Impeachment | Problem 20

P sues D for negligently causing a car accident. At trial, P calls W1 who testifies that right after the accident, P was sobbing and exclaimed, D just rammed into me. P decided not to testify at trial. Ds defense at trial is that P was the one who caused the car accident. D then produces W2 who intends to testify that P is a known liar.

P objects to W2s testimony. How should the court rule?

Objection overruled. W2s testimony is offered to impeach a hearsay declarant. FRE 806 is a rule for that purpose. Here, we assume that W1s hearsay statement was admitted, most likely as an excited utterance.

Ordinarily, a person who does not testify at trial may not be impeached. However, FRE 806 provides that if a hearsay statement by that person makes it into evidence, impeachment rules apply to that hearsay declarant. Consequently, FRE 608 may be used to impeach the declarants reputation for untruthfulness. That is what W2s statement seeks to accomplish.

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