United States v. Clinton Webster, 734 F.2d 1191 (7th Cir. 1984). · Go Syfert
United States v. Clinton Webster, 734 F.2d 1191 (7th Cir. 1984). Cases Citing This Book View Copy Cite
“the good-faith standard strikes a better balance . . . .”
191 citation events (81 in the last 25 years) across 49 distinct courts.
Strongest positive: United States v. Burt, Charles (ca7, 2007-07-26)
Treatment trajectory · 1985 → 2026 · click a year to view as-of
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Top citers, strongest first. 50 distinct citers.
discussed Cited as authority (verbatim quote) United States v. Burt, Charles (2×) also: Cited as authority (rule)
7th Cir. · 2007 · quote attribution · 1 verbatim quote · confidence high
the good-faith standard strikes a better balance . . . .
discussed Cited as authority (verbatim quote) United States v. Burt (2×) also: Cited as authority (rule)
7th Cir. · 2007 · quote attribution · 1 verbatim quote · confidence high
the good-faith standard strikes a better balance....
discussed Cited as authority (rule) (HC) Miles v. Sullivan
E.D. Cal. · 2025 · confidence medium
See United States v. Gomez-Gallardo, 915 F.2d 553, 555 (9th Cir. 1990) ("[T]he government must not knowingly elicit testimony from a witness in order to 21 impeach him with otherwise inadmissible evidence."); United States v. Hogan, 763 F.2d 697, 702 (5th Cir. 1985) (“the prosecutor may not use such a statement under the guise of 22 impeachment for the primary purpose of placing before the jury substantive evidence which is 23 not otherwise admissible” (internal quotations omitted); United States v. Webster, 734 F.2d 1191, 1192 (7th Cir. 1984) (“it would be an abuse of the rule, in a cri…
cited Cited as authority (rule) Lewis v. Illinois Central Railroad Company
C.D. Ill. · 2023 · confidence medium
Passenger Corp., 920 F.2d 1372, 1376 (7th Cir. 1990) (quoting United States v. Webster, 734 F.2d 1191, 1192 (7th Cir. 1984)).
discussed Cited as authority (rule) State of Iowa v. Derris L. Swift
Iowa · 2021 · confidence medium
Parties should not “be put to the choice between the Scylla of forgoing impeachment and the Charybdis of not calling at all a witness from whom it expects to elicit genuinely helpful evidence.” United States v. Webster, 734 F.2d 1191, 1193 (7th Cir. 1984).
discussed Cited as authority (rule) Erfindergemeinschaft UroPep GbR v. Lilly
E.D. Tex. · 2017 · confidence medium
See United States v. Gomez-Gallardo, 915 F.2d 553, 555 (9th Cir. 1990) (“[T]he government must not' knowingly elicit testimony from a witness in order to impeach him with otherwise inadmissible evidence.”); United States v. Hogan, 763 F.2d 697, 702 (5th Cir. 1985); United States v. Webster, 734 F.2d 1191, 1192 (7th Cir. 1984); United States v. Miller, 664 F.2d 94, 97 (5th Cir. 1981); United States v. DeLillo, 620 F.2d 939, 946 (2d Cir. 1980); United States v. Pantone, 609 F.2d 675, 683 (3d Cir. 1979); United States v. Morlang, 531 F.2d 183, 190 (4th Cir. 1975) (“impeachment by prior inco…
discussed Cited as authority (rule) United States v. Michael Davis
7th Cir. · 2016 · confidence medium
We have long recognized, however, that it would be an abuse of Rule 607 for the prosecution to “call a witness that it knew would not give it useful evidence, just so it could introduce hearsay evidence against the defendant in the hope that the jury would miss the *290 subtle distinction between impeachment and substantive evidence — or, if it didn’t miss it, would ignore it.” United States v. Webster, 734 F.2d 1191, 1192 (7th Cir. 1984); see also United States v, Kane, 944 F.2d 1406, 1411 (7th Cir. 1991) (“Impeachment of one’s own witness cannot be permitted where employed as a m…
discussed Cited as authority (rule) Thomas Pustay v. State of Mississippi (2×)
Miss. Ct. App. · 2016 · confidence medium
In Carothers , the supreme court discussed the Seventh Circuit Court of Appeals case of United States v. Webster, 734 F.2d 1191, 1193 (7th Cir.1984): Argument similar to Wilkins's rationale was presented to the Seventh Circuit Court of Appeals in Webster .
discussed Cited as authority (rule) Collins v. State
Ala. Crim. App. · 2015 · confidence medium
Indeed, Collins was clearly attempting to present inadmissible hearsay through the guise of introducing that testimony as “impeachment evidence” and was doing so “‘in the hope that the jury would miss the subtle distinction between impeachment and substantive evidence.’” Burgin v. State, 747 So.2d 916, 919 (Ala.Crim.App.1999) (quoting United States v. Webster, 734 F.2d 1191, 1192 (7th Cir.1984)).
discussed Cited as authority (rule) Anthony Carothers v. State of Mississippi
Miss. · 2014 · confidence medium
Because Federal Rule 607 did away with the voucher rule, federal courts have recognized that “Rule 607 also did away with the exceptions used to get around the voucher rule.” Id. (citing Walker, 798 A.2d at 1231 ; United States v. Ienco, 92 F.3d 564, 568 (7th Cir.1996); United States v. Kane, 944 F.2d 1406, 1412 (7th Cir.1991); United States v. Webster, 734 F.2d 1191, 1193 (7th Cir.1984); Robinson v. Watts Detective Agency, Inc., 685 F.2d 729, 740 (1st Cir.1982); United States v. DeLillo, 620 F.2d 939, 946-47 (2d Cir.1980); United States v. Dennis, 625 F.2d 782 , 795 n. 6 (8th Cir.1980); S…
cited Cited as authority (rule) Hillmann v. City of Chicago
N.D. Ill. · 2014 · confidence medium
Passenger Corp., 920 F.2d 1372, 1376 (7th Cir.1990) (quoting United States v. Webster, 734 F.2d 1191, 1192 (7th Cir.1984)).
discussed Cited as authority (rule) State Of Washington, V Jake Christopher Cohen
Wash. Ct. App. · 2014 · confidence medium
Because the prosecutor did not act improperly, Cohen' s argument fails. 4 In Lavaris, our Supreme Court endorsed a federal court' s rationale: I]t would be an abuse of the rule for the prosecution to call a witness that it knew would not give it useful evidence, just so it could introduce hearsay evidence against the defendant in the hope that the jury would miss the subtle distinction between impeachment and substantive evidence...." 106 Wn.2d at 344 -45 ( quoting United States v. Webster, 734 F.2d 1191, 1192 ( 7th Cir. 1984) Given this rationale, considering FED.
discussed Cited as authority (rule) Commonwealth v. Maldonado
Mass. · 2014 · confidence medium
It is not clear whether the prosecutor’s sole reason to call Castellon to testify was to elicit Rivera’s hearsay statement, but it is likely that what the jury primarily took from her testimony was that Rivera had told her that he saw the defendant shoot the victim. “[I]t would be an abuse of the rule, in a criminal case, for the prosecution to call a witness that it knew would not give it useful evidence, just so it could introduce hearsay evidence against the defendant in the hope that the jury would miss the subtle distinction between impeachment and substantive evidence — or, if it…
discussed Cited as authority (rule) Sumaira Urooj v. Eric Holder, Jr. (2×)
9th Cir. · 2013 · confidence medium
HOLDER 9 evidence with substantive evidence.4 See, e.g., United States v. Webster, 734 F.2d 1191, 1192 (7th Cir. 1984) (emphasizing “subtle distinction between impeachment and substantive evidence”); Robert E.
discussed Cited as authority (rule) Simmonds v. People
virginislands · 2013 · confidence medium
See, e.g., United States v. Gome-Gallardo, 915 F.2d 553, 555 (9th Cir. 1990); United States v. Peterman, 841 F.2d 1474, 1479 (10th Cir. 1988); United States v. Webster, 734 F.2d 1191, 1192 (7th Cir. 1984).
discussed Cited as authority (rule) Na-Son D. Smith v. State of Indiana
Ind. Ct. App. · 2013 · confidence medium
Although Indiana Rule of Evidence 607 authorizes a party to impeach the credibility of its own witness, “the rule is abused if the party is permitted to call a co-defendant as a witness, when the party knows that the co-defendant will not give useful evidence, just so the party can introduce otherwise inadmissible hearsay evidence against the defendant, ‘in the hope that the jury would miss the subtle distinction between impeachment and substantive evidence – or, if it didn’t miss it, would ignore it.’” Julian v. State, 811 N.E.2d 392, 397 (Ind. Ct. App. 2004) (quoting U.S. v. Webs…
discussed Cited as authority (rule) Jacob Fuller v. State of Indiana
Ind. Ct. App. · 2013 · confidence medium
Although Indiana Rule of Evidence 607 authorizes a party to impeach the credibility of its own witness, “the rule is abused if the party is permitted to call a co-defendant as a witness, when the party knows that the co-defendant will not give useful evidence, just so the party can introduce otherwise inadmissible hearsay evidence against the defendant, ‘in the hope that the jury would miss the subtle distinction between impeachment and substantive evidence – or, if it didn’t miss it, would ignore it.’” Julian v. State, 811 N.E.2d 392, 397 (Ind. Ct. App. 2004) (quoting U.S. v. Webs…
examined Cited as authority (rule) James v. State (3×) also: Cited "see", Cited "see, e.g."
Miss. Ct. App. · 2013 · confidence medium
See Walker, 798 A.2d at 1231 (citing United States v. Ienco, 92 F.3d 564, 568 (7th Cir.1996); United States v. Kane, 944 F.2d 1406, 1412 (7th Cir.1991); United States v. Webster, 734 F.2d 1191, 1193 (7th Cir.1984); Robinson v. Watts Detective Agency, Inc., 685 F.2d 729, 740 (1st Cir.1982); United States v. DeLillo, 620 F.2d 939, 946-47 (2d Cir.1980); United States v. Dennis, 625 F.2d 782 , 795 n. 6 (8th Cir.1980); Scholz Homes, Inc. v. Wallace, 590 F.2d 860, 863 (10th Cir.1979); United States v. Palacios, 556 F.2d 1359, 1363 (5th Cir.1977); United States v. Long Soldier, 562 F.2d 601 , 605 n. …
discussed Cited as authority (rule) State v. Lopez
N.M. · 2011 · confidence medium
See United States v. Logan, 121 F.3d 1172, 1174-75 (8th Cir.1997) (“Courts must be watchful that impeachment is not used as a subterfuge to place otherwise inadmissible hearsay before the jury.” (internal quotation marks and citation omitted)); United States v. Webster, 734 F.2d 1191, 1192 (7th Cir.1984) (“[I]t would be an abuse of the rule [permitting impeachment], in a criminal case, for the prosecution to call a witness that it knew would not give it useful evidence, just so it could introduce hearsay evidence against the defendant in the hope that the jury would miss the subtle disti…
discussed Cited as authority (rule) State v. Gabriel
N.C. Ct. App. · 2010 · confidence medium
Based on the foregoing, we conclude that the circumstances in this case indicate that the State called Brown to testify in good faith and not as a subterfuge to put Brown’s out-of-court statements before the jury “in the hope that the jury would miss the subtle distinction between impeachment and substantive evidence[.]” Id. at 349-50 , 378 S.E.2d at 758 (quoting United States v. Webster, 734 F.2d 1191, 1192 (7th Cir. 1984)).
discussed Cited as authority (rule) State v. Johnson
Vt. · 2008 · confidence medium
In general, the State should not be permitted to circumvent a criminal defendant’s decision of whether to place his own credibility in issue by introducing a defendant’s statement and then impeaching that *579 statement. 2 Cf. United States v. Morlang, 531 F.2d 183, 190 (4th Cir. 1975) (holding that impeachment by the calling party is impermissible “where employed as a mere subterfuge to get before the jury evidence not otherwise admissible”); United States v. Webster, 734 F.2d 1191, 1192 (7th Cir. 1984) (noting that although Morlang is a prerules case, its limitation on the prosecutor…
discussed Cited as authority (rule) United States v. Letner (2×) also: Cited "see"
6th Cir. · 2008 · confidence medium
United States v. Webster, 734 F.2d 1191, 1192 (7th Cir.1984).
discussed Cited as authority (rule) United States v. Cisneros-Gutierrez
5th Cir. · 2008 · confidence medium
See, e.g., United States v. Ince, 21 F.3d 576, 581 (4th Cir.1994) ("Unlike the classic 'turncoat' witness, Neumann certainly had not shocked the Government with her 'loss of memory' at the second trial, as she had made it plain during the first trial that she would not readily testify to the alleged confession of her friend, Nigel Ince.” (emphasis added)); United States v. Zackson, 12 F.3d 1178, 1184 (2d Cir.1993) ("The voir dire of Zackson demonstrated conclusively that Zackson would offer no testimony probative of the conspiracy.”); Johnson, 802 F.2d at 1467 ("[I]l was entirely inappropr…
discussed Cited as authority (rule) Edwards v. State
Del. · 2007 · confidence medium
Id. at 667 (citing U.S. v. Webster, 734 F.2d 1191, 1192 (7th Cir.1984)) (permitting evidence for impeachment purposes, despite defendant’s claim that statements were hearsay, because the prosecutor acted in good faith). 65 .
discussed Cited as authority (rule) United States v. Libby (2×) also: Cited "see, e.g."
D.D.C. · 2007 · confidence medium
See, e.g., United States v. Carter, 973 F.2d 1509, 1512 (10th Cir.1992); United States v. Webster, 734 F.2d 1191, 1192 (7th Cir.1984); United States v. Miller, 664 F.2d 94, 97 (5th Cir.1981) (noting that the prosecution may not utilize prior inconsistent statements for the primary purpose of exposing the jury to otherwise inadmissible evidence).
discussed Cited as authority (rule) Evans v. Verdini
1st Cir. · 2006 · confidence medium
See, e.g., United States v. Gilbert, 57 F.3d 709, 711 (9th Cir.1995) (“‘[T]he government must not knowingly elicit testimony from a witness in order to impeach him with otherwise inadmissible testimony.’ ” (quoting United States v. Gomez-Gallardo, 915 F.2d 553, 555 (9th Cir.1990))); United States v. Patterson, 23 F.3d 1239, 1245 (7th Cir.1994) (“[T]he prosecution may not ‘call a witness that it [knows will] not give it useful evidence, just so it [can] introduce hearsay evidence against the defendant in the hope that the jury [will] miss the subtle distinction between impeachment a…
discussed Cited as authority (rule) Commonwealth v. Melo
Mass. App. Ct. · 2006 · confidence medium
The rule is designed to discourage manipulation of the right to offer hearsay for impeachment purposes by calling a witness with no meaningful testimony to give and impeaching her “in the hope that the jury would miss the subtle distinction between impeachment and substantive evidence — or, if it didn’t miss it, would ignore it.” Commonwealth v. Benoit, supra at 115-116 , quoting from United States v. Webster, 734 F.2d 1191, 1192 (7th Cir. 1984).
discussed Cited as authority (rule) United States v. Clifton (2×)
10th Cir. · 2005 · confidence medium
See, e.g., United States v. Zackson, 12 F.3d 1178, 1184 (2d Cir.1993); United States v. Miller, 664 F.2d 94, 97 (5th Cir.1981); United States v. Webster, 734 F.2d 1191, 1192 (7th Cir.1984).
discussed Cited as authority (rule) Julian v. State
Ind. Ct. App. · 2004 · confidence medium
However, the rule is abused if the party is permitted to call a co-defendant as a witness, when the party knows that the co-defendant will not give useful evidence, just so the party can introduce otherwise inadmissible hearsay evidence against the defendant, "in the hope that the jury would miss the subtle distinction between impeachment and substantive evidence- or, if it didn't miss it, would ignore it." Id. (quoting U.S. v. Webster, 734 F.2d 1191, 1192 (7th Cir.1984)).
discussed Cited as authority (rule) United States v. Karsten Buffalo
8th Cir. · 2004 · confidence medium
See, e.g., United States v. Peterman, 841 F.2d 1474, 1479 (10th Cir.1988); United States v. Frappier, 807 F.2d 257, 259 (1st Cir.1986); United States v. Johnson, 802 F.2d 1459, 1466 (D.C.Cir.1986); United States v. Sebetich, 116 F.2d 412, 429 (3d Cir.1985); United States v. Webster, 734 F.2d 1191, 1192 (7th Cir.1984); United States v. Crouch, 731 F.2d 621, 624 (9th Cir.1984); United States v. Fay, 668 F.2d 375, 379 (8th Cir.1981); United States v. Miller, 664 F.2d 94, 97 (5th Cir.1981); United States v. DeLillo, 620 F.2d 939, 946 (2d Cir.1980); Whitehurst v. Wright, 592 F.2d 834, 839 (5th Cir.…
discussed Cited as authority (rule) United States v. Karsten Buffalo
8th Cir. · 2004 · confidence medium
Cir. 1986); United States v. Sebetich, 776 F.2d 412, 429 (3d Cir. 1985); United States v. Webster, 734 F.2d 1191, 1192 (7th Cir. 1984); United States v. Crouch, 731 F.2d 621, 624 (9th Cir. 1984); United States v. Fay, 668 F.2d 375, 379 (8th Cir. 1981); United States v. Miller, 664 F.2d 94, 97 (5th Cir. 1981); United States v. DeLillo, 620 F.2d 939, 946 (2d Cir. 1980); Whitehurst v. Wright, 592 F.2d 834, 839 (5th Cir. 1979).
discussed Cited as authority (rule) Walker v. State
Md. Ct. Spec. App. · 2002 · confidence medium
See Robinson v. Watts Detective Agency, Inc., 685 F.2d 729, 740 (1st Cir.1982), cert. denied, 459 U.S. 1105 , 103 S.Ct. 728 , 74 L.Ed.2d 953 (1983); United States v. DeLillo, 620 F.2d 939, 946-47 (2d Cir.), cert. denied, 449 U.S. 835 , 101 S.Ct. 107 (1980); United States v. Palacios, 556 F.2d 1359, 1363 (5th Cir.1977); United States v. Webster, 734 F.2d 1191, 1193 (7th Cir.1984); United States v. Dennis, 625 F.2d 782 , 795 n. 6 (8th Cir.1980); United States v. Long Soldier, 562 F.2d 601 , 605 n. 3 (8th Cir.1977); Scholz Homes, Inc. v. Wallace, 590 F.2d 860, 863 (10th Cir.1979).
discussed Cited as authority (rule) Burgin v. State
Ala. Crim. App. · 2002 · confidence medium
Id.’ “United States v. Gilbert, 57 F.3d 709, 711 (9th Cir.), cert. denied, 515 U.S. 1110 , 115 S.Ct. 2264 , 132 L.Ed.2d 269 (1995). ‘It would be an abuse of the rule ... for the prosecution to call a witness that it [knows mil] not give it useful evidence, just so it [can] introduce hearsay evidence against the defendant in the hope that the jury would miss the subtle distinction between impeachment and substantive evidence ....’ United States v. Webster, 734 F.2d 1191, 1192 (7th Cir.1984).
discussed Cited as authority (rule) ca3 2001
3rd Cir. · 2001 · confidence medium
They argue that the government intentionally put Joseph on the stand in order to make Detective Cruz' hearsay statements admissible through impeachment, which constituted misconduct because impeachment "may not be permitted where employed as a mere subterfuge to get before the jury evidence not otherwise admissible." United States v. Webster, 734 F.2d 1191, 1192 (7th Cir. 1984).
discussed Cited as authority (rule) United States v. Lopez
3rd Cir. · 2001 · confidence medium
They argue that the government intentionally put Joseph on the stand in order to make Detective Cruz’ hearsay statements admissible through impeachment, which constituted misconduct because impeachment “may not be permitted where employed as a mere subterfuge to get before the jury evidence not otherwise admissible.” United States v. Webster, 734 F.2d 1191, 1192 (7th Cir. 1984).
discussed Cited as authority (rule) James v. State
Fla. Dist. Ct. App. · 2000 · confidence medium
Further, in view of the fact that the prosecution *766 in the instant case had Roosevelt Brown available at trial and was prepared to call him upon eliciting Jones' testimony that he had no recollection, we find it unlikely that the prosecution was surprised by Jones' testimony. [2] In summary, because the prosecution was apparently not surprised by Jones' trial testimony, because impeaching Jones' testimony was of de minimis substantive value, and because Jones' trial testimony was not affirmatively harmful to the prosecution's case, we find no evidentiary basis in the record to support any i…
discussed Cited as authority (rule) Impson v. State (2×)
Ind. Ct. App. · 2000 · confidence medium
Impson refers us to Seventh Circuit cases which, in interpreting the federal counterpart of EvuLR. 607, have held that it would be an abuse of the rule for a prosecutor to call a codefendant as a witness who he knew would not give useful evidence, just so the prosecutor could introduce otherwise inadmissible hearsay evidence against the defendant “in the hope that the jury would miss the subtle distinction between impeachment and substantive evidence — or, if it didn’t miss it, would ignore it.” U.S. v. Webster, 734 F.2d 1191, 1192 (7th Cir.1984).
examined Cited as authority (rule) Hughes v. State (4×)
Tex. Crim. App. · 1999 · confidence medium
These courts have unanimously held that "impeachment by pri- or inconsistent statement may not be permitted where employed as a mere subterfuge to get before the jury evidence not otherwise admissible.” Whitehurst v. Wright, 592 F.2d 834, 839 (5th Cir.1979) (quoting United States v. Morlang, 531 F.2d 183, 190 (4th Cir.1975)); United States v. Johnson, 802 F.2d 1459, 1466 (D.C.Cir.1986); Accord United States v. Peterman, 841 F.2d 1474, 1479 (10th Cir.1988), cert. denied, 488 U.S. 1004 , 109 S.Ct. 783 , 102 L.Ed.2d 774 (1989); United States v. Frappier, 807 F.2d 257, 259 (1st Cir.1986), cert. …
discussed Cited as authority (rule) Thurman v. Commonwealth (2×)
Ky. · 1998 · confidence medium
As noted in United States v. Webster, 734 F.2d 1191, 1192 (7th Cir.1984): It would be an abuse of [Federal Rule of Evidence 607], in a criminal case, for the prosecution to call a witness that it knew would not give it useful evidence, just so it could introduce hearsay evidence against the defendant in the hope that the jury would miss the subtle distinction between impeachment and substantive evidence—or, if it didn't miss it, would ignore it.
discussed Cited as authority (rule) Pickett v. State
Md. Ct. Spec. App. · 1998 · confidence medium
Rule 5-403; 2 see also United States v. Webster, 734 F.2d 1191, 1193 (7th Cir.1984) (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 the use of the evidence to impeachment”).
discussed Cited as authority (rule) United States v. Paul David Logan
8th Cir. · 1997 · confidence medium
See, e.g., United States v. Ince, 21 F.3d 576, 580 (4th Cir.1994); United States v. Webster, 734 F.2d 1191, 1193 (7th Cir.1984); and United States v. DeLillo, 620 F.2d 939, 944, 946-47 (2d Cir.1980), cert. denied, 449 U.S. 835 , 101 S.Ct. 107 , 66 L.Ed.2d 41 (1980).
cited Cited as authority (rule) Commonwealth v. McGee
Mass. App. Ct. · 1997 · confidence medium
See United States v. Morlang, 531 F.2d 183, 188-190 (4th Cir. 1975); United States v. Webster, 734 F.2d 1191, 1192 (7th Cir. 1984).
discussed Cited as authority (rule) United States v. Joseph Ienco
7th Cir. · 1996 · confidence medium
The abolition of the rule is not recent, Fed.R.Evid. 607, Notes of Advisory Comm.; Chambers v. Mississippi 410 U.S. 284 , 296 n. 9, 93 S.Ct. 1038 , 1046 n. 9, 35 L.Ed.2d 297 (1973); Nelson v. Farrey, 874 F.2d 1222, 1227 (7th Cir.1989); United States v. Webster, 734 F.2d 1191, 1193 (7th Cir.1984); United States v. Frappier, 807 F.2d. 257, 259 (1st Cir.1986); United States v. Hogan, 763 F.2d 697, 702 (5th Cir.1985), and we cannot understand the district judge’s attempting to enforce it.
discussed Cited as authority (rule) State v. Wood (2×)
Idaho Ct. App. · 1994 · confidence medium
See, e.g., United States v. Gomez-Gallardo, 915 F.2d 553 (9th Cir.1990); United States v. Peterman, 841 F.2d 1474, 1479-80 (10th Cir.1988); United States v. Hogan, 763 F.2d 697, 702 (5th Cir.1985); United States v. Webster, 734 F.2d 1191, 1192 (7th Cir.1984); United States v. Miller, 664 F.2d 94, 97 (5th Cir.), cert. denied, 459 U.S. 854 , 103 S.Ct. 121 , 74 L.Ed.2d 106 (1981); United States v. Fay, 668 F.2d 375, 379 (8th Cir.1981); 1 McCORMICK ON EVIDENCE § 38 at 129.
cited Cited as authority (rule) United States v. Mark A. Patterson
7th Cir. · 1994 · confidence medium
United States v. Webster, 734 F.2d 1191, 1192 (7th Cir.1984).
discussed Cited as authority (rule) United States v. Nigel D. Ince (2×) also: Cited "see, e.g."
4th Cir. · 1994 · confidence medium
United States v. Webster, 734 F.2d 1191, 1192 (7th Cir.1984). 4 .
discussed Cited as authority (rule) Bradley v. State
Md. · 1994 · confidence medium
Moreover, apparently the only reason the State sought to introduce the prior inconsistent statement was its belief that the jury would be swayed by the statement when determining guilt, or innocence. 5 See United States v. Webster, 734 F.2d 1191, 1192 (7th Cir.1984) (“[I]t would be an abuse of the [impeachment] rule, in a criminal case, for the prosecution to call a witness that it knew would not give it useful evidence, just” so it could introduce hearsay evidence against the defendant in the hope that the jury would miss the subtle distinction between impeachment and substantive evi denc…
cited Cited as authority (rule) United States v. David J. Shields and Pasquale F. Deleo
7th Cir. · 1993 · confidence medium
United States v. Webster, 734 F.2d 1191, 1192 (7th Cir.1984).
cited Cited as authority (rule) Howard C. Medley, Sr. v. United States
7th Cir. · 1993 · confidence medium
United States v. Webster, 734 F.2d 1191, 1192 (7th Cir.1984).
discussed Cited as authority (rule) State v. Minter (2×)
N.C. Ct. App. · 1993 · confidence medium
Id. at 349-50 , 378 S.E.2d at 758 (quoting United States v. Webster, 734 F.2d 1191, 1192 (7th Cir. 1984)).
UNITED STATES of America, Plaintiff-Appellee,
v.
Clinton WEBSTER, Defendant-Appellant
82-2195.
Court of Appeals for the Seventh Circuit.
May 9, 1984.
734 F.2d 1191
Richard Doyle, Danville, Ill., for defendant-appellant., Frances C. Hulin, Asst. U.S. Atty., Danville, Ill., for plaintiff-appellee.
Eschbach, Posner, Coffey.
Cited by 116 opinions  |  Published
POSNER, Circuit Judge.

The defendant, Webster, was convicted of aiding and abetting the robbery of a federally insured bank and receiving stolen bank funds, was sentenced to nine years in prison, and appeals. Only one issue need be discussed. The government called the bank robber, King (who had pleaded guilty and been given a long prison term), as a witness against Webster. King gave testimony that if believed would have exculpated the defendant, whereupon the government introduced prior inconsistent statements that King had given the FBI inculpating Webster. Although the court instructed the jury that it could consider the statements only for purposes of impeachment, Webster argues that this was not good enough, that the government should not be allowed to get inadmissible evidence before the jury by calling a hostile witness and then using his out-of-court statements, which would otherwise be inadmissible hearsay, to impeach him.

Rule 607 of the Federal Rules of Evidence provides: “The credibility of a witness may be attacked by any party, including the party calling him.” But it would be an abuse of the rule, in a criminal case, for the prosecution to call a witness that it knew would not give it useful evidence, just so it could introduce hearsay evidence against the defendant in the hope that the jury would miss the subtle distinction between impeachment and substantive evidence — or, if it didn’t miss it, would ignore it. The purpose would not be to impeach the witness but to put in hearsay as substantive evidence against the defendant, which Rule 607 does not contemplate or authorize. We thus agree that “impeachment by prior inconsistent statement may not be permitted where employed as a mere subterfuge to get before the jury evidence not otherwise admissible.” United States v. Morlang, 531 F.2d 183, 190 (4th Cir.1975). Although Morlang was decided before the Federal Rules of Evidence became effective, the limitation that we have quoted on the prosecutor’s rights under Rule 607 has been accepted in all circuits that have considered the issue. See, e.g., United States v. Miller, 664 F.2d 94, 97 (5th Cir.1981); United States v. DeLillo, 620 F.2d 939, 946 (2d Cir.1980); Whitehurst v. Wright, 592 F.2d 834, 839-40 (5th Cir.1979); United States v. Rogers, 549 F.2d 490, 497 (8th Cir.1976). We agree with these decisions. See also United States v. Gorny, 732 F.2d 597, 603-04 (7th Cir.1984).

But it is quite plain that there was no bad faith here. Before the prosecutor called King to the stand she asked the judge to allow her to examine him outside the presence of the jury, because she didn’t know what he would say. The defendant’s[*1193] counsel objected and the voir dire was not held. We do not see how in these circumstances it can be thought that the prosecutor put King on the stand knowing he would give no useful evidence. If she had known that, she would not have offered to voir dire him, as the voir dire would have provided a foundation for defense counsel to object, under Morlang, to the admission of King’s prior inconsistent statements.

Webster urges us, on the authority of Graham, Handbook of Federal Evidence § 607.3 (1981 and Supp.1983), to go beyond the good-faith standard and hold that the government may not impeach a witness with his prior inconsistent statements unless it is surprised and harmed by the witness’s testimony. But we think it would be a mistake to graft such a requirement to Rule 607, even if such a graft would be within the power of judicial interpretation of the rule. Suppose the government called an adverse witness that it thought would give evidence both helpful and harmful to it, but it also thought that the harmful aspect could be nullified by introducing the witness’s prior inconsistent statement. As there would be no element of surprise, Professor Graham would forbid the introduction of the prior statements; yet we are at a loss to understand why the government should be put to the choice between the Scylla of forgoing impeachment and the Charybdis of not calling at all a witness from whom it expects to elicit genuinely helpful evidence. The good-faith standard strikes a better balance; and it is always open to the defendant to 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. See Fed.R.Evid. 403.

The judgment of conviction is

Affirmed.