United States v. Morlang
531 F.2d 183 (1975)
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Rule of Law:
A party may not call a witness whose testimony it knows will be adverse for the primary purpose of impeaching that witness with a prior inconsistent statement, as this constitutes a mere subterfuge to introduce otherwise inadmissible hearsay evidence.
Facts:
- James F. Haught, the Director for West Virginia’s Federal Housing Administration (FHA) program, promoted a federal plan for low to moderate income housing projects.
- Fred Wilmoth, an insurance agent, attended Haught's presentation and later arranged a meeting between Haught, himself, and Theodore Morlang, a local banker and builder.
- Haught testified that during the meeting, the three men discussed generating illegal profits from the FHA projects and agreed to financially 'take care of' former Governor W. W. Barron.
- Morlang and Wilmoth denied that any discussion of illegal activities occurred at their meeting.
- Morlang subsequently launched seven FHA projects, partnering with Price Ballard and former Governor Barron on one called the Hanna Drive development.
- Haught alleged that he solicited a $2,000 bribe from Morlang, Wilmoth, Ballard, and Barron to expedite approval for the Hanna Drive project.
- Haught also claimed that Morlang had personally given him an $800 bribe on a separate occasion, which both Morlang and Wilmoth denied.
- While incarcerated together, Wilmoth allegedly made a statement to another inmate, Raymond Crist, implying that he took 'the rap' so that Morlang could 'stay out and take care of the business.'
Procedural Posture:
- Theodore Morlang was charged in a multi-count federal indictment with conspiracy to bribe a public official and with substantive acts of bribery.
- Co-defendant Fred Wilmoth pleaded guilty to bribery charges, and co-defendant Price Ballard entered a plea of nolo contendere to several counts.
- Prior to trial, Morlang filed a motion in the U.S. District Court to waive his right to a jury trial, citing extensive pre-trial publicity.
- The prosecution objected to the waiver, and the district court denied Morlang's motion.
- Following a jury trial, Morlang was acquitted on the substantive bribery counts but was convicted on the single count of conspiracy.
- Morlang, as appellant, appealed his conspiracy conviction to the United States Court of Appeals for the Fourth Circuit.
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Issue:
Does the prosecution engage in improper impeachment when it calls a witness it knows will provide exculpatory testimony for the sole purpose of introducing a prior inconsistent, inculpatory statement that would otherwise be inadmissible as hearsay?
Opinions:
Majority - Widener, Circuit Judge
Yes, the prosecution's action was improper. A party may not call a witness whose testimony is known to be adverse for the purpose of impeaching him, as this would permit the government to present testimony to the jury by indirection which would not otherwise be admissible. The government admitted it was not surprised by Wilmoth's testimony exonerating Morlang. Its only apparent purpose in calling him was to elicit a denial of the statement made to Crist, thereby creating a pretext to introduce Crist's testimony. This testimony, a conclusory statement of guilt, was inadmissible hearsay. Allowing its admission under the guise of impeachment is an impermissible subterfuge that risks convicting a defendant on the basis of unsworn, out-of-court statements, violating fundamental principles of fairness. While modern rules are relaxing the traditional bar on impeaching one's own witness, that flexibility does not extend to using impeachment as a device to place inadmissible evidence before the jury.
Dissenting - Butzner, Circuit Judge
No, the prosecution's actions were proper. The government did not call Wilmoth solely for the purpose of impeachment; his testimony was valuable for establishing and corroborating other circumstances of the conspiracy, including Morlang's business partnerships. The impeachment was only initiated after Wilmoth equivocated on the stand. The best-reasoned cases have abandoned the outdated rule that a party must vouch for its own witness's veracity, and courts should allow a party to impeach a witness, even without being surprised by the testimony. Furthermore, the use of Ballard's prior grand jury testimony was a proper exercise of the trial judge's discretion to impeach a recalcitrant and evasive witness whose trial testimony was inconsistent with his earlier, unequivocal statements.
Analysis:
This decision reinforces a crucial limitation on the modern trend of permitting a party to impeach its own witness, as later codified in Federal Rule of Evidence 607. The court establishes that the rule cannot be used as a 'subterfuge' to introduce otherwise inadmissible hearsay evidence to the jury under the guise of attacking a witness's credibility. The ruling serves as a check on prosecutorial tactics, preventing the government from calling a witness it knows will be unhelpful just to get a damaging out-of-court statement before the jury. This precedent is significant for protecting a defendant's right to be tried on sworn, substantive evidence rather than on unsworn hearsay, and it requires trial courts to examine the proponent's motive for calling the witness.
