United States v. Morlang, 531 F.2d 183 

U.S. Court of Appeals for the Forth Circuit

1975

Chapter

5

Title

Evidence A Contemporary Approach

Page

112

Topic

Witnesses

Quick Notes

Subterfuge is not permitted to impeach witness

o         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 inadmissible.

Book Name

Evidence: A Contemporary Approach.  Sydney Beckman, Susan Crump, Fred Galves.  ISBN:  978-0-314-19105-2.

Issue

o         Whether the prosecution's can use of an out-of-court statement to elicit otherwise inadmissible impeachment testimony in order to avoid the hearsay rule?  No.

Procedure

District

o         Morlang was convicted for conspiracy to bribe the Directory of the Federal Housing Administration in connection with an FHA insured housing project.

Appellant

o         Vacated.  Case reversed and remanded for new trial.

Facts

Discussion

Key Phrases

Rules

Pl United States

Df Morlang (Appellant, He Appealed)

Party Description

o          Morlang was convicted for conspiracy to bribe the Directory of the Federal Housing Administration in connection with an FHA insured housing project.

Fred Wilmoth (Prosecutions First Witness)

o         The prosecution was fully aware that his testimony would tend to exonerate Morlang from participation in the bribery.

o         The real purpose for calling Wilmoth was apparently to elicit from him a denial that he had ever had any conversation with a fellow prisoner in which he implicated Morlang.

Wilmoth Alleged statement (Infer Morlangs guilt)

o         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.

o         It was a conclusory statement from which could only be inferred Morlang's guilt.

Hearsay Statement (Crists Alleged Statement to Wilmoth)

o         "One of us had to take the rap so the other one could stay out and take care of the business."

o         The "other one" was first identified by Crist as either Morlang or Haught, and immediately following as both of them.

o         Crist testified the statement was made while he and Wilmoth were fellow prisoners in jail.

o         Denial was obtained from Wilmoth.

Second Witness (Crist)

o         Crist was the man to whom the out-of-court statement was allegedly made.

o         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 Act.

o         The court permitted the testimony of Crist to be introduced only for the purpose of attacking the credibility of Wilmoth.

Appellant Court Trial Court Erred

o         The court erred in permitting the prior statement of Wilmoth to be introduced.

Rule

o         The party calling a witness does not vouch for his credibility.

o         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 impeaching him.

Presenting testimony by indirection (Not Allowed)

o         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.

Prosecution Argument

o         Urges that the introduction of this testimony was where some authorities have permitted a defendant under certain circumstances to impeach his own witness.

Court Rule 607. Who May Impeach

o         The credibility of a witness may be attacked by any party, including the party calling him."

Before Decisions (Misinterpreted Lineberger, Beyond its holding)

o         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.

Impeachment Rule - (Allowed, if witness if unruly or has been tampered with)

o         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 tampered with.

Impeachment Rule - (Not Allowed, if statement is subterfuge to get in inadmissible evidence)

o         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

o         [The validity] must be balanced against the notions of fairness upon which our system is based.

o         Among these concepts is the principle that men should not be allowed to be convicted on the basis of unsworn testimony.

Unsworn Statement Rule

o         Prior unsworn statements of a witness are mere hearsay and are, as such, generally inadmissible as affirmative proof.

Why it unsworn testimony inadmissible

o         The introduction of unsworn testimony, even where limited to impeachment, necessarily 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

o         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.

Court - In the instant case

o         The witness Wilmoth consistently adhered to his story that the appellant was not a participant in the bribery.

o         The prosecution admits this.

Getting the Alleged Statement

o         The only apparent purpose in calling him was to get before the jury the alleged statement made to Crist.

o         Clearly, the introduction of this testimony was damaging.

o         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

o         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 inadmissible.

Court Holding

o         Vacated.  Case reversed and remanded for new trial.

Rules

Subterfuge is not permitted to impeach witness

o         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 inadmissible

Rule 607. Who May Impeach

o         The credibility of a witness may be attacked by any party, including the party calling the witness.

Impeachment Rule - (Allowed, if witness if unruly or has been tampered with)

o         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 tampered with.

Impeachment Rule - (Not Allowed, if statement is subterfuge to get in inadmissible evidence)

o         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

Unsworn Statement Rule

o         Prior unsworn statements of a witness are mere hearsay and are, as such, generally inadmissible as affirmative proof.

Class Notes