Trial lawyers and judges are quite accustomed to courtroom battles over the admissibility of hearsay. But relatively few have much experience at challenging the credibility of hearsay. Once hearsay is admitted in evidence, even the ablest advocates typically proceed as if the hearsay battle were over, at least until the appeal. Few lawyers take advantage of the opportunities available to impeach the hearsay declarant. Consider the perspective of one experienced trial judge: I sometimes wonder at what seems to me the passing up of golden opportunities by the able advocate. Foremost among these lost opportunities is the virtual total neglect to do anything about the other side's hearsay once it has been admitted by the trial judge into evidence. True enough, the able advocate fought valiantly against the hearsay admission; but, having lost that position, he does not fall back to the next logical position-impeaching the hearsay declarant. Federal Rule of Evidence 806, which explicitly provides for impeachment of hearsay declarants, may be the most neglected of the Federal Rules relating to hearsay. Rule 806 states: 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
John G. Douglass, Virtual Cross-Examination: The Art of Impeaching Hearsay, 34 J. Mar. L. & Com. 149 (2003).