Introduction: ER 806 is an important rule in Washington evidence law that deals with the credibility of a declarant when a hearsay statement or a statement defined under ER 801(d)(2)(iii), (iv), or (v) has been admitted into evidence. This rule outlines how the credibility of the declarant can be attacked or supported, even if the declarant does not testify as a witness. In this article, we explore the key aspects of ER 806, its implications in court, and how it can be used effectively in legal proceedings.
Key Provisions of ER 806:
- Attacking the Credibility of the Declarant:
When a hearsay statement is admitted into evidence, ER 806 allows the opposing party to attack the credibility of the declarant. This means that any evidence that would normally be admissible to challenge the credibility of a witness can be used against the declarant, even though the declarant is not present in court to testify. This provision ensures that hearsay statements do not escape scrutiny and can be challenged in a manner similar to direct testimony. - Supporting the Credibility of the Declarant:
If the declarant’s credibility is attacked under ER 806, the party that introduced the hearsay statement may also introduce evidence to support the declarant’s credibility. This balance allows both parties to address the reliability of the hearsay statement, ensuring that the jury or judge can make a well-informed decision about the evidence. - Inconsistent Statements and Conduct:
ER 806 specifically allows for the introduction of evidence showing that the declarant made statements or engaged in conduct that is inconsistent with the hearsay statement. Notably, this evidence is not subject to the requirement that the declarant was given an opportunity to deny or explain the inconsistency. This provision is crucial for highlighting contradictions and questioning the reliability of the hearsay statement. - Cross-Examination Rights:
If the party against whom the hearsay statement is admitted chooses to call the declarant as a witness, they are entitled to examine the declarant as if under cross-examination. This gives the opposing party the opportunity to directly challenge the declarant’s credibility and the content of the hearsay statement.
Practical Implications: ER 806 provides attorneys with powerful tools for both attacking and supporting the credibility of a declarant in cases where hearsay statements are admitted. It ensures that hearsay evidence is subject to the same level of scrutiny as direct testimony, allowing the court to thoroughly evaluate the reliability of all evidence presented. Lawyers must be prepared to use this rule effectively to challenge the credibility of hearsay statements or to defend the credibility of their own evidence.
For a complete understanding of the rule, you can review the full text of ER 806 here.
Conclusion: ER 806 plays a critical role in ensuring that hearsay statements admitted into evidence are subject to rigorous examination. By allowing the credibility of the declarant to be attacked or supported, the rule helps maintain the integrity of the judicial process and ensures that all evidence is thoroughly vetted.
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