IMPEACHING YOUR OWN WITNESS
WHO MAY IMPEACH [FED. R. EVID. RULE 607]
The credibility of a witness may be attacked by any party, including the party calling him, US v. Hagenstab, 575 F.2d 1035 (2d Cir.), cert. denied, 439 US 827 (1978); US v. Craig, 573 F.2d 513 (7th Cir. 1978); however, counsel may not lead his own witness. FED. R. EVID. Rule 611(c).
State “Voucher Rule” denied Defendant his Sixth Amendment right of compulsory process and right to cross-examine one’s own witness. Chambers v. Mississippi, 410 US 284 (1973) (holding defense counsel entitled to cross-examine witness regarding statements against interest even though hearsay and even though, in fact, impeaching witness was called by defense).
However, the prosecutor may not use a witness’ prior inconsistent statement for the primary purpose of getting otherwise inadmissible evidence before the jury. US v. Miller, 664 F.2d 94, 97 (5th Cir. 1981), cert. denied. 459 US 854 (1982) (emphasis added).
In US v. Hogan, 771 F.2d 82 (5th Cir. 1985), during a prosecution for conspiracy to import marijuana, the Government had called a witness for the “primary purpose” of impeaching him with inadmissible hearsay evidence. The Fifth Circuit refused to reverse the conviction on this ground because (1) no part of the witness’ testimony was applicable to the importation charge, which related to a prior, successful smuggling operation, and (2) the witness made no reference to that prior operation.
LEADING YOUR OWN WITNESS
LEADING QUESTIONS [FED. R. EVID. RULE 611(c)]
Rule 611(c) restricts “leading questions” to cross-examination unless “necessary to develop” the witness’ testimony, “a hostile witness, and adverse party, or witness identified with an adverse party.”
