EvidenceProf Blog

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

Friday, June 14, 2013

Your Best Defense: Should the Right to Present a Defense Allow Defendants to Impeach Rule 801(d)(2)(B) Declarants?

In Crane v. Kentucky, the Supreme Court found that:

"[w]hether rooted directly in the Due Process Clause of the Fourteenth Amendment or in the Compulsory Process or Confrontation Clauses of the Sixth Amendment, the Constitution guarantees criminal defendants a meaningful opportunity to present a complete defense."

As I noted in my article, Dismissed with Prejudice: Why Application of the Anti-Jury Impeachment Rule to Allegations of Racial, Religious, or Other Bias Violates the Right to Present a Defense, 61 Baylor L. Rev. 872 (2009), courts generally require defendants to prove three elements to establish that application of a rule of evidence violated or would violate the right to present a defense:

First, that the defendant was or would be deprived "of the opportunity to present evidence in his favor;" second, the excluded evidence was or would be "material and favorable to his defense;" and third, the deprivation was or would be "arbitrary or disproportionate to any legitimate evidentiary or procedural purpose."

So, does the right to present a defense provide relief to a defendant who wants to impeach a Rule 801(d)(2)(B) declarant?

Continue reading

June 14, 2013 | Permalink | Comments (0) | TrackBack (0)

Wednesday, June 12, 2013

Mouthguard: Why Does Rule 806 Apply to Rule 801(d)(2)(C) But Not Rule 801(d)(2)(B)?

Following up on Monday's post, in today's post, I want consider the impeachment implications raised by Federal Rule of Evidence 801(d)(2)(B) and Federal Rule of Evidence 801(d)(2)(C). My question is: Why can a party impeach an absent Rule 801(d)(2)(C) declarant but not a Rule 801(d)(2)(B) declarant.

Continue reading

June 12, 2013 | Permalink | Comments (0) | TrackBack (0)

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.

Continue reading

June 10, 2013 | Permalink | Comments (0) | TrackBack (0)