Impeachment of a Party's Own Witness, Fed.R.Evid. 607

Who May Impeach a Witness? Any party, including the party that called the witness, may attack the witness’s credibility. Pursuant to the common law's voucher rule, a party could not impeach a witness whom he had called. The ban extended to all forms of impeachment, including attack upon character for truthfulness, demonstration of untrustworthy partiality, and in many ways most importantly, use of prior inconsistent statements to neutralize destructive testimony. The prohibition against impeaching one's own witness was rationalized on three grounds: (1) a party morally binds himself to the statements of his witness; (2) a party guarantees or vouches for his witness' credibility; and (3) a party who has the power to impeach his witness can control that witness' testimony through coercion. After prolonged and vigorous attack by commentators, it became generally recognized that the traditional rationale supporting the voucher rule did not withstand analysis and that a party should generally be able to attack the credibility of his own witness. However, it was also recognized at the time the Federal Rules of Evidence were enacted that a party should not unnecessarily be able to place a prior statement of his witness that is not substantively admissible before the jury under the mere guise of impeachment, and that a jury, in spite of a limiting instruction, Fed.R.Evid. 105, would likely give substantive effect to prior inconsistent statements employed by a party to impeach his own witness. Prior to the adoption of the Federal Rules of Evidence, federal courts permitted impeachment of a party's own witness by prior inconsistent statements only where the witness' testimony both surprised and affirmatively damaged the calling party. The requirement of surprise and affirmative damage permitted a party to impeach his own witness when truly necessary. At the same time, the requirement prevented a party from calling a witness solely to place a substantively inadmissible prior inconsistent statement before the jury in the hope that the jury would disregard a limiting instruction and consider the statement as substantive evidence. The Federal Rules of Evidence, as originally proposed, would have eliminated any problem of a party's impeachment of his own witness by prior inconsistent statements. Proposed rule 801(d)(1)(A) provided that all prior statements inconsistent with testimony given by a witness during trial were defined as not hearsay. Accordingly, proposed rule 607 provided only that "[t]he credibility of a witness may be attacked by any party, including the party calling him." Since courts were to admit all prior inconsistent statements as substantive evidence, there was no need for a requirement of surprise and affirmative damage to prevent a calling party from using impeachment as a technique to place before the jury statements that were not substantively admissible. However, Fed.R.Evid. 801(d)(1)(A) as enacted by Congress limits prior inconsistent statements denominated as not hearsay to those "given under oath subject to the penalty of perjury at a trial, hearing, or other proceeding or in a deposition." This restriction as to prior inconsistent statements that are admissible as substantive evidence without any corresponding restriction of the right of a calling party under Fed.R.Evid. 607 to impeach his own witness again raises the problem of the calling party's potential misuse of impeachment by prior inconsistent statement. Two basic resolutions of this dilemma were offered, neither of which was subsequently adopted by the courts. It has been asserted that federal courts should meet the problem by continuing to require surprise and affirmative damage as a prerequisite for a party to impeach his own witness with a nonsubstantively admissible prior inconsistent statement. The requirement of surprise and damage does not depend on the voucher rule, which the Advisory Committee rejected in drafting Fed.R.Evid. 607, but has the independent justification that it prevents improper use of prior inconsistent statements under the guise of impeachment. Furthermore, Congress' unwillingness to permit the admission of all prior inconsistent statements as substantive evidence was motivated in part by a concern that juries might convict criminal defendants on the basis of unreliable prior inconsistent statements. Thus, reading Fed.R.Evid. 607 in the light of Fed.R.Evid. 801(d)(1)(A) and re imposing the requirement of surprise and affirmative damage especially in criminal cases when the Government seeks to impeach its own witness would further Congressional purpose in amending Fed.R.Evid. 801(d)(1)(A). Weinstein's Evidence & 607[01] at 607B20 (1987) recognized the problem created by the amendment of Fed.R.Evid. 801(d)(1)(A) without a corresponding change in Fed.R.Evid. 607, but suggested a different approach to its resolution: Instead of placing so much emphasis on the motive of the profferor, an approach more consistent with the underlying policy of the federal rules of evidence would be to analyze the problem in terms of Fed.R.Evid. 403 — is the probative value of the impeachment evidence outweighed by its prejudicial impact? Although no conclusive pattern has developed in the cases, not surprisingly, on balance, a literal interpretation of Fed.R.Evid. 607, with one important caveat, predominates over either surprise and affirmative damage or Fed.R.Evid. 403 balancing. The caveat is that impeachment of a party's own witness by means of a prior statement may not be employed as a "mere subterfuge" or for the "primary purpose of placing before the jury substantive evidence which is not otherwise admissible" when the party is aware prior to calling the witness that the witness will not testify consistent with the witness' prior statement. Application of the "mere subterfuge" or "primary purpose" caveat focuses upon the content of the witness' testimony as a whole. Thus, if the witness' testimony is helpful in establishing any fact of consequence significant in the context of the litigation, the witness may be impeached as to any other matter testified to by means of a prior inconsistent statement including matters the witness now simply claims not to recall. Contrast the requirements of surprise and affirmative damage which focus upon each segment of the witness' testimony rather than the witness' testimony taken as a whole. The "mere subterfuge" on "primary purpose" approach is clearly more favorable to the prosecution in a criminal case than either surprise and affirm above damage or Fed.R.Evid. 403 balancing.