Alaska R. Evid. 806 commentary

The declarant of a hearsay statement, or a statement defined

by Rule 801(d)(2)(C), (D), or (E) as non-hearsay (throughout

this Comment the reader should take the word “hearsay” to

include these statements), which is admitted in evidence, is in

effect a witness. The Supreme Court’s confrontation cases

make this point clear. See, e.g., Douglas v. Alabama, 380 U.S.

415, 13 L.Ed.2d 934 (1965); Bruton v. United States, 389 U.S.

818, 19 L.Ed.2d 70 (1968). His credibility should in fairness be

subject to impeachment and support as though he had in fact

testified. See Rules 608 and 609. This ensures that hearsay

declarants who are cross-examined in the presence of the jury

are not presumed to be truthful while live witnesses are subject

to attack. There are, however, some special aspects of the

impeaching of a hearsay declarant which require consideration.

These special aspects center upon impeachment by inconsistent statement, arise from factual differences which

exist between the use of hearsay and an actual witness and also

between various kinds of hearsay, and involve the question of

applying to declarants the general rule disallowing evidence of

an inconsistent statement to impeach a witness unless he is

afforded an opportunity to deny or explain. See Rule 613(b).

The principal difference between using hearsay and an

actual witness is that the inconsistent statement will in the case

of the witness almost inevitably be a prior statement, which it

is entirely possible and feasible to call to his attention, while in

the case of hearsay the inconsistent statement may well be a

subsequent one, which practically precludes calling it to the

attention of the declarant. The result of insisting upon

observation of this impossible requirement in the hearsay

situation is to deny the opponent, already barred from

cross-examination, the benefit of this important technique of

impeachment. The writers favor allowing the subsequent

statement. E.g., McCormick (2d ed.) § 37. The cases, however,

are divided. Cases allowing the impeachment include People v.

Collup, 167 P.2d 714 (Cal. 1946); People v. Rosoto, 373 P.2d

867 (Cal. 1962); Carver v. United States, 164 U.S. 694, 41

L.Ed. 602 (1897). Contra, Mattox v. United States, 156 U.S.

237, 39 L.Ed. 409 (1895); People v. Hines, 29 N.E.2d 483

(N.Y. 1940). The force of Mattox, where the hearsay was the

former testimony of a deceased witness and the denial of use

of a subsequent inconsistent statement was upheld, is much

diminished by Carver, where the hearsay was a dying

declaration and denial of use of a subsequent inconsistent

statement resulted in reversal. The difference in the particular

brand of hearsay seems unimportant when the inconsistent

statement is a subsequent one. Although it is true that the

opponent is not totally deprived of cross-examination when the

hearsay is former testimony or a deposition, the fact remains

that he is deprived of cross-examining on the statement or

along lines suggested by it.

One commentary on Federal Rule 806 is also apropos of the

Alaska rule.

It would have been possible for the draftsmen of the

Rule to distinguish situations outside of a formal judicial

proceeding or deposition from proceedings where a witness

is sworn and a formal statement is made and recorded, and

to distinguish statements made prior to a judicial proceeding

(including deposition) from those made afterwards. When a

deposition is taken, for instance, it is possible to require that

any party having knowledge of a statement made prior to

deposing the witness and inconsistent with the witness’

statement must give the witness a chance to explain the

inconsistency at the deposition upon penalty of being unable

to demonstrate the inconsistency at trial if the person who

was deposed is unable to appear.

The Advisory Committee rejected drawing this line between

informal and formal statements on the ground that deposition

procedures are cumbersome and expensive enough, and to

require the laying of the foundation might impose undue

burdens. Moreover, the Committee appears to have concluded

that a distinction based on the timing of inconsistent statements

was more complex than beneficial. The Committee was not

inclined to adopt a general Rule requiring a foundation with an

exception for special circumstances.

K. Redden & S. Saltzburg, Federal Rules of Evidence Manual

634 (2d ed. 1977).

For similar provisions, see, Uniform Rule 65; California

Evidence Code § 1202; Kansas Code of Civil Procedure

§ 60-462; New Jersey Evidence Rule 65.

The provision for cross-examination of a declarant upon his

hearsay statement is a corollary of general principles of

cross-examination. A similar provision is found in California

Evidence Code § 1203.

The Senate Committee on the Judiciary explained why the

Rule does not cover statements defined by Rule 801 (d) (2) (A)

& (B):

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.

The Alaska rule is in accord.