§ 22.03 Impeachment of Own Witness: FRE 607

• Jurisdiction: United States

§ 22.03 Impeachment of Own Witness: FRE 607

[A] Voucher Rule

At common law, a party could not impeach its own witnesses. This was known as the voucher rule and was based on the theory that, when a party calls a witness, that party vouches for the witness's veracity—i.e., a party should not hold the witness out as worthy of belief when the testimony is favorable, and then impeach credibility when the testimony is adverse.²⁶ Several exceptions to the voucher rule were recognized: (1) A party who was surprised by a turncoat witness was permitted to impeach that witness; some jurisdictions added a second requirement—affirmative damage.²⁷ (2) The voucher rule did not apply to court-called witnesses.²⁸ (3) Compulsory witnesses were also exempt; a typical example would be a will contest for which a statute requires all witnesses to the will to be called. (4) The voucher rule did not apply to the adverse party if called by the other side.

Rule 607 abolishes the "voucher rule." The rationale for the rule was never persuasive because the firsthand knowledge rule (Rule 602) requires percipient witnesses, and so the parties often have no choice regarding which witnesses to call. This is especially true with crimes or torts. If there are only a few witnesses who have personal knowledge, what choice do the parties have? Moreover, the continued validity of the voucher rule in criminal cases became suspect after Chambers v. Mississippi,²⁹ in which the Supreme Court held that the combined effect of Mississippi's voucher and hearsay rules precluded the admission of critical and reliable defense evidence and therefore violated due process.

[B] Problem: Prior Inconsistent Statements

The abolition of the voucher rule created one problem, which concerns impeachment with prior inconsistent statements. Prior inconsistent statements constitute hearsay (if offered for the truth) and thus are generally admissible only for impeachment, a nonhearsay purpose.³⁰ Thus, a party could call a hostile witness for the sole purpose of disclosing the prior inconsistent statement (hearsay) to the jury.³¹ An instruction limiting the use of the statement to impeachment would likely be ineffective. In short, Rule 607 could be employed to circumvent the hearsay rule.³²

Often, it is the prosecutor who uses this tactic after learning she has a turncoat witness on her hands.³³ The federal courts deal with this issue in a number of ways. Some focus on whether there is a subterfuge to get hearsay before...