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More Fun With TBLS

Here’s another sample question from the Texas Board of Legal Specialization:

In federal court, where a hearsay statement is admitted, the credibility of the declarant may be attacked by: a. Prior convictions, subject to Rule 609; b. Opinion and reputation testimony concerning the declarant’s truthfulness; c. Prior inconsistent statements; d. Specific instance of conduct, if probative of truthfulness or untruthfulness; e. all of the above except d. 

The answer is found starting in Federal Rule of Evidence 806:

When a hearsay statement — or a statement described in Rule 801(d)(2)(C), (D), or (E) — has been admitted in evidence, the declarant’s credibility may be attacked, and then supported, by any evidence that would be admissible for those purposes if the declarant had testified as a witness. The court may admit evidence of the declarant’s inconsistent statement or conduct, regardless of when it occurred or whether the declarant had an opportunity to explain or deny it. If the party against whom the statement was admitted calls the declarant as a witness, the party may examine the declarant on the statement as if on cross-examination.

That is, the credibility of the out-of-court declarant can be attacked with prior convictions (Rule 609), opinion and reputation testimony (Rule 608(a)), and prior inconsistent statements (Rule 613), but not specific instances of conduct other than convictions (Rule 608(b)) unless the party against whom the statement calls the declarant as a witness, in which case he may cross-examine the declarant about specific instances of conduct other than criminal convictions.

So the best answer is (e).

TBLS’s answer?:

c. Rule 806, Federal Rules of Evidence, Note that Rule 608 would not apply because specific instances of conduct may not be proven by extrinsic evidence. 

That one, I’m willing to attribute to a typo. Someone typed “c” for “e.”


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