Delaware Trial Handbook § 14:2. CROSS-EXAMINATION OF ONE’S OWN WITNESS

The traditional rules in Delaware as to examination of one’s own witness, i.e., a witness called by a party to testify on that party’s behalf, have been affected by the adoption of Delaware Rule of Evidence 607, which permits the party calling the witness to attack the witness’s credibility.9 Traditionally, with some exceptions, a party calling a witness was deemed to endorse the credibility of the witness and was not allowed to attempt to destroy that credibility by cross-examination or otherwise. The exceptions were where the party calling the witness was surprised by testimony contradicting the previous statements made by the witness, to show collusion or deceit or where the party called a hostile witness.10 The practice was for the attorney conducting the examination of the witness to plead surprise or to announce that he or she would examine the witness as a hostile or adverse witness before proceeding to utilize cross-examination techniques. Such cross-examination was permitted only for the purpose of discrediting the witness and could not be given effect as substantive evidence.11 Any prior statement used to impeach the witness was deemed to be inadmissible as hearsay.

Under Rule 607, a party can impeach his or her own witness.12 Surprise is no longer a necessary prerequisite to impeaching one’s own witness. The rule has been further modified by the removal from the definition of hearsay a previous statement inconsistent with the witness’s present testimony.13 Thus, impeachment testimony brought out on direct examination may be accepted as substantive evidence. It is questionable, however, whether or not a party may call a witness solely for the purpose of impeachment and thereby introduce evidence that might otherwise be inadmissible.14

9. D.R.E. 607.

10. Concord Towers, Inc. v. Long, 348 A.2d 325, 327 (Del. 1975); State v. Hopkins, 172 A. 841 (Del. 0. & T. 1933); State v. Wright, 45 A. 395, 396 (Del. O. & T. 1899); State v Windsor, 5 Del. 512, 5 Harr. 512, 526-27 (Del. Super. 1854).

11. Thompson v. State, 174 A.2d 141, 143 (Del. 1961); State v. Hopkins, 172 A. 841 (Del. O. & T. 1933).

12. D.R.E. 607.

13. D.R.E. 801(d)(1).

14. See Whitehurst v. Wright, 592 F.2d 835 (5th Cir. 1979). But see Scholz Homes, Inc. v. Wallace, 590 F.2d 860 (10th Cir. 1979).

© 2010  David L. Finger