Opinion
Case No. 3:05-cr-068.
February 15, 2006
ENTRY AND ORDER OVERRULING OBJECTION TO IMPEACHMENT EVIDENCE AND OVERRULING MOTION TO STRIKE TESTIMONY
The Court has previously ruled upon a motion objecting to the admission of impeachment questioning of a witness in this case, the Defendant's brother, Gregg Letner. Defendant objected that questioning Gregg Letner concerning an unsworn statement he made to a police officer after his arrest and a later sworn statement at his plea hearing concerning the identity of a second person who robbed banks with him would be unduly prejudicial. The Government countered with an assertion that Federal Rule of Evidence 613 provided for this line of questioning. The Court ruled that Federal Rule of Evidence 801(d)(1)(C) permitted Letner's answers as non-hearsay. The parties later approached the bench, clarified that both parties understood the questioning to be solely for the purposes of impeachment. The Court allowed the questioning as to the prior statement for the sole purpose of impeachment and so instructed the jury. Since that time, Defendant has further moved the Court to strike the entirety of Gregg Letner's testimony on the theory that he was called in bad faith for the sole purpose of placing non-probative impeachment evidence before the jury.
Rule 607 of the Federal Rules of Evidence provides that "[t]he credibility of a witness may be attacked by any party, including the party calling the witness." Fed.R.Evid. 607. One method of attacking the credibility of a witness is impeachment, whereby one shows that the witness has previously made a statement that is inconsistent with his present testimony. Even if that prior inconsistent statement would otherwise be inadmissible as hearsay, it may be admissible for the limited purpose of impeaching the witness.
At a criminal trial, however, there are limits on the Government's power to impeach its own witness by presenting his prior inconsistent statements. See United States v. Morlang, 531 F.2d 183 (4th Cir. 1975) and United States v. Shoupe, 548 F.2d 636 (6th Cir. 1977) (following Morlang). Morlang reversed a defendant's conviction for conspiracy to bribe and bribery because the Government had employed impeachment by prior inconsistent unsworn statement "as a mere subterfuge to get before the jury evidence not otherwise admissible." Id. at 190. According to Morlang and its progeny:
Federal evidence law does not ask the judge . . . to crawl inside the prosecutor's head to divine his or her true motivation. See 3 Jack B. Weinstein Margaret A. Berger, Weinstein's Evidence ¶ 607[01], at 607-20 (1993). Rather, in determining whether a Government witness' testimony offered as impeachment is admissible, or on the contrary is a "mere subterfuge" to get before the jury substantive evidence which is otherwise inadmissible as hearsay, a trial court must apply Federal Rule of Evidence 403 and weigh the testimony's impeachment value against its tendency to prejudice the defendant unfairly or to confuse the jury. See United States v. MacDonald, 688 F.2d 224, 234 (4th Cir. 1982) (citing and affirming United States v. MacDonald, 485 F. Supp. 1087, 1093-94 (E.D.N.C. 1979)); see also United States v. Webster, 734 F.2d 1191, 1193 (7th Cir. 1984) (stating that the defendant may "argue that the probative value of the evidence offered to impeach the witness is clearly outweighed by the prejudicial impact it might have on the jury, because the jury would have difficulty confining use of the evidence to impeachment") (citing Fed.R.Evid. 403).United States v. Ince, 21 F.3d 576, 580-81 (4th Cir. 1994). Rule 403 allows the trial judge to exclude relevant evidence "if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury. . . ." Fed.R.Evid. 403.
The Fourth Circuit has previously warned:
When the prosecution attempts to introduce a prior inconsistent statement to impeach its own witness, the statement's likely prejudicial impact often substantially outweighs its probative value for impeachment purposes because the jury may ignore the judge's limiting instructions and consider the "impeachment" testimony for substantive purposes. See MacDonald, 688 F.2d at 234 (citing Morlang, 531 F.2d at 190); State v. Hunt, 324 N.C. 343, 350, 378 S.E.2d 754, 758 (1989). That risk is multiplied when the statement offered as impeachment testimony contains the defendant's alleged admission of guilt. Thus, a trial judge should rarely, if ever, permit the Government to "impeach" its own witness by presenting what would otherwise be inadmissible hearsay if that hearsay contains an alleged confession to the crime for which the defendant is being tried. Cf. United States v. Brewer, 1 F.3d 1430, 1438-39 n. 2 (4th Cir. 1993) (Widener, J., dissenting) (citing Morlang, 531 F.2d at 190).Ince, 21 F.3d at 581.
The Court finds that Gregg Letner's prior inconsistent statements to the investigating police officer were not unduly prejudicial to Defendant David C. Letner. The jury was instructed at the conclusion of Gregg Letner's testimony that the statement to the police officer was admitted for impeachment purposes only. The Court therefore OVERRULES Defendant's objection to the impeachment of Gregg Letner with questions concerning Gregg Letner's prior unsworn statement to the police officer.
While the parties agree that this statement is only being admitted as non-probative impeachment, and the jury was instructed consistent with this agreement, the Court continues to believe that, because Gregg Letner admitted the prior statement, it could be admissible as probative evidence under Federal Rule of Evidence 801(d)(1)(C). Since the declarant was present for cross-examination, there would be no violation of the Confrontation Clause.
The Court further overrules David Letner's motion to strike the testimony of Gregg Letner on the allegation that Gregg Letner was called in bad faith. The Court notes that Gregg Letner provided a veritable plethora of probative evidence concerning the manner in which he and another individual carried out the bank robberies. Letner also testified freely concerning how the fruits of the crimes were utilized. Letner further provided probative evidence concerning how he spent considerable time in his brother's company during the period the robberies were being committed. Thus, the Court cannot conclude that the Government called Gregg Letner as a mere subterfuge for putting non-probative impeachment testimony before the jury.
The Court does find that the Government had doubts about Gregg Letner's willingness to testify concerning his brother's role in the alleged offenses. The Government undoubtedly had doubts concerning how many of the witnesses in this case who were not bank employees would testify. It satisfied itself with Gregg's ambiguous assurance that he was ready to testify, and did not probe into the more difficult question of whether he would identify his brother as the other robber.
The instant case is further distinguished from the Morlang line of cases in that the Government had probative impeachment evidence in the form of Gregg Letner's sworn guilty plea which it could introduce at trial. Even if the Government had called Gregg Letner for the sole purpose of introducing his guilty plea testimony as probative evidence after Gregg made an inconsistent statement from the witness box, this case would be distinct from Morlang.
As it is, the Court protected the rights of the accused by providing an instruction as to the limited use of Gregg Letner's prior unsworn statement and independently admissible evidence indicates that the statements were reliable. Wherefore, Defendant's motion to strike testimony is OVERRULED. DONE and ORDERED