We deal with attacking government witnesses in a federal criminal case. Generally, but not always, it is the government that calls the witness, but what we write about can apply to any party choosing to call a witness.
The calling of a witness does not make the individual the interrogator’s own witness. In federal court, “[t]he credibility of a witness may be attacked by any party calling the witness.”1 This is contrary to common law. On the other hand, impeachment of a person called by a party in state court follows the common law, and is restricted by CPL 60.35, for there, to impeach a witness called by the party, the testimony must be damaging to the party calling the witness, and the prior statement must have been a signed statement or a sworn oral statement.2 If the statement is not admissible by virtue of the statute it cannot be disclosed to the jury under the guise of refreshing recollection. Such a statement, even if sworn to, is not admissible as substantive proof, but only for impeachment purposes.
Circumstances
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