Alaska Comm. R. Evid. 806
The declarant of a hearsay statement, or a statement defined by Rule 801(d)(2)(C), (D), or (E) as non-hearsay (throughout this Comment the reader should take the word "hearsay" to include these statements), which is admitted in evidence, is in effect a witness. The Supreme Court's confrontation cases make this point clear. See, e.g., Douglas v. Alabama, 380 U.S. 415, 13 L.Ed.2d 934 (1965); Bruton v. United States, 389 U.S. 818, 19 L.Ed.2d 70 (1968). His credibility should in fairness be subject to impeachment and support as though he had in fact testified. See Rules 608 and 609. This insures that hearsay declarants who are cross-examined in the presence of the jury are not presumed to be truthful while live witnesses are subject to attack. There are, however, some special aspects of the impeaching of a hearsay declarant which require consideration. These special aspects center upon impeachment by inconsistent statement, arise from factual differences which exist between the use of hearsay and an actual witness and also between various kinds of hearsay, and involve the question of applying to declarants the general rule disallowing evidence of an inconsistent statement to impeach a witness unless he is afforded an opportunity to deny or explain. See Rule 613(b).
The principal difference between using hearsay and an actual witness is that the inconsistent statement will in the case of the witness almost inevitably be a prior statement, which it is entirely possible and feasible to call to his attention, while in the case of hearsay the inconsistent statement may well be a subsequent one, which practically precludes calling it to the attention of the declarant. The result of insisting upon observation of this impossible requirement in the hearsay situation is to deny the opponent, already barred from cross-examination, the benefit of this important technique of impeachment. The writers favor allowing the subsequent statement. E.g., McCormick (2d ed.) §37. The cases, however, are divided. Cases allowing the impeachment include People v. Collup, 167 P.2d 714 (Cal. 1946); People v. Rosoto, 373 P.2d 867 (Cal. 1962); Carver v. United States, 164 U.S. 694, 41 L.Ed. 602 (1897). Contra, Mattox v. United States, 156 U.S. 237, 39 L.Ed. 409 (1895); People v. Hines, 29 N.E.2d 483 (N.Y. 1940). The force of Mattox, where the hearsay was the former testimony of a deceased witness and the denial of use of a subsequent inconsistent statement was upheld, is much diminished by Carver, where the hearsay was a dying declaration and denial of use of a subsequent inconsistent statement resulted in reversal. The difference in the particular brand of hearsay seems unimportant when the inconsistent statement is a subsequent one. Although it is true that the opponent is not totally deprived of cross-examination when the hearsay is former testimony or a deposition, the fact remains that he is deprived of cross-examining on the statement or along lines suggested by it.
One commentary on Federal Rule 806 is also apropos of the Alaska rule.
It would have been possible for the draftsmen of the Rule to distinguish situations outside of a formal judicial proceeding or deposition from proceedings where a witness is sworn and a formal statement is made and recorded, and to distinguish statements made prior to a judicial proceeding (including deposition) from those made afterwards. When a deposition is taken, for instance, it is possible to require that any party having knowledge of a statement made prior to deposing the witness and inconsistent with the witness' statement must give the witness a chance to explain the inconsistency at the deposition upon penalty of being unable to demonstrate the inconsistency at trial if the person who was deposed is unable to appear.
The Advisory Committee rejected drawing this line between informal and formal statements on the ground that deposition procedures are cumbersome and expensive enough, and to require the laying of the foundation might impose undue burdens. Moreover, the Committee appears to have concluded that a distinction based on the timing of inconsistent statements was more complex than beneficial. The Committee was not inclined to adopt a general Rule requiring a foundation with an exception for special circumstances.
K. Redden & S. Saltzburg, Federal Rules of Evidence Manual 634 (2d ed. 1977).
For similar provisions, see, Uniform Rule 65; California Evidence Code § 1202; Kansas Code of Civil Procedure § 60-462; New Jersey Evidence Rule 65.
The provision for cross-examination of a declarant upon his hearsay statement is a corollary of general principles of cross-examination. A similar provision is found in California Evidence Code § 1203.
The Senate Committee on the Judiciary explained why the Rule does not cover statements defined by Rule 801(d) (2) (A) & (B):
The committee considered it unnecessary to include statements contained in rule 801(d) (2) (A) and (B) -- the statement by the party-opponent himself or the statement of which he has manifested his adoption -- because the credibility of the party-opponent is always subject to an attack on his credibility.
The Alaska rule is in accord.
Alaska Comm. R. Evid. 806