United States v. Hogan
763 F.2d 697 (1985)
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Rule of Law:
The prosecution may not call a witness it knows will provide exculpatory testimony for the primary purpose of introducing otherwise inadmissible prior inconsistent statements under the guise of impeachment.
Facts:
- Mark Carpenter, the pilot of Barry Hogan's airplane, was allegedly involved in a scheme to smuggle marijuana from Mexico into Texas.
- On October 30, 1979, Carpenter landed the airplane at a deserted airstrip in Mexico, where authorities found a large quantity of marijuana in a nearby truck.
- Carpenter was arrested by Mexican officials and shortly thereafter gave statements to them and to U.S. Drug Enforcement Agency (DEA) officials implicating himself and the Hogan brothers in the conspiracy.
- After being released from a Mexican prison, Carpenter was called to testify before a grand jury in a related case.
- Under a grant of immunity, Carpenter testified before the grand jury that his prior confessions were fabricated as a result of torture and that neither he nor the Hogans were involved in a drug conspiracy.
- The prosecutor in the Hogans' trial was aware that Carpenter had recanted his confession and would testify that the Hogans were innocent.
Procedural Posture:
- Barry Kendall Hogan and Mark Bradford Hogan were indicted in federal district court for importing marijuana and conspiracy.
- The Hogans filed a pre-trial motion in limine to address the admissibility of witness Mark Carpenter's testimony, which was denied.
- At trial, the Hogans objected to the government calling Carpenter, arguing it was an improper attempt to introduce impeachment evidence as substantive proof, but the court overruled the objection.
- The jury returned a verdict of guilty against both Hogan brothers.
- The Hogans (appellants) appealed their convictions to the United States Court of Appeals for the Fifth Circuit, challenging the trial court's evidentiary rulings.
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Issue:
Does the prosecution violate the Federal Rules of Evidence by calling a witness it knows will provide exculpatory testimony for the primary purpose of introducing the witness's prior inconsistent, inculpatory statements as impeachment evidence?
Opinions:
Majority - Clark, Chief Judge
Yes. The prosecution violates the Federal Rules of Evidence when its primary purpose for calling a witness is to place otherwise inadmissible substantive evidence before the jury through impeachment. While Federal Rule of Evidence 607 permits a party to impeach its own witness, this rule cannot be used as a subterfuge to circumvent the hearsay rule. Here, the prosecutor knew from Carpenter's prior sworn testimony before a grand jury and on voir dire that he would exculpate the Hogans. The prosecutor even announced this strategy to the jury in his opening statement. The government's asserted purpose for calling Carpenter—to link the Hogans to the crime—was not credible, as his expected testimony would achieve the opposite. The primary, if not sole, purpose was to introduce Carpenter's prior inculpatory statements, which are inadmissible hearsay, creating a substantial risk that the jury would improperly consider them as substantive evidence of guilt. This procedure constituted plain error affecting the defendants' substantial rights and requires reversal of their convictions.
Analysis:
This case establishes a crucial limitation on Federal Rule of Evidence 607, which allows parties to impeach their own witnesses. The court's 'primary purpose' test prevents the government from using impeachment as a mere pretext to introduce powerful hearsay evidence that would otherwise be inadmissible. This decision protects defendants from being convicted based on out-of-court statements that are not subject to cross-examination and are only supposed to be used to assess a witness's credibility. It forces prosecutors to have a legitimate, good-faith basis for calling a witness beyond simply wanting to air their prior inconsistent statements.
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