the defendant's case, whereas one that is positively incompatible gives credence to the defendant's assertion that his own alleged confession was nonexistent or false

Shouldn't similar logic apply under Federal Rule of Evidence 801(d)(2)(B) and Federal Rule of Evidence 806? If the defendant were standing by his adoption of the declarant's statement, Rule 806's prohibition on impeaching a Rule 801(d)(2)(B) declarant because, as the Advisory Committee noted, "the credibility of the party-opponent is always subject to an attack on his credibility." But the defendant's defense at trial pretty much has to be that his adoption was not really true when made. The key question at trial, then, is whether the declarant's statement incriminating the defendant was true. As in Cruz, the declarant's Rule 801(d)(2)(B) statement significantly harms the defendant, and I can't think of a good reason to preclude the defendant from impeaching such a declarant.

-CM

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