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60. Is the witness's testimony admissible?
At a woman's trial for bank robbery, the prosecutor has called a private security guard for the bank who has testified, without objection, that while he was on a coffee break, the woman's brother rushed up to him and said, «Come quickly! My sister is robbing the bank!» The woman now seeks to call a witness to testify that the brother later told the witness, «I got my sister into trouble by telling a security guard that she was robbing the bank, but now I realize I was mistaken.» The brother is unavailable to testify.
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When a witness tells a story at trial, the opposing lawyer will often confront him with a previous out-of-court statement, in which the witness told a different story. Such an impeachment use of an out-of-court statement is not hearsay, because the out-of-court statement is introduced not for the purpose of showing that it contains the truth, but rather, to suggest that a witness who changes his story is not credible.
FRE 806 states: «When a hearsay statement. .. 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.»
D is correct. The witness's testimony regarding the brother's later statement is admissible for the sole purpose of impeaching the brother's credibility as to the original hearsay statement made to the security guard. Ordinarily, a witness who is impeached with a prior inconsistent statement must be given an opportunity to explain or deny the statement. That is not possible, however, when a hearsay declarant is not produced at trial. Therefore, FRE 806 provides that the ordinary requirement of a «fair opportunity to explain or deny» is not applicable to hearsay declarants who are being impeached with prior inconsistent statements. The inconsistent statement is probative of the brother's credibility, and FRE 806 permits such impeachment.
A is incorrect. This is a misapplication of the law. What is being offered here is a prior inconsistent statement of a hearsay declarant. The goal is to impeach that declarant's credibility. The brother's original statement would have been admitted as an excited utterance under FRE 803(2). While it is ordinarily true that a witness impeached with a prior inconsistent statement must be given an opportunity to explain or deny it, that opportunity is not available when a hearsay declarant is not produced at trial. FRE 806 provides that the ordinary requirement of a «fair opportunity to explain or deny» is not applicable to hearsay declarants who are being impeached with prior inconsistent statements.
B is incorrect. A prosecutor possesses no right to constitutional right to confrontation; only a criminal defendant has that right. Nevertheless, here, it is the prosecutor who offered the statement that the brother made at the time of the crime, so the prosecutor cannot argue a lack of opportunity to confront the brother.
C is incorrect. This answer reaches the correct answer with the wrong reasoning. Although the witness's testimony about the brother's later statement is admissible, it may only be used for impeachment, not as substantive evidence. The out-of-court statement by the brother, if offered for the truth (that the woman did not rob the bank) would be hearsay, without any applicable exception. However, if only offered for impeachment purposes, it is admissible, as explained above.