707.4Declarant’s Credibility [Rule 806]

Last Updated: 05/23/24

Key Concepts

  • A declarant whose statement has been admitted into evidence may be impeached in the same manner as a witness who testifies.
  • There is no requirement that the declarant be afforded an opportunity to deny or explain an inconsistent statement.
  • The party against whom the hearsay statement is offered may call and cross-examine the declarant.

The Basic Rule

Rule 806 – Attacking and Supporting Credibility of Declarant

When a hearsay statement 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 his hearsay statement, is not subject to any requirement that he 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 him on the statement as if under cross-examination.

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 extrinsic 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

Portions of this entry were excerpted from Jessica Smith, “Criminal Evidence: Hearsay,” North Carolina Superior Court Judges’ Benchbook, October 2013.