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<\/p>\nLawyers fight tooth and nail over whether a particular statement is admissible hearsay \u2013 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.\u00a0 And then they stop.\u00a0 But as a recent Pennsylvania Superior Court OPINION makes clear, the Judge\u2019s decision to allow the hearsay testimony in no way precludes a lawyer from attacking it even though the declarant is ‘invisible.’<\/p>\n
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The case is Commonwealth v. Williams<\/u>, 2021 Pa. Super. LEXIS 32, *11, 2021 PA Super 13 (January 26, 2021).\u00a0 And the rule it applies is one too few lawyers or judges know, and fewer still make use of \u2013 Rule 806.\u00a0 The Pennsylvania version is:<\/p>\n
\u00a0When a hearsay statement has been admitted in evidence, the declarant\u2019s 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\u2019s inconsistent statement or conduct, regardless of when it occurred or whether the declarant had an opportunity to explain or deny it.<\/p>\n
The Federal version is for all intents and purposes identical in reach.\u00a0 And what each means is that if witness \u201cA\u201d testifies to witness \u201cB\u2019s\u201d hearsay, witness \u201cB,\u201d albeit invisible in the sense of not being present, may be impeached.\u00a0 How? By proof of the original hearsay declarant\u2019s prior inconsistent statements, bias,\u00a0 dishonest character, limited capacity or other reasonable challenges.<\/p>\n
And why is Williams<\/em> important?\u00a0 Although Williams himself lost his appeal under a harmless error standard, the Superior Court \u2013 for the first time since Pennsylvania adopted its Rules of Evidence roughly twenty-five years ago \u2013 applied 806 directly and made clear that hearsay declarants may be impeached the same as if they were testifying at trial.<\/p>\n Williams<\/em> and 806 are actually embodiments of pre-Rules Pennsylvania decisional law.\u00a0 In 1987, the Superior Court made clear that \u201c[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.\u201d Beyond the availability of 806 itself, Williams <\/em>is a reminder that hearsay testimony is not immune from attack.\u00a0 The most famous guide for this was written nearly half a century ago by Harvard Professor Laurence Tribe.\u00a0 Triangulating <\/em>Hearsay<\/em>, 87 HARV. L. REV. 957 (1974), explained that hearsay may suffer from several infirmities: faulty perception, faulty memory, insincerity, and narrative ambiguity.\u00a0 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.<\/em>, with less than candor.<\/p>\n Tribe omitted a second level of frailty for hearsay \u2013 the problems with the witness who repeats the assertion.\u00a0 Does the in-court witness have a bias, a memory problem, or a less-than-honest character?<\/p>\n What lessons can be derived from Williams<\/em> and the Tribe list of infirmities?\u00a0 There are several:<\/p>\n One practice point is worth noting.\u00a0 The challenges of \u2018what exactly did the declarant see,\u2019 \u2018where were they when they observed it,\u2019 and \u2018what condition was the declarant in\u2019 may not be known by the person repeating the hearsay in court.\u00a0 So these may best be saved for argument to the jury \u2013 \u2018members of the jury, here\u2019s what you don\u2019t know\u2026\u201d<\/p>\n The over-arching lesson is this \u2013 the battle over hearsay does not end when the Judge says \u201cobjection overruled.\u201d\u00a0 Williams<\/em>, Tribe and 806 lay the foundation for going beyond admissibility and focusing on the value the hearsay should be given \u2013 and each offers a tool or tools to the opposing party to call the evidence into question and urge its disbelief.<\/p>\n","protected":false},"excerpt":{"rendered":" Lawyers fight tooth and nail over whether a particular statement is admissible hearsay \u2013 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.\u00a0 And then they stop.\u00a0 But as a recent Pennsylvania Superior<\/p>\n","protected":false},"author":31,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"generate_page_header":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[3,7,11],"tags":[],"coauthors":[238],"class_list":["post-2968","post","type-post","status-publish","format-standard","hentry","category-advocacy-and-evidence-blog","category-evidence","category-trial-advocacy"],"yoast_head":"\n
\nCommonwealth v. Davis<\/u>, 363 Pa. Super. 562, 583, 526 A.2d 1205, 1216\u00a0 (Pa.Super. 1987).<\/p>\n\n
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