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?

As noted by my recent posts, Federal Rule of Evidence 806 precludes impeachment of a Rule 801(d)(2)(B) declarant. So, what does a case look like in which a party is trying to impeach a Rule 801(d)(2)(B) declarant under Federal Rule of Evidence 806?

Well, let's start with a few assumptions. First, because the case has actually gone to trial, the defendant is claiming that he is innocent. Second, it seems safe to assume that the defendant has not himself confessed to the crime. Again, the defendant is protesting his innocence, which would be pretty difficult to do if there were both a traditional confession and an adoptive admission under Rule 801(d)(2)(B). Third, if the defendant is trying to impeach a Rule 801(d)(2)(B) declarant, it means that the prosecution has laid the proper foundation for admission of the adoptive admission. Therefore, while the defendant could still try to claim that he did not adopt the declarant's statement, his most viable argument is likely to be that his adoption of the declarant's statement was not genuine. Fourth, if the defendant is trying to impeach the Rule 801(d)(2)(B) declarant under Federal Rule of Evidence 806, this means that the declarant is not testifying at trial and subjecting himself to the crucible of cross-examation. In other words, the jury has no reason to doubt him.  

Let's return to our previous 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 introduces Carl's statement under Federal Rule of Evidence 801(d)(2)(B).

As noted, the Dan's best strategy is likely to engage in a two=pronged attack on Carl's statement. The first part of the attack would be for Dan to claim that his adoption of Carl's statement was not genuine. Dan could claim, for instance, that he was covering for Al, who actually committed the murder. This line of attack could accomplish one thing: making the jury believe that Dan did not adopt Carl's statement.

This line of attack, however, could not accomplish another thing: making the jury belive that Carl is dishonest and that his statement is not worthy of belief. This then takes us to Dan's second line of attack, which is to call into question Carl's statement by impeaching Carl. Unfortunately for Dan, however, Federal Rule of Evidence 806 precludes such impeachment.

My question today is whether application of Federal Rule of Evidence 806 under these circumstances violates the right to present a defense. Let's look at the three factor test:

The first factor is obvious. Of course application of Federal Rule of Evidence 806 under these circumstances prevents Dan from presenting evidence in his favor. The second factor could easily be satisfied as well. What is "material" under the right to present a defense is basically what's material for purposes of the Brady doctrine: evidence which creates a reasonable probability of a different outcome at trial.

It is well established that impeachment evidence concerning a key witness for the prosecution can qualify as "material" for purposes of the Brady doctrine. It is easy to see the same analysis applying here. Cetainly, there could be strong eyewitness and/or forensic evidence linking Dan to the murder. But it is also easy to envision a case in which the prosecution's case is built entirly on weak circumstantial evidence, with Carl's statement being the key piece of evidence admitted against Dan. In such a case, it is easy to see how impeachment evidence concerning Carl could be material.

Third, we come to my central issue with Federal Rule of Evidence 806's prohibition om impeaching Rule 801(d)(2)(B) declarant: What is the purpose served by the limitation? Is the point that the defendant, by adopting the declarant's statement, has devastated his case, making the impeachment pointless? This was the rationale rejected by the Supreme Court in Cruz v. New York in the context of the Bruton doctrine.

Is the point that the declarant's credibility is too collateral to the central issues at trial, meaning that the impeachment would lead the jurors too far astray of the issue of Dan's guilt. This is hard to see given that the declarant's statement in tha adoptive admission context will always be accusing the defendant of some crime of wrongdoing. 

I can't really think of any legitimate purpose served by Rule 806's prohibition on impeaching Rule 801(d)(2)(B) declarants. As such, I think that there is a good argument that applying the prohibition is "arbitrary or disproportionate to any legitimate evidentiary or procedural purpose."

-CM