They Don’t Get to Impeach Something They Knew They Were Going to Get

June 10, 2014
By Hanging Out with Carl Gunn


  • With limited exceptions, a prior inconsistent statement is admissible only for impeachment, which means only to cancel out the adverse answer being impeached.
  • It follows from this that a party can’t impeach a witness with a prior inconsistent statement if he knew the witness would give the adverse answer and the primary reason he called the witness was to introduce the prior inconsistent statement.
  • You can use this rule offensively as well as defensively, by warning the prosecutor ahead of time that the witness will give the adverse answer, so the prosecutor can’t say he didn’t know what was coming.


We all know the rule that you can impeach a witness with a prior inconsistent statement. We also all know the rule that the prior inconsistent statement – except in certain limited circumstances,see Fed. R. Evid. 801(d)(1)(A) – is not admissible as substantive evidence of the fact stated, but is admissible only to raise doubt about the inconsistent statement. As put in United States v. Ragghianti, 560 F.2d 1376 (9th Cir. 1977), “the maximum legitimate effect of the impeaching testimony can never be more than the cancellation of the adverse answer by which the party is surprised.” Id. at 1381 (quoting United States v. Cunningham, 446 F.2d 194, 197 (2d Cir. 1971)).

So what happens when the party isn’t surprised, i.e., the attorney knows ahead of time that the witness is going to give the adverse answer and the attorney is asking the question only to set up introduction of the prior inconsistent statement? Many prosecutors seem to think they’re still entitled to introduce the prior inconsistent statement even when they knew ahead of time the witness was going to give the adverse answer.

One of the evidence nuggets I ran across soon after I started as a Deputy Federal Public Defender says differently, though. After quoting the language from the Ragghianti case that I quote above, the court in United States v. Crouch, 731 F.2d 621 (9th Cir. 1984) held – actually, reiterated a prior holding – that “[a] party ‘is not permitted to get before the jury, under the guise of impeachment, an ex parte statement of [a] witness, by calling him to the stand when there is good reason to believe he will decline to testify as desired, and when in fact he only so declines.’” Id. at 623 (quoting Bushaw v. United States, 353 F.2d 477, 481 (9th Cir. 1965) and United States v. Kuhn, 24 F.2d 910, 913 (9th Cir. 1928)). The court acknowledged the rule that a party may impeach his own witness but noted, “Nevertheless, courts have repeatedly emphasized that the government must not ‘knowingly elicit testimony from a witness in order to impeach him with otherwise inadmissible testimony.’” Crouch, 731 F.2d at 624 (quoting United States v. DeLillo, 620 F.2d 939, 946 (2d Cir. 1980) and citing additional cases). The court then reiterated this rule in United States v. Gallardo-Gomez, 915 F.2d 553 (9th Cir. 1990), albeit with the caveat that the rule applies only if “the government examined the witness for the primary purpose of placing before the jury substantive evidence which is not otherwise admissible.” Id. at 555 (emphasis in original) (citing United States v. Hogan, 763 F.2d 697, 702 (5th Cir. 1985) and United States v. Peterman, 841 F.2d 1474, 1479 (10th Cir. 1988)). The court found such a primary purpose, and hence error, in both Crouch and Gallardo-Gomez, although it found the error to be harmless in Crouch. See Gallardo-Gomez, 915 F.2d at 555-56; Crouch, 731 F.2d at 624. Compare United States v. Gilbert, 57 F.3d 709, 711-12 (holding impeachment by prior inconsistent statements proper because witnesses not called for primary purpose of eliciting prior inconsistent statements).

You can use this evidence nugget in two ways. The most obvious is to look for reports in the discovery or other information the prosecutor has ahead of time, such as testimony in a pretrial hearing, that shows the witness is going to give an adverse answer. Then point that information out to both the prosecutor and the judge, so the issue is flagged ahead of time and the prosecutor can’t claim he or she overlooked the discovery or other information.

But think about going further. Use the rule as a sort of offensive weapon by creating the knowledge there will be an adverse answer. If you see a report suggesting a witness said something problematic, go out and interview the witness and ask the witness if he or she actually said what’s in the report. If the witness says he or she didn’t say what’s in the report, inform the prosecutor of that in a letter so the prosecutor knows ahead of time that the witness won’t say what’s in the report. I had one case in which I actually had the witness sign a declaration saying he didn’t say what was in the report and filed the declaration with the court prior to trial, so that a sworn denial was already on the record. I then argued that impeachment with the prior inconsistent statement was precluded, because the prosecutor knew darn well the witness wasn’t going to say what the prosecutor wanted.

As always, have fun. This is a great way to (1) counter agents twisting a witness’s statements in their reports and (2) see prosecutors get all hot and bothered when they don’t get what they want.