70 The Alabama Lawyer 45 (2009). A Guide to Impeachment in Federal and Alabama State Courts.

• Author: BY TERRY McCARTHY

The Alabama Lawyer

2009.

70 The Alabama Lawyer 45 (2009).

A Guide to Impeachment in Federal and Alabama State Courts

A Guide to Impeachment in Federal and Alabama State CourtsBY TERRY McCARTHYAs long as we have had trials, the witnesses at those trials have been impeached. Some impeachment techniques, such as catching a witness in an inconsistency, have been around since the beginning of litigation as we know it. Other techniques, however, had their genesis in the 1975 adoption of the Federal Rules of Evidence.

Like most states, Alabama adopted evidentiary rules that were patterned after the Federal Rules. Alabama's Rules of Evidence went into effect on January 1, 1996 and most of them are identical to the Federal Rules. For those parallel rules, federal cases construing them are persuasive authority in the Alabama courts. Ala. R. Evid. 102, advisory committee notes. While there are many similarities between the Alabama and federal rules, there are also many differences. Some differences are obvious. Some are not so obvious. In addition, there are many impeachment techniques that are not codified under the rules, but that remain alive and well as impeachment techniques in Alabama and federal courts. The purpose of this article is to highlight the major impeachment techniques, and to note the major differences between the Alabama and Federal Rules of Evidence with regard to impeachment.

Who may impeach?

The threshold question to ask in any impeachment situation is who may actually impeach a witness? According to Rule 607 of both the Alabama and Federal Rules of Evidence, "[t]he credibility of a witness may be attacked by any party, including the party calling the witness." Fed. R. Evid. 607; Ala. R. Evid. 607 (emphasis added). In other words, in most circumstances, it is perfectly acceptable for an attorney to impeach the very witness he called. Before Rule 607 was adopted, the common law generally precluded a party from impeaching his own witness. See Fed. R. Evid. 607 & Ala. R. Evid 607 advisory committee notes. Rule 607 rejects this old "voucher rule," so that now a party is no longer expected to "vouch" for the credibility of the witnesses that the party chooses to call. Id.

There is at least one major exception to this rule. Despite the inviting language of Rule 607, a party is not allowed to impeach a witness if the sole purpose for calling that witness would be to impeach the witness with otherwise inadmissible evidence. Here is the most common scenario: suppose the prosecuting attorney obtained a witness statement from George in which George says that the defendant committed the crime. Before the trial, however, the prosecutor learns that George has recanted that statement and, if called at trial, he would testify that George did not commit the crime and is not guilty. Because George's prior statement is hearsay, the only way to get the statement admitted would be for the prosecutor to call George to the stand, knowing that he would provide unfavorable testimony, and then impeach him with the prior statement. Both Alabama and federal cases have held that this is impermissible - i.e., a party cannot call a witness solely to impeach that witness with otherwise inadmissible evidence. Litigants must have a good faith intention to elicit admissible evidence from every witness they call. As Judge Posner noted in the leading case of U.S. 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." Id. at 1192 (quoting U.S. v. Morlang, 531 F. 2d 183, 190 (4th Cir. 1975).

To summarize, it is acceptable for an attorney to impeach a witness who he calls, but he must have a good faith belief that the witness will likely say some things that will help his case. If the only reason for calling the witness is to admit otherwise inadmissible evidence, this "back door" approach is not allowed and the witness should not be called to begin with.

Impeachment by Prior Inconsistent Statements

While Rule 613 of both the Alabama and federal rules allows for impeachment via prior inconsistent statements, the foundations that are required are different under the two rules. It is not uncommon for even the most experienced trial lawyers to miss the foundational elements in Rule 613. Rule 613 answers two basic questions: (1) When can you examine a witness about a prior inconsistent statement? and (2) When can you use extrinsic evidence to prove the prior inconsistent statement? The answer to the first question is the same in Alabama and federal courts, but the answer to the second question is different.

When can you examine a witness about a prior inconsistent statement?

At common law, under the infamous Queen Caroline's Case, 2 Brod. & Bing. 284, 129 Eng. Rep. 976 (1820) and its progeny, before a witness could be impeached with an inconsistent writing, the witness had to be given the opportunity to read that writing. This longstanding common law requirement was abrogated with the passage of Rule 613(a) under Alabama and federal rules for both written and oral statements. See Fed. R. Evid. 613(a) and Ala. R. Evid. 613(a) advisory committee notes. Since the passage of Rule 613(a), a party can ask a witness about a prior inconsistent statement without first showing it to the witness or informing the witness of its...