Impeaching One’s Own Witness

Under the common law, which this country inherited, there was a rule of evidence called the “voucher rule.”  This rule prohibited a party from calling a witness only to impeach (call into question) the witness’s credibility.  The rule was given its namesake as it was said that a party “vouches” for his own witnesses.  Basically, no party should call a liar as a witness.  Why would a party wish to do such a thing?  Typically, the reason was to get prior inconsistent statements into the record and before the jury.  For example, imagine that Jane Smith previously told detectives that she saw Fred Jones shoot the victim.  Later, Jane changes her story and says that she saw the defendant shoot the victim.  If the State calls Jane to testify against the defendant at his trial for the murder, the defendant is easily permitted to question Jane about these earlier statements blaming the crime on Fred.

But if the State didn’t call Jane as a witness, should the defendant be able to call her and ask her about these statements concerning Fred?  The answer would be no under the voucher rule.  If Jane is called by the defendant and she testifies that she saw the defendant shoot the victim, defense counsel cannot inquire about the prior statements to let the jury hear that she once accused someone else of the crime.

While the voucher rule has been abrogated, the general premise remains and is currently located within Evidence Rule 607(A), which states:

“The credibility of a witness may be attacked by any party except that the credibility of a witness may be attacked by the party calling the witness by means of a prior inconsistent statement only upon a showing of surprise and affirmative damage. This exception does not apply to statements admitted pursuant to [some hearsay exceptions].”

As you will see, the real change between 607(A) and the old voucher rule is that a party may impeach its own witness concerning prior statements if (1) the trial testimony comes as a surprise, and (2) it does damage to that party’s case.  So if a witness pulls an about face and testifies contrary to what the party thought the witness was going to say, the attorney is allowed to then ask about the prior statements.  However, if the party is  aware before the trial that the witness has made conflicting statements, that party cannot call the witness merely to ask about prior, helpful statements as they wouldn’t have been surprised.

One nuance though comes by way of a 1973 U.S. Supreme Court case in Chambers v. Mississippi, where the court had determined that a defendant on trial for murdering a police officer had been deprived of his Due Process right to a fair trial when the old voucher rule was applied.  Chambers wished to call and examine another individual who had previously confessed to killing the officer – something fairly important in raising reasonable doubt in his case – and the trial court balked.  The U.S. Supreme Court held that Chambers’ due process right to a fair trial had been violated and reversed the conviction.

This idea that invocation of the voucher rule (or the modern rule of evidence) violates due process was recently argued in the felony murder case of State v. Wynn, 2014-Ohio-420.  So, did the defendant win?  The Second District said no.  Wynn had wished to call his co-defendant to the stand and ask him about earlier statements he had made to the police that would have helped Wynn’s theory of defense.  Although the state had reached a plea agreement with the co-defendant requiring him to testify truthfully against Wynn, the state never called the co-defendant (perhaps to keep the earlier statements from being elicited).    The trial court refused to allow Wynn to impeach his own witness because there was no surprise as he was well aware the co-defendant changed his story over time, which would violate 607(A).  But wouldn’t this be a violation of due process according to the Chambers decision?

The Second District said no.  The court distinguished Chambers on the grounds that the refusal to allow the defendant to impeach his own witness was only one of the problems at trial.  In addition, the trial court had not permitted, as a violation of the hearsay rule, other witnesses to testify that this other gentlemen had made incriminating statements.  Therefore, it was the entire nature of the trial that, when view in total, was so unfair as to violate Chambers’ due process right to a fair trial.  Wynn simply didn’t have the accumulation of evidentiary rulings that created such an unfair trial.  Moreover, notwithstanding the trial court’s ruling, Wynn was able to elicit much of the co-defendant’s prior, helpful statements anyway.  So, no harm, no foul in the end.

What to take away from this?  That Chambers can be useful, but it really was a fact-specific ruling.  A defendant will need to demonstrate multiple roadblocks set-up that prohibit a defendant from truly mounting a defense.  In such circumstances, the rulings may constitute a violation of due process when viewed under the totality of the circumstances. However, absent such a case, the rules of evidence will generally win out.

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