Lawyers fight tooth and nail over whether a particular statement is admissible hearsay – is it an assertion; if so, is it offered for its truth; and if both conditions are met, is there a hearsay exception that permits it to be heard or seen.  And then they stop.  But as a recent Pennsylvania Superior Court OPINION makes clear, the Judge’s decision to allow the hearsay testimony in no way precludes a lawyer from attacking it even though the declarant is ‘invisible.’

The case is Commonwealth v. Williams, 2021 Pa. Super. LEXIS 32, *11, 2021 PA Super 13 (January 26, 2021).  And the rule it applies is one too few lawyers or judges know, and fewer still make use of – Rule 806.  The Pennsylvania version is:

 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.

The Federal version is for all intents and purposes identical in reach.  And what each means is that if witness “A” testifies to witness “B’s” hearsay, witness “B,” albeit invisible in the sense of not being present, may be impeached.  How? By proof of the original hearsay declarant’s prior inconsistent statements, bias,  dishonest character, limited capacity or other reasonable challenges.

And why is Williams important?  Although Williams himself lost his appeal under a harmless error standard, the Superior Court – for the first time since Pennsylvania adopted its Rules of Evidence roughly twenty-five years ago – applied 806 directly and made clear that hearsay declarants may be impeached the same as if they were testifying at trial.

Williams and 806 are actually embodiments of pre-Rules Pennsylvania decisional law.  In 1987, the Superior Court made clear that “[a]trial court does not abuse its discretion in allowing the prosecution to attempt to impeach a[n unavailable] witness’s testimony by utilizing a statement given by the witness to a police officer at the scene of the crime.”
Commonwealth v. Davis, 363 Pa. Super. 562, 583, 526 A.2d 1205, 1216  (Pa.Super. 1987).

Beyond the availability of 806 itself, Williams is a reminder that hearsay testimony is not immune from attack.  The most famous guide for this was written nearly half a century ago by Harvard Professor Laurence Tribe.  Triangulating Hearsay, 87 HARV. L. REV. 957 (1974), explained that hearsay may suffer from several infirmities: faulty perception, faulty memory, insincerity, and narrative ambiguity.  Said more simply, did the declarant observe the event clearly, remember it accurately, narrate it less than precisely, and do any of these with insincerity, i.e., with less than candor.

Tribe omitted a second level of frailty for hearsay – the problems with the witness who repeats the assertion.  Does the in-court witness have a bias, a memory problem, or a less-than-honest character?

What lessons can be derived from Williams and the Tribe list of infirmities?  There are several:

  • The in-court ‘repeater’ of the hearsay is fair game for the attacks that may be raised with any witness.
  • The original asserter – the hearsay declarant who is not at trial – may have their account challenged on grounds of what information the jury has been deprived of:
    • Where the witness was when making the original observation?
    • The witness’ condition [drunk, tired, confused] when making the original observation?
  • 806 impeachment exists if the grounds – prior inconsistent statement, bias, etc. – are provable with competent evidence.

One practice point is worth noting.  The challenges of ‘what exactly did the declarant see,’ ‘where were they when they observed it,’ and ‘what condition was the declarant in’ may not be known by the person repeating the hearsay in court.  So these may best be saved for argument to the jury – ‘members of the jury, here’s what you don’t know…”

The over-arching lesson is this – the battle over hearsay does not end when the Judge says “objection overruled.”  Williams, Tribe and 806 lay the foundation for going beyond admissibility and focusing on the value the hearsay should be given – and each offers a tool or tools to the opposing party to call the evidence into question and urge its disbelief.