Ohio R. Evid. 806

As amended through March 13, 2024

Rule 806 - Attacking and Supporting Credibility of Declarant

(A) When a hearsay statement, or a statement defined in Evid.R. 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 that would be admissible for those purposes if declarant had testified as a witness.

(B) Evidence of a statement or conduct by the declarant at any time, inconsistent with the declarant's hearsay statement, is not subject to any requirement that the declarant may have been afforded an opportunity to deny or explain.

(C) Evidence of a declarant's prior conviction is not subject to any requirement that the declarant be shown a public record.

(D) If the party against whom a hearsay statement has been admitted calls the declarant as a witness, the party is entitled to examine the declarant on the statement as if under cross-examination.

Ohio. R. Evid. 806

Effective:7/1/1980; amended 7/1/1998.

Staff Note (July 1, 1998 Amendment)

Rule 806 Attacking and Supporting Credibility of Declarant

The content of divisions (A), (B), and (D) was part of the previous rule. These divisions were divided and lettered by the 1998 amendment, masculine references were made gender-neutral, and the style used for rule references was changed; no substantive change is intended.

Division (C) was added by the 1998 amendment. The limitation in Evid. R. 609(F) that the prior conviction be proved by the testimony of the witness or by public record shown to the witness during the examination clearly contemplates the witness's presence at trial; this is in tension with Evid. R. 806, which provides that a hearsay declarant may be impeached "by any evidence which would have been admissible for those purposes if declarant had testified as a witness." In State v. Hatcher (1996), 108 Ohio App.3d 628, 671 N.E.2d 572, a witness for the defense at the defendant's first trial was unavailable at the time of defendant's second trial. His testimony from the first trial was admitted into evidence as former testimony under Evid. R. 804(B)(1). The trial court then admitted into evidence certified copies of the declarant's prior felony convictions, which were offered by the prosecution to impeach the witness. The court of appeals noted the "arguable conflict" between Evid. R. 609(F) and Evid. R. 806, but determined that the admission of the certified copies of the witness's prior felony convictions was not error. The amendment clarifies this ambiguity; it does not change the requirements of Evid. R. 609(A) through (E) as applied to hearsay declarants.