The Landmine of The Federal Rules of Evidence - Rule 806

By: Mark R. Eiglarsh, Esq.

The Hypothetical

You're trying a case in Federal Court. Your client is accused of robbing a Nations Bank with two other young males. They were all armed with guns, and wore disguises. Most of the 25, primarily elderly patrons, were horrified and will "never forget that day" as long as they live.

This isn't the first time you've tried this case. The first trial ended in a hung jury. The second trial, which featured a more senior prosecutor, also failed to yield a unanimous verdict. For the third trial, the government brings in yet another prosecutor. This one's also a veteran seasoned. Entering the courtroom, the "Crusher" of the prosecutor's office who gives you an "I must break you" stare, making it very clear that this time, "You will lose". Both sides are looking for some edge in order to bring this time–consuming and physically draining battle to a conclusion.

The government presents it's case and rests. Then, you put on your case. Your final piece of evidence comes from a nurse who works for the Federal Detention Center who examined your client on the day of his arrest. Her testimony is important because it concerns a collateral matter that has arisen during the trial. The nurse testifies that upon his entry into the jail, the defendant complained of injury to his right eye that occurred during his arrest. The government objects to the evidence, claiming it is hearsay. You respond by citing F.R.E. 803 (4), that allows into evidence, as an exception to the hearsay rule, statements given for the purpose of medical diagnosis or treatment. You win on that point. The nurse's testimony is allowed. With that said, you confidently rest your case. The government indicates it too has no additional evidence to present in rebuttal.

But then it happens. A moment that you will never forget. One that you will replay in your head numerous times after the case concludes.

After the Prosecutor's announcement that he has no additional evidence to present, one of his many comrades who were watching the trial rushes up to him pointing anxiously at a portion of his rule book. They converse for several seconds. Sounding unsure of himself, the prosecutor then announces, "Judge, I think we have additional evidence to present". He then announces that in light of the nurse's testimony, "the government seeks to introduce the defendant's entire criminal history" (eight prior felonies) to the jury. You are calm because his request sounds ludicrous and desperate. He cites "Rule 806". The judge pulls out her rule book. She reads and then slowly nods her head up and down. The nods become more pronounced and it actually appears that the judge believes there is some support for the prosecutor's request. "No way", you think. Could this really be happening? Well, it can and it did. Does your client's lengthy criminal history get presented before the jury under the above discussed scenario? The answer, unfortunately for one defendant was "yes".

The Argument

Federal Rule of Evidence 806 provides in part:

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 admissible for those purposes if the declarant had testified as a witness.

The government's argument to the judge commenced with the undisputed fact that the defense introduced a hearsay statement by admitting the nurse's testimony into evidence. The nurse's testimony consisted of what the defendant told her on the day of his arrest. Therefore, the defendant's credibility at the time he made the statement to her was called into question. The government argued that pursuant to Rule 806,they should be permitted to attack the defendant's credibility the same way as if he had taken the stand and testified on his own behalf. Therefore, they sought to impeach his credibility by introducing the fact that the defendant had been previously convicted of a felony eight times.

The court allowed the priors to come into evidence holding that the admission survived the 403 balancing test, believing that the evidence would be more probative than prejudicial. The court did, however, give a limiting instruction to the jury that the prior convictions were only to be considered for the purpose of assessing the defendant's credibility at the time that he made the statements, and not as proof of his guilt for the bank robbery.

Not surprisingly, once the jury heard about the defendant's numerous contacts with the system, he was convicted. For the government, the third time was a charm.

The Law

In United States v. Lawson, 608 F.2d 1129 (6th Cir. 1979), the defendant was convicted of uttering and possessing counterfeit money. During his trial in which he did not testify, Lawson's attorney cross–examined a Secret Service agent who testified on behalf of the government in order to bring out testimony that Lawson had consistently denied involvement in any criminal misconduct. Additionally, Lawson's attorney introduced a written statement in which Lawson denied all involvement in the counterfeit activities.

The court held that by introducing these hearsay statements into evidence, his attorney made Lawson's credibility an issue in the case the same as if Lawson had made the statements while testifying himself. Therefore, evidence which would have been admissible to impeach Lawson if he had testified was admissible for this purpose. Rule 609(a) of the Federal Rules of Evidence permit prior felony convictions to be introduced in order to impeach the declarant. The court allowed Lawson's priors into evidence with the limiting instruction that the evidence of the prior convictions was to be considered only regarding the issue of the defendant's credibility.

The same conclusion was reached by the court in the United States v. Noble, 754 F.2d 1324 (7th Cir. 1985). In that case, the defendant was convicted after jury trial of conspiracy to distribute counterfeit money. At trial, Noble's attorney introduced a taped conversation between an agent and the defendant wherein the agent posed as a counterfeit distributor. During the conversation, the agent attempted to convince the defendant to continue with the counterfeiting operation. On the tape, the defendant denied on four or five occasions any knowledge of counterfeiting operations. The government then sought to impeach the defendant's statements by introducing the defendant's prior conviction for counterfeiting. The district court allowed the prior conviction to be placed into evidence pursuant to the Federal Rules of Evidence 806 and 609(a)(2). The court, citing Lawson, held that when Noble's counsel introduced the taped conversation into evidence containing the defendant's exculpatory hearsay statements, the defense counsel made the defendant's credibility an issue. Therefore, pursuant to Federal Rule of Evidence 806, the defendant's prior conviction was properly admitted.

The Eleventh Circuit has addressed Rule 806 as well. In United States v. Bovain, 708 F.2d 606 (11th Cir. 1983), Bovain was charged along with co–defendants Brown, Finch, Rickett and Thorton with unlawful distribution of and conspiracy to distribute heroin in violation of 21 U.S.C. Sections 841(a)(1) and 846 (1976). At trial, the government called John Nichols to the witness stand. He agreed to cooperate with the government after pleading guilty for his involvement in the conspiracy. Nichols testified as to out–of–court statements made by Finch concerning Rickett's drug activity. Neither Rickett nor Finch testified. Rickett then introduced certified records of Finch's prior theft and narcotics convictions. Finch argued that the trial court had erred by admitting his prior convictions. He maintained that this was impermissible character evidence.

The court of appeals affirmed. Id at 613. It found that Finch was a hearsay declarant, and thus, his testimony could be treated as if he had taken the witness stand himself. It noted that the district court had properly instructed the jury that evidence of Finch's convictions could be used to discredit the accuracy of his out–of–court statements, but that the prior crimes could not be considered as evidence of Finch's guilt on the charges in the indictment. Id.

A different ruling was reached by the court in United States v. Robinson, 783 F.2d 64 (7th Cir. 1986). The court reaffirmed that a defendant in general is allowed to impeach the credibility of a non–testifying co–conspirator with evidence of prior crimes. Id at 67. However, the court noted that problems are created when the co–conspirator/declarant, whose credibility is subject to attack by evidence of prior crimes, is also a co–defendant. Under these circumstances, there is a danger that the prior crimes evidence will prejudice the co–defendant's presumption of innocence. Id. The court noted that such evidence is generally inadmissible to show the character or guilt of a co–defendant. Id.

To accommodate the competing interests, the court balanced the value to each co–defendant of being able to impeach the credibility of the others against the prejudice to each of having his criminal history displayed before the jury. Id. The court chose to protect the defendant's presumption of innocence by preventing the impeachment with evidence of prior convictions. Id.

Rule 806 can also be extremely helpful for the defense in many instances. For example, when the government introduces at trial statements of non–testifying co–conspirators, the defense should be able to introduce the co–conspirator's prior records to impeach their credibility. Also, when a state prosecutor introduces statements of a non–testifying domestic violence "victim" through a testifying law enforcement officer, Rule 90.806, Fla. R. Evid. (The state's counterpart to Fed. R. Evid. 806) may open the door to impeach that "victim's" credibility by permitting the introduction of not only his or her criminal history but also evidence of his or her bad reputation.


Of all the rules contained within the Federal Rules of Evidence, 806 can be one of the most devastating for defendants. It can be a landmine that explodes during trial and can significantly affect the verdict of your client's case. On the other hand, Rule 806 may serve as the vehicle to the introduction of impeachment evidence that could lead to an acquittal. Knowing of its existence and understanding how it can hurt or help your case is essential.

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