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United States v. Webster - 734 F.2d 1191 (7th Cir. 1984)


Impeachment by prior inconsistent statement may not be permitted where employed as a mere subterfuge to get before the jury evidence not otherwise admissible.


Defendant was charged with aiding and abetting a robbery and receiving stolen funds. At trial, plaintiff government called the bank robber, who had pleaded guilty, as a witness against the defendant. The robber gave testimony that if believed would have exculpated the defendant, whereupon the government introduced prior inconsistent statements that the robber had given the Federal Bureau of Investigation inculpating the defendant. The defendant was convicted for aiding and abetting the bank robbery and receiving stolen bank funds. Although the court instructed the jury that it could consider the robber's statements only for purposes of impeachment, the defendant argued that the government should not have been allowed to get inadmissible evidence before the jury by calling a hostile witness and then using his out-of-court statements, which would otherwise have been inadmissible hearsay, to impeach him. On appeal, the court affirmed the defendant's conviction.


May the credibility of a witness be attacked by any party?




The court found that pursuant to Fed. R. Evid. 607, the credibility of a witness may be attacked by any party. The court held that it was quite plain that there was no bad faith by the prosecutor. Rule 607 of the Federal Rules of Evidence provides: "The credibility of a witness may be attacked by any party, including the party calling him." But it would be an abuse of the rule, in a criminal case, for the prosecution to call a witness that it knew would not give it useful evidence, just so it could introduce hearsay evidence against the defendant in the hope that the jury would miss the subtle distinction between impeachment and substantive evidence -- or, if it didn't miss it, would ignore it. The purpose would not be to impeach the witness but to put in hearsay as substantive evidence against the defendant, which Rule 607 does not contemplate or authorize. Thus, the defendant's conviction was affirmed.

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