Wilmoth Alleged statement (Infer Morlangs guilt)
The statement attributed to Wilmoth by Crist did not relate to
any of the facts of the case, or to the bribes, which are at the
heart of the controversy.
It was a conclusory statement from which could only be inferred
Hearsay Statement (Crists Alleged Statement to Wilmoth)
"One of us had to take the rap so the other one could stay out
and take care of the business."
The "other one" was first
identified by Crist as either
Morlang or Haught, and immediately following as both
Crist testified the statement was made while he and Wilmoth were
fellow prisoners in jail.
Denial was obtained from Wilmoth.
Second Witness (Crist)
Crist was the man to whom the out-of-court statement was
Crist was, at that time, an inmate at the federal correctional
institution, had spent more than half his adult life in prison
for grand larceny, auto theft, breaking and entering, and Dyer
The court permitted the testimony of Crist to be introduced only
for the purpose of attacking the
credibility of Wilmoth.
Trial Court Erred
The court erred in permitting the prior statement of Wilmoth to
The party calling a witness does not vouch for his credibility.
It has never been the rule that a party may call a witness where
his testimony is known to be adverse for the purpose of
Presenting testimony by indirection (Not
To so hold would permit the government, in the name of
impeachment, to present testimony to the jury by indirection
which would not otherwise be admissible.
Urges that the introduction of this testimony was where some
authorities have permitted a defendant under certain
circumstances to impeach his own witness.
Rule 607. Who May Impeach
The credibility of a witness may be attacked by any party,
including the party calling him."
Before Decisions (Misinterpreted Lineberger, Beyond its holding)
To interpret Lineberger as allowing the government in a criminal
prosecution to set up a straw man in order to impeach him
attaches significance to the opinion beyond its holding, which
is that if the district court erred in not allowing impeachment,
its error was harmless.
- (Allowed, if witness if unruly or has been tampered with)
Impeachment may be resorted to where a trial court, in its
discretion, determines that it is necessary to alleviate the
harshness of subjecting a party to the mercy of a witness who is
recalcitrant [unruly] or who may have been unscrupulously
- (Not Allowed, if statement is subterfuge to get in
Impeachment by a prior inconsistent statement
may not be permitted
where employed as a mere subterfuge [camouflage] to get before
the jury evidence not otherwise admissible
Balancing the Validity
[The validity] must be balanced against the notions of fairness
upon which our system is based.
Among these concepts is the principle that
men should not be allowed to be
convicted on the basis of unsworn testimony.
Unsworn Statement Rule
Prior unsworn statements of a witness are mere hearsay and are,
as such, generally inadmissible as affirmative proof.
Why it unsworn testimony inadmissible
The introduction of unsworn testimony, even where limited to
increases the possibility that a defendant may be convicted on
the basis of unsworn evidence, for despite proper
instructions to the jury, it is often difficult
for them to distinguish between
impeachment and substantive evidence.
Danger of Confusion
The danger of confusion which arises
from the introduction of testimony under
circumstances such as are presented here is so great as to upset
the balance and warrant continuation of the rule of exclusion.
- In the instant case
The witness Wilmoth consistently adhered to his story that the
appellant was not a participant in the bribery.
The prosecution admits this.
Getting the Alleged Statement
The only apparent purpose in calling him was to get before the
jury the alleged statement made to Crist.
Clearly, the introduction of this testimony was damaging.
To permit the government in this case to supply testimony which
was a naked conclusion as to Morlang's guilt in the name of
impeachment would be tantamount to permitting the use of hearsay
and would seriously jeopardize the important policies underlying
Justice Douglas' opinion in Bridges.
Subterfuge is not permitted to impeach witness
Despite the fact that impeachment of one's own witness may be
permitted, this does not go so far as to permit the use of the
rule as a subterfuge to get to the jury evidence otherwise
Vacated. Case reversed and remanded for new trial.