NCJ Number
42198
Journal
Texas Law Review Volume: 55 Issue: 4 Dated: (MARCH 1977) Pages: 573-586
Date Published
1977
Length
14 pages
Annotation
THE CIRCUMSTANCES UNDER WHICH A PARTY MAY IMPEACH BY PRIOR INCONSISTENT STATEMENTS A WITNESS HE OR SHE CALLED TO THE STAND REMAINS AN ISSUE UNDER THE FEDERAL RULES OF EVIDENCE.
Abstract
RULE 607 CLEARLY ALLOWS A PARTY TO ATTACK THE CREDIBILITY OF HIS OR HER OWN WITNESS. SINCE RULE 801(D)(1)(A) DOES NOT PERMIT THE SUBSTANTIVE ADMISSION OF ALL PRIOR INCONSISTENT STATEMENTS, HOWEVER, THERE EXISTS A DANGER THAT A CALLING PARTY WILL ATTEMPT TO USE IMPEACHMENT AS A TECHNIQUE TO PLACE BEFORE A JURY PRIOR STATEMENTS THAT ARE NOT SUBSTANTIVELY ADMISSIBLE. IN AN EARLIER ARTICLE, THE AUTHOR ARGUED THAT FEDERAL COURTS SHOULD MEET THIS PROBLEM BY CONTINUING TO REQUIRE SURPRISE AND DAMAGE AS A PREREQUISITE FOR A PARTY TO IMPEACH HIS OR HER OWN WITNESS BY NONSUBSTANTIVELY ADMISSIBLE PRIOR INCONSISTENT STATEMENTS. THE NEW SUPPLEMENT TO 'WEINSTEIN'S EVIDENCE,' WHILE RECOGNIZING THE PROBLEM, SUGGESTS A DIFFERENT APPROACH: COURTS SHOULD APPLY RULE 403 TO BALANCE THE PROBATIVE VALUE OF THE IMPEACHING EVIDENCE AGAINST ITS PREJUDICIAL IMPACT. IN THIS ARTICLE, THE AUTHOR RESPONDS WITH A COMPARISON OF THE TWO ALTERNATIVE APPROACHES. HE POINTS OUT PRACTICAL DIFFICULTIES WITH A CASE-BY-CASE BALANCING OF COMPLEX FACTORS AND URGES THE USE OF ESTABLISHED COMMON LAW PRINCIPLES TO AID IN APPLYING THE GENERALITIES OF THE NEW RULES. (AUTHOR ABSTRACT)...ELW