## Facts

- Clinton Webster was charged in federal court with aiding and abetting a federally insured bank robbery and receiving stolen bank funds.
- The government’s key witness, Charles King (the bank robber), had pleaded guilty before Webster’s trial.
- King previously gave statements to the FBI implicating Webster as an accomplice.
- Before King testified, the prosecutor sought to question King outside the jury’s presence because she was uncertain what his testimony would be; defense counsel objected, and no such examination occurred.
- At trial, King testified in a manner favorable to Webster and inconsistent with his prior FBI statements.
- The government introduced King’s prior inconsistent FBI statements to impeach him; the district court admitted them solely for credibility and instructed the jury not to treat them as substantive proof of guilt.
- Webster was convicted and sentenced to nine years’ imprisonment, then appealed.

## Issues

1. Whether the government improperly used Federal Rule of Evidence 607 to introduce otherwise inadmissible hearsay by calling a witness expected to recant and then impeaching him with prior inconsistent statements.
2. Whether Rule 607 should be limited by a requirement that the proponent show it was “surprised and harmed” by the witness’s testimony before impeaching with prior inconsistent statements.

## Decision

- The Seventh Circuit affirmed the convictions.
- Rule 607 permits the government to impeach its own witness with prior inconsistent statements.
- Although impeachment cannot be used as a pretext to place inadmissible hearsay before the jury, the record did not show bad faith or subterfuge by the prosecution.
- The court declined to impose a “surprise and harm” prerequisite not found in the text of Rule 607.
- The district court’s limiting instruction and the availability of Rule 403 balancing were adequate safeguards against unfair prejudice.

## Legal Principles

- Under Federal Rule of Evidence 607, any party may attack the credibility of a witness it calls, including by using prior inconsistent statements for impeachment.
- Impeachment evidence may not be used in bad faith as a device to evade the hearsay rule by placing inadmissible statements before the jury under the label of “impeachment.”
- Courts assess alleged “subterfuge” by examining the proponent’s purpose and the trial record, including whether the proponent reasonably expected useful admissible testimony.
- Rule 607 does not require a threshold showing that the calling party was “surprised and harmed” by the witness’s testimony.
- Rule 403 provides the principal check on unfair prejudice when prior inconsistent statements risk being treated by the jury as substantive evidence despite a limiting instruction.

## Conclusion

The court upheld Webster’s conviction, holding that the government could impeach its own witness with prior inconsistent statements without proving “surprise and harm,” and that exclusion is warranted only where the impeachment is a bad-faith attempt to circumvent the hearsay rule or where Rule 403 balancing shows unfair prejudice outweighs probative value.


United States v. Webster, 734 F.2d 1191 (7th Cir. 1984)