Also known as: mere subterfuges · pretext · evasion
Written by attorneys · grounded in primary & secondary sources — see below
A prohibited evidentiary tactic by which a party calls its own witness solely to introduce an otherwise inadmissible prior inconsistent statement under the guise of impeachment. The tactic is forbidden when the calling party knows in advance that the witness will not testify consistently with the prior statement and the primary purpose is to place substantive evidence before the jury that would otherwise be excluded.
The prosecutor called the arresting officer knowing the officer would deny any investigative motive during the vehicle stop. The prosecutor then sought to introduce the officer's earlier report describing the search as a pretext to locate drugs. The court excluded the report because the call served only to smuggle in the otherwise inadmissible statement.
Plaintiff's counsel summoned a former supervisor who had already stated under oath that no discriminatory remarks occurred. Counsel then attempted to introduce the supervisor's contradictory pretrial affidavit containing the alleged remarks. The court barred the affidavit as a mere subterfuge to present otherwise inadmissible evidence.
Defense counsel called an employee who had previously denied knowledge of internal risk assessments. Counsel then sought to impeach with the employee's prior memo detailing those assessments. The court excluded the memo because counsel knew the employee would not adopt it and the call was made only to reach the document.
Select any source to read its text and confirm it supports the definition.
The government called a defense character witness who had already told prosecutors she would not repeat her earlier favorable statements. The prosecutor then offered the witness's prior statement praising the defendant's honesty. The court sustained the objection because the sole purpose was to introduce the statement as substantive evidence.
The defense called a police officer who had stated in deposition that the search lacked probable cause. Counsel then attempted to introduce the officer's contradictory report claiming consent. The court ruled the report inadmissible because the call was made only to place the report before the jury.
The prosecutor summoned a cooperating witness who had already indicated he would invoke the Fifth Amendment at trial. The prosecutor then sought to introduce the witness's earlier grand jury testimony implicating the defendant. The court excluded the transcript because the call served only to present otherwise inadmissible hearsay.
Impeachment becomes mere subterfuge when the party knows before calling the witness that the witness will not testify consistently with the prior statement. The focus is on whether the primary purpose is to place otherwise inadmissible substantive evidence before the jury rather than to attack credibility on a matter of consequence.
Supporting sources
Yes. If the witness's testimony is important in establishing any fact of consequence in the litigation, the witness may be impeached even on other matters. The analysis examines the entire testimony rather than isolated inconsistencies.
Supporting sources
The prior inconsistent statement is excluded. The court prevents the party from using the impeachment device to introduce substantive evidence that would otherwise be inadmissible under the rules of evidence.
Supporting sources
…They would contain various exceptions to powers which are not granted; and on this very account, would afford a colourable pretext to claim more than were granted. For why declare that things shall not be done which there is no power to do? Why for instance, should it be said, that the liberty of the press shall not be…