Impeachment | Problem 15

P sues D for stealing Ps wallet on a subway. To prove that D stole it, P calls W, who testifies that just after P discovered the theft, X, who was standing close by, pointed to D and yelled, D just stole your wallet.

On cross-examination, D asks W if it isnt true that 10 minutes later, X told W that somebody else stole Ds wallet. P objects on hearsay and impermissible impeachment grounds.

How should the court rule on those two grounds?

Objection sustained as to hearsay but overruled as to impeachment. Xs first statement (D just stole your wallet), although hearsay, would likely be excepted as a present sense impression or an excited utterance under FRE 803(1) or 803(2), respectively. It is Xs second purported statementthat somebody else stole the walletwhich amounts to inadmissible hearsay given the lapse in time. The twist here is the invocation of FRE 806, which permits an out-of-court declarant (whose hearsay statement has been admitted, as here) to be impeached as if she were testifying at trial. FRE 806 explicitly permits impeachment of such a declarant through the use of a prior inconsistent statement.

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