707.4Declarant’s Credibility [Rule 806]

The Basic Rule

Rule 806 – Attacking and Supporting Credibility of Declarant

G.S. 8C-806 (reformatted for clarity). The rationale for this rule is that if the declarant’s statement has been allowed into evidence, the declarant is “in effect a witness,” and therefore “his credibility should in fairness be subject to impeachment and support as though he had in fact testified.” G.S. 8C-806, Official Commentary.

Admissibility and Scope

Rule 806 addresses three related topics:

1. Attacking Credibility
   If a hearsay statement is admitted into evidence, the credibility of the declarant may be attacked (and if attacked, may be supported) in the same way that the declarant’s credibility could be proved if he or she were present and testifying as a witness. G.S. 8C-806. See, e.g., State v. Forrest, 164 N.C. App. 272 (2004), vacated on confrontation grounds, 548 U.S. 923 (2006), on remand, 360 N.C. 642 (2006) (declarant’s statement to law enforcement officer was admissible on redirect examination in response to questions asked on cross-examination to attack declarant’s credibility); State v. McConico, 153 N.C. App. 723 (2002) (Rule 806 treats a declarant whose statement has been admitted “the same as a live witness for purposes of impeachment”); State v. Lemons, 352 N.C. 87 (2000) (where defense introduced hearsay statements to attack declarant’s credibility, state was permitted to offer prior statements of the declarant that were inconsistent with statements offered by the defense); State v. Small, 131 N.C. App. 488 (1998) (allowing introduction of a contradictory statement on rebuttal to impeach declarant’s statement).
2. No Opportunity to Deny/Explain
   Because the declarant may not be present in court, the declarant does not have to be given an opportunity to “deny or explain” an inconsistent statement or conduct before he or she may be impeached with it. G.S. 8C-806, Official Commentary.
3. Manner of Questioning
   Finally, Rule 806 states that if a statement by the declarant has been offered into evidence, the party against whom the statement was offered may call the declarant as a witness and examine him or her as if the witness were on cross-examination (rather than direct examination). G.S. 8C-806. For more information, see the related Trial entry on Cross-examination of Witnesses.

Related Topics

For general information about the methods, timing, permissible subjects, and use of extraneous evidence to impeach the credibility of a witness, see the following related Evidence entries:

Character Evidence Generally – Rule 404(a)

Methods of Proving Character – Rule 405

General Impeachment - Rule 607

Impeaching Character and Conduct – Rule 608

Impeachment by Prior Conviction – Rule 609

Impeachment of Religious Beliefs – Rule 610

Mode and Order of Examining Witnesses – Rule 611

Impeachment with Prior Statement – Rule 613