US v. Webster case brief

1. US v. Webster (7th Cir 1984) – “abuse” of FRE 607
1. prosecutor doesn’t know what witness will say; she asked for a prelim examination outside presence of the jury, but Δ objected; thus, she calls witness hoping for the best and he says unfavorable things, so she impeaches the witness with prior inconsistent statements; Δ objects;
1. this situation depends on our assumption that the prior inconsistent statement is not admissible substantively but only to impeach.
2. cite to Morlang case – lawyer has interviewed a witness, and witness gave him a really good statement; a week before trial, witness seriously diluted the value of her statement and it’s inconsistent in some regard; the lawyer wants the jury to hear the prior inconsistent statement, even if the judge provides a limiting instruction saying it can only be used for impeachment, because he thinks the jury will use it substantively; lawyer looks to FRE 607, which says that you can impeach a witness that you call; he figures he’ll call the witness, she’ll give her inconsistent answer, and he’ll impeach her with her prior statement; figures that it goes to such a central issue that he can even prove the statement extrinsically.
1. courts will not allow it despite the language of 607 – they will consider it an abuse of that rule
2. ct in Webster says this would be an abuse of 607 in either a criminal or civil case
3. Webster and DeLillo say that if that’s all that’s going on, it should be excluded – but sometimes there is more to the story
3. lawyer didn’t have to forego calling witness because she was unsure.
1. she had a right to expect that he would tell the truth, and when he did not, she had a right to impeach him to preserve the case.
4. Posner’s example – say that witness has five facts in a statement, all of which were really good; by the time trial comes, witness remembers three of them in a way that are good and two in a way that are not good; the lawyer would like to elicit the three good facts and impeach the witness on the two statements that have changed
1. must lawyer accept the statement of the two bad facts, or can he ask about the three good ones and impeach on the two bad facts?
2. might say the lawyer can stop his questioning on direct, not asking about the bad facts.
• however, the opponent will surely bring up the bad facts on cross and it will look like the other lawyer was hiding something.
• even if opponent wasn’t going to bring out the bad facts, some stories will seem artificially shortened if only three facts are brought out and not the two – the jury might wonder why this lawyer so constrained the testimony, and he might suffer in the eyes of the jury.
3. Posner says in this case, lawyer isn’t in the Morlang category – lawyer is not behaving improperly by bringing out good facts and impeaching on the ones that are unhelpful.