Rule 806: Cross-Examining an Absent Witness

How do you cross-examine a witness who isn’t there?

This is one of the problems with hearsay statements and statements of co-conspirators – they aren’t there (or they are there but they aren’t on the witness stand) and they are not subject to cross-examination.

Or are they?

Rule 806, often overlooked, allows you to cross-examine an absent witness when their statement has been admitted as an exception to the hearsay rules or as a co-conspirator…

Rule 806: Cross-Examining an Absent Witness

Rule 806 of the SC Rules of Evidence says:

When a hearsay statement, or a statement defined in Rule 801(d)(2)(C), (D), or (E) has been admitted in evidence, the credibility of the declarant may be attacked, and if attacked may be supported, by any evidence which would be admissible for those purposes if declarant had testified as a witness. Evidence of a statement or conduct by the declarant at any time, inconsistent with the declarant’s hearsay statement, is not subject to any requirement that the declarant may have been afforded an opportunity to deny or explain. If the party against whom a hearsay statement has been admitted calls the declarant as a witness, the party is entitled to examine the declarant on the statement as if under cross-examination.

When you expect the prosecution to attempt to enter hearsay statements into evidence under one of the hearsay exceptions, you can 1) cry because it hurts your case or 2) rejoice because now they have opened the door to evidence you would not have gotten in otherwise.

Most attorneys instinctively react to hearsay evidence by trying to exclude it. Instead, they should first consider whether it helps them by allowing cross-examination of a witness who is not there to defend themselves…

What if, instead of the jury hearing, “Billy said the defendant is a killer,” the jury hears, “Billy said the defendant is a killer. Also, Billy said on two other occasions that Johnnie was the killer, Billy has multiple convictions for lying to police, and Billy has a reputation for being dishonest whenever it helps himself?”

If Billy had taken the witness stand, all that information would have been admissible in cross-examination to impeach him. If the prosecutor introduces Billy’s hearsay statement and Billy is not there, you still get to impeach Billy “by any evidence which would be admissible for those purposes if [the] declarant had testified as a witness.”

Even better, if you can impeach Absent Billy with prior inconsistent statements, there is no requirement that Billy must have been “afforded an opportunity to deny or explain.”

If Billy could have explained his prior inconsistent statements, his criminal record, or other impeachment material, now he can’t. Because he’s not there.

What Information Can You Use to Impeach an Absent Witness Under Rule 806?

…the credibility of the declarant may be attacked… by any evidence which would be admissible for those purposes if declarant had testified as a witness.

Yes, but what does that mean?

Character, Conduct, and Bias of Witness

Under Rule 608, credibility can be attacked by opinion or reputation evidence, limited to the witness’s reputation for truthfulness or untruthfulness.

Extrinsic evidence” (in this context, evidence that comes from someone other than the witness who is being questioned) of specific instances of the conduct of (an absent) witness can “be inquired into on cross-examination of the witness [] concerning the witness’ character for truthfulness or untruthfulness” in the court’s discretion (extrinsic evidence is not likely to be admitted in most situations).

Evidence of “[b]ias, prejudice or any motive to misrepresent may be shown to impeach the witness either by examination of the witness or by evidence otherwise adduced.”

Impeachment by Evidence of Conviction of Crime

Rule 609 allows impeachment of a witness’s credibility by evidence of criminal convictions, subject to Rule 403’s more probative than prejudicial analysis, and, with some exceptions, if the conviction was within the past ten years, if:

  • The crime was punishable by death or imprisonment in excess of one year, or
  • The crime involved dishonesty or a false statement, regardless of the punishment.

This also applies to no-contest and Alford pleas, and the absent witness will not have an opportunity to explain their conviction.

Prior Statements of Witnesses

Rule 613 allows a witness to be impeached by extrinsic evidence of prior inconsistent statements made by the witness.

Ordinarily, the attorney must confront the witness about the prior statement, including 1) what the statement was, 2) the time and place the statement was made, and 3) the person the statement was made to, and then the witness must be allowed to explain or deny the statement.

If the witness admits making the statement, it’s over and you can’t introduce extrinsic evidence to prove that they made the statement. If the witness denies making the statement, then you can introduce extrinsic evidence to prove that they said what they said.

If you are “cross-examining an absent witness” under Rule 806, however, the witness is not there to admit or deny the prior inconsistent statement, and there is no “requirement that the declarant may have been afforded an opportunity to deny or explain” the prior inconsistent statement.

What if You Call the Witness?

If the prosecutor introduces a hearsay statement by an absent witness or co-conspirator, you can then call that witness to testify yourself (if you can find them and if it won’t hurt your case).

If you call the witness, you are then “entitled to examine the declarant on the statement as if under cross-examination.”

Ordinarily, you must ask direct examination questions when you call the witness (Oh, so what happened next?), and the ability to cross-examine your own witness can give you an edge (Isn’t it true that you killed Sally?!).

Damaging hearsay evidence on the horizon? Look at the silver lining and use it for all it’s worth…

Criminal Defense Lawyer in Charleston, SC

Charleston criminal defense lawyer Grant B. Smaldone focuses on criminal defense cases and criminal trials – studying and understanding the Rules of Evidence including the hearsay rule and the hearsay exceptions is a routine part of our law practice.

If you have been charged with a crime in the Charleston area, call SC criminal defense lawyer Grant B. Smaldone now at (843) 808-2100 or fill out our online contact form to schedule a free consultation.


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