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  • Writer's pictureBrian Foley

Montgomery County Criminal Defense Attorney - Texas Rules of Evidence Rule 806

Montgomery County Criminal Defense Attorney - Brian Foley - Board Certified in Criminal Law

Texas Rule of Evidence 806 says that when hearsay statements that are admitted into evidence you can attack and impeach the credibility of the person who allegedly made the statement which has now been accepted as hearsay evidence. In plain English this means that if you get to say what someone else said, I get to say prove they're a liar in the first place.

If you want to get technical it says that when hearsay exceptions or exclusions which are not a statement made specifically by the opposing party or depositions are used you can impeach the credibility of the declarant who made the statement that has been admitted.

There used to be rules about the timing of the statement made and offered under a hearsay exception or exclusion and the statement being used to impeach but those have been abolished and the rule is now that you may attack the statement regardless of when it occurred and without the need for the person who made the statement being given an opportunity to explain or deny the statement.

Here are the exclusions from rule 801 that are eligible.

A statement is not hearsay if it:

(C) was made by a person whom the party authorized to make a statement on the subject;

(D) was made by the party’s agent or employee on a matter within the scope of that relationship and while it existed; or

(E) was made by the party’s coconspirator during and in furtherance of the conspiracy.

In a civil case the following may also be attacked under this rule.

TRE 801 (e)(3) A Deponent’s Statement.

In a civil case, the statement was made in a deposition taken in the same proceeding. “Same proceeding” is defined in Rule of Civil Procedure 203.6(b). The deponent’s unavailability as a witness is not a requirement for admissibility.

“The intent of Rule 806 is to "permit impeachment and rehabilitation by any means that could be used if the declarant were a witness." Bee v. State, 974 S.W.2d 184, 190 (Tex.App.-San Antonio 1998, no pet.)” Craig v. State, No. 14-00-01282-CR, (Tex. App. Jun. 26, 2003)

Here is a big problem for criminal defense attorney's with the rule. Rule 806 can "set a trap for criminal defense counsel. A defendant who chooses not to testify but who succeeds in getting his or her own exculpatory statements into evidence runs the risk of having those statements impeached by felony convictions." United States v. Montana, 19 F. Supp.2d 873, 876 (N.D.Ill. 1998) (citing Jack Weinstein Margaret Berger, Weinstein's Federal Evidence § 806.04[2][b], at 806-1 to 806-12 (Joseph McLaughlin ed., 2d ed. 1998)). Craig v. State, No. 14-00-01282-CR, (Tex. App. Jun. 26, 2003).

So be careful out there when you are considering trying to get in your defendant's statement through hearsay. It can be yet another way of opening the door to impeachment through credibility.

Rule 806. Attacking and Supporting the Declarant’s Credibility

When a hearsay statement—or a statement described in Rule 801(e)(2)(C), (D), or (E), or, in a civil case, a statement described in Rule 801(e)(3)—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 statement or conduct, offered to impeach the declarant, 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.


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