Whitehurst v. Wright
592 F.2d 834 (5th Cir. 1979)

[Civil rights action under 42 U.S.C. 1983 against defendant city police officers.]

VANCE, J. Bernard Whitehurst was gunned down by Montgomery, Alabama police who mistook him for a suspect in a local robbery. The fatal shot was fired by police officer Donald Foster, who claims that Whitehurst shot first. Although none of the officers in the vicinity found a gun near the body, a detective subsequently called to the scene spotted a gun twenty-seven inches from the victim. It was later discovered that the gun had been confiscated by police in a drug raid occurring over one year prior to the Whitehurst shooting....


Mrs. Whitehurst contends that the trial court erroneously refused to allow her to impeach her own witness, in violation of Fed. R. Evid. 607. The witness, Detective Cecil Humphrey of the Montgomery Police Department, was called solely to establish whether he had fired the single spent round in the gun found next to Whitehurst's body. Humphrey denied that he had fired the gun, and Mrs. Whitehurst was aware that he would so testify. Nevertheless, she called him to the stand with the express purpose of impeaching him with an out of court statement made by Humphrey to his friend, Lt. J.C. Cunningham, to the effect that he had fired the gun.(1)6

While it is now proper for a party to impeach his own witness, Fed. R. Evid. 607, "impeachment by prior inconsistent statement may not be permitted where employed as a mere subterfuge to get before the jury evidence not otherwise admissible." Here the statement made to Cunningham is hearsay and is generally inadmissible for substantive purposes. Fed. R. Evid. 801(c), 802.(2)7 Mrs. Whitehurst asserts on appeal that she would have called Lt. Cunningham "to establish Humphrey's role concerning the pistol firing...." To use a prior inconsistent statement in that manner exceeds the scope of impeachment, and is an attempt to use hearsay evidence for substantive purposes. We do not believe that the [bnrules of evidence espouse such a revolutionary approach to circumvent the traditional principles of hearsay....

Do you agree with the court's conclusion? What arguments could you make for admissibility? Would the result be different if Detective Humphrey were named as a defendant in the case? If so, why should the result on the admissibility of this item of evidence turn on the formality of the pleadings? Would it make any difference if Detective Humphrey were dead? If so, why should this fortuity make a difference?

1. 6. The following colloquy took place prior to the direct examination of Humphrey:

Mr. Watkins:... we expect the evidence to show that Mr. Humphrey actually retrieved the gun from the scene and has reported to a J.C. Cunningham that he checked the gun at that point, saw that it had not been fired and fired the gun, one round, so that the gun would appear to have been fired at some point between the time he retrieved the gun at the scene and the time he arrived with the gun at police headquarters.

Mr. Black [defense counsel]: You deny that, don't you?

Mr. Humphrey: That's right, I don't know what he is talking about.

Mr. Watkins: Then we would like to call J.C. Cunningham behind him.

2. 7. Because the statement was offered only for impeachment purposes, we make no determination as to its admissibility under Fed. R. Evid. 803(24). But cf. Fed. R. Evid. 801(d)(1)(A)....


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