CLIFFORD BELL, PETITIONER,
v.
STATE OF FLORIDA, RESPONDENT
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The Florida Supreme Court held that a prosecutor may elicit testimony from a witness on direct examination about prior inconsistent statements to mitigate the impact of expected defense attacks on credibility, characterizing this as 'anticipatory rehabilitation' rather than impermissible impeachment of one's own witness.
The testimony was admissible and did not constitute impeachment because it was not offered to attack the witness's credibility but rather to preempt and mitigate the impact of an anticipated defense attack on credibility through anticipatory rehabilitation.
[1] A party may elicit testimony from its own witness on direct examination regarding prior inconsistent statements or prior convictions in an attempt to mitigate the impact…
[2] Testimony elicited from a party's own witness on direct examination to explain prior inconsistent statements is admissible when offered to "soften the blow" or reduce the…
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Join FLexlaw to unlock all legal intelligence“The testimony was offered to take the wind out of the sails of a defense attack on the witness's credibility.”
Explains the court's rationale for characterizing the testimony as anticipatory rehabilitation rather than impeachment
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Join FLexlaw to unlock all legal intelligenceBell and McBride were charged with trafficking in cocaine. After McBride entered a guilty plea, he testified under oath that Bell had nothing to do wi…
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SHAW, Justice.
We have before us by petition for review Bell v. State, 473 So. 2d 734 (Fla.2d DCA 1985), because the district court of appeal certified that its decision is in direct conflict with Price v. State, 469 So. 2d 210 (Fla. 5th DCA 1985). We have jurisdiction pursuant to article V, section 3(b)(4), Florida Constitution.
Bell and McBride were charged with trafficking in cocaine. Following their arrest and McBride’s entering a guilty plea, he stated under oath that Bell had nothing to do with the crime. McBride subsequently testified for the state at Bell’s trial.
During direct examination of McBride, and over defense objection that the prosecutor was impeaching his own witness,* testimony was elicited that McBride had initially lied to protect Bell. This prosecutorial effort was to thwart the impact of a defense attack on McBride’s credibility. The trial court overruled the objection, and the district court affirmed, characterizing the testimony as “anticipatory rehabilitation” rather than impeachment. We agree with the district court that the challenged testimony was admissible and that it was not impeachment because it was not for the purpose of attacking the witness’s credibility. Rather, the testimony was offered to take the wind out of the sails of a defense attack on the witness’s credibility.
The credibility of witnesses is always in issue. C. Ehrhardt, Florida Evidence § 401.1 (2d ed. 1984). We see no violation to the evidence code in allowing a party to mitigate the impact of inconsistent statements likely to be introduced, nor anything intrinsic to the jury’s truth-finding function in an arbitrary requirement that opposing counsel’s trial strategy may not be undercut. “Generally the rule against impeaching your own witness has not been interpreted to forbid counsel from asking his own witness on direct examination about prior inconsistent statements or prior convictions when done in an attempt to ‘soften the blow’ or reduce the harmful consequences.” Ehrhardt, § 608.2 (citations omitted).
In accordance with the view expressed above, we approve the decision of the district court. We disapprove Price to the extent that its reasoning is inconsistent with our holding in the present case. State v. Price, 491 So. 2d 536 (Fla.1986).
It is so ordered.
MCDONALD, C.J., and BOYD, OVER-TON and EHRLICH, JJ., concur. BARKETT, J., concurs specially with an opinion.
ADKINS, J., dissents.
*
Impeaching one’s own witness is generally proscribed. § 90.608, Fla.Stat. (1981).
BARKETT, Justice,
concurring specially.
I concur in the result reached by the majority since it is limited to admitting only the prior inconsistent statement. I agree that the introduction of Bell’s prior inconsistent statement on direct examination was not intended as impeachment. I believe, rather, that the appropriate objection to such a statement on direct examination would be one of relevancy. The purpose of eliciting the testimony was to rehabilitate the witness. Such testimony, however, is not relevant until the opposing party places the trial testimony of the witness in issue by confronting the witness with a prior inconsistent statement. The attempt to “soften the blow” by eliciting the damaging testimony on direct anticipates that the opposing party will place the matter in issue and thus make the rehabilitation relevant.
Admittedly, eliciting such testimony “scramble[s] the orderly procedure laid out by the Florida Rules of Evidence [and] ... robs ... counsel of an important strategic tool used in cross-examination.” Ryan v. State, 457 So. 2d 1084, 1092 (Fla. 4th DCA 1984), rev. denied, 462 So. 2d 1108 (Fla. 1985).
If the evidence is going to be heard in any event, I can discern no prejudice. Courts are not in the business of insuring “tactical advantages” to one side or the other without any legal basis. My concern revolves around the almost inevitable consequence of admitting evidence of a prior inconsistent statement, to-wit, the explanation therefor which may take the trial far afield from the issues to be decided. Rather than automatically admitting such contingently relevant evidence, I would allow evidence of prior inconsistent statements during direct examination unless the opposing party waives the use of such evidence during cross-examination. If a jury is going to hear it, it matters not when it is heard. The choice of whether the jury hears it, however, should be left to the party who has the right to submit the issue to the fact finder or to waive it.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (22 total)
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Lawhorne v. State, 500 So. 2d 519 (Fla. 1986)…ictions, § 90.610, Fla. Stat. (1983), the defense counsel on redirect examination may attempt to rehabilitate the defendant by eliciting from the defendant the nature of the prior convictions. Lawhorne v. State, 481 So. 2d at 20. In Bell v. State, 491 So. 2d 537, 538 (Fla.1986), this Court approved the use of “anticipatory rehabilitation” to “take the wind out of the sails” of an attack on credibility or to “soften the blow” of anticipated inquiries or revelations expected to be damaging to the credibility…
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Brookings v. State, 495 So. 2d 135 (Fla. 1986)…mstances presented here, that this prior inconsistent statement was used to buttress, not impeach, the credibility of the state’s own witness and, used as such, it was not in violation of section 90.608(l)(a), Florida Statutes (1983). Bell v. State, 491 So. 2d 537 (Fla.1986). Appellant next contends that the prosecution coerced Powell into giving incriminating testimony against appellant by threatening him with a perjury charge. The record reveals that this claim is without merit. Powell testified that he di…
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Bell v. State, 965 So. 2d 48 (Fla. 2007)…attempts to “mitigate the impact of inconsistent statements likely to be introduced, nor anything intrinsic to the jury’s truth-finding function in an arbitrary requirement that opposing counsel’s trial strategy may not be undercut.” Bell v. State, 491 So. 2d 537, 538 (Fla.1986). The State clearly could anticipate that competent trial counsel would introduce the details of any plea agreement exchanged for a witness testifying against the defendant. Thus, we affirm the circuit court’s finding that Bell failed…
Previewing 3 of 22 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Ryan v. State, 457 So. 2d 1084 (Fla. 4th DCA 1984)
- State v. Price, 491 So. 2d 536 (Fla. 1986)
- Bell v. State, 473 So. 2d 734 (Fla. 2d DCA 1985)
- Price v. State, 469 So. 2d 210 (Fla. 5th DCA 1985)