(1) When a hearsay statement has been admitted in evidence, credibility of the declarant may be attacked and, if attacked, may be supported by any evidence that would be admissible for those purposes if the declarant had testified as a witness. Evidence of a statement or conduct by the declarant at any time inconsistent with the declarant’s hearsay statement is admissible, regardless of whether or not the declarant has been afforded an opportunity to deny or explain it.
(2) 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.
Attacking an "Invisible" Witness: This rule answers the question: if a hearsay statement is admitted, how can the opposing party challenge the credibility of the person who made the statement, since that person isn't in court to be cross-examined?
Core Principle: When an out-of-court statement is allowed into evidence, the person who made that statement (the "declarant") is treated as if they were a witness. This means their credibility is now fair game.
A lawyer can attack the unseen declarant's credibility using any of the standard impeachment tools, such as evidence of bias, poor character for truthfulness, or prior criminal convictions.
Special Rule for Inconsistent Statements: This rule provides a special power for impeachment. A lawyer can introduce evidence of another statement the declarant made that is inconsistent with the hearsay statement that was admitted. Crucially, the lawyer does not need to give the declarant an opportunity to explain or deny the inconsistency, because the declarant is not present in court.
Right to Cross-Examine: If the declarant is actually available, the party against whom the hearsay statement was used has the right to call that person to the stand and question them about the statement as if they were a hostile witness (i.e., using leading questions).
