EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Wednesday, June 19, 2013

Blame Game: Revisiting The Issue of Impeaching the Declarant of an Adoptive Admission

Last week, I did a series of posts about Federal Rule of Evidence 806 and Federal Rule of Evidence 801(d)(2)(B)Rule 806 allows for the impeachment of hearsay declarants even if they don't testify at trial, but it seemingly precludes impeachment of the declarant of an adoptive admission under Rule 801(d)(2)(B). In my posts last week, I argued against such a reading of Rule 806, and I've finally found a case that supports what I've been saying: Lewis v. Gubanski, 905 S.W.2d 847 (Ark.App. 1995).

In Gubanski, an

accident occurred in September 1991, and the case was tried in August of 1993. At the time of the accident the appellant was driving one of the vehicles, and her husband, Earl Medley, was a passenger in that vehicle. The appellee Rebecca Gubanski was driving another vehicle, and the suit was filed by her against the appellant and the driver and the owner of the third vehicle. The jury found for Gubanski against the appellant but not against the driver or owner of the third vehicle. At the time of the trial the appellant and her husband were divorced, and he was living in another state and was not present at the trial. The appellees, however, offered the testimony of John Goodsell, a truck driver who was present at the scene of the accident. They sought to elicit from Goodsell testimony that shortly after the accident he talked with Earl Medley in the appellant's presence, and that Medley said the accident was the appellant's fault. This testimony was offered as an adoptive admission under Arkansas Rule of Evidence 801(d)(2)(ii).

Thereafter, the appellant sought to impeach her husband with an inconsistent statement that he made to an insurance investigator, in which he said that the appellant was not at fault in the accident. The trial court, however, precluded such impeachment, noting that Arkansas Rule of Evidence 806 precludes the impeachment of the declarant of an adoptive admission.

The Supreme Court of Arkansas disagreed, concluding:

Let us examine, however, what that would mean in the instant case. It would mean that a bystander could testify that the appellant's husband made a statement that appellant was at fault, and that the appellant did not deny the statement or object to it; however, if her husband had made a statement to someone else that he did not say what the bystander said the husband said—the appellant could not show that her husband had made the inconsistent statement. In other words, she is tarred with the "hearsay" statement of what her husband said because the rules of evidence will not let her use a "hearsay" statement of what her husband said in her favor to rebut the one used against her. Surely this is not what is contemplated when Arkansas and Federal Rule of Evidence 102 both provide that: "These rules shall be constructed to secure fairness in administration, elimination of unjustifiable expense and delay, and promotion of growth and development of the law of evidence, to the end that the truth may be ascertained and proceedings justly determined."



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