Alaska Comm. R. Evid. 607

As amended through September 19, 2024

Rule 607 - Who May Impeach or Support

(a) Rule 607 follows both Federal Rule 607 and existing Alaska authorities in rejecting the wooden common law rule that a party may not impeach his own witness. See Beavers v. State, 492 P.2d 88, 91 (Alaska 1971), Johnston v. State, 489 P.2d 134, 137 (Alaska 1971), and Hobbs v. State, 359 P.2d 956, 966 (Alaska 1961). Rule 43(g)(11) [a] of the Alaska Rules of Civil Procedure, which this rule supersedes, provided that a party could impeach his own witness with evidence of a prior inconsistent statement. Rule 26(a) of the Alaska Rules of Criminal Procedure extended this provision to criminal trials. A similar provision is Civil Rule 32(a) (1) allowing any party to impeach a witness by means of his deposition. Thus, Alaska's policy toward impeachment is basically unchanged by Rule 607.

Rule 607 recognizes that a party should not be held to vouch for the trustworthiness of his witnesses since he rarely has a free choice in selecting them, and further recognizes that to deny the right to impeach is to leave the party at the mercy of the witness and the adversary.

If the truth lies on the side of the calling party, but the witness's character is bad, the witness may be attacked by the adversary if he tells the truth; but if the witness tells a lie, the adversary will not attack him, and the calling party, under the rule [forbidding impeachment] cannot. Certainly it seems that if the witness has been bribed to change his story, the calling party should be allowed to disclose this fact to the court.

McCormick (2d ed.) § 38, at 75.

Instead of classifying a witness as belonging to one party, Rule 607 "makes the witness the witness of the court as a channel through which to get at the truth." Comment to Rule 20, Uniform Rules of Evidence, Vol. 9A ULA 607 (1965).

Nothing in this or any other rule specifically bars impeachment by presenting extrinsic evidence on a collateral issue. The word "collateral" has so many meanings that it tends to be confusing. Rule 403, in providing that evidence may be excluded if the time required for its presentation is not warranted by its probative value, will permit exclusion of impeachment evidence that sheds little, if any, light on the credibility of a particular witness in a particular case.

See Maine Rule of Evidence 607, Nebraska Rule 27-607, Nevada Rule 50.075, and New Mexico Rule 20-4-607 for provisions similar to subdivision (a).

(b) Subdivision (b) recognizes generally the right of a party to rehabilitate a witness whose credibility has been attacked.

Support evidence is not permitted until credibility has been attacked; its function in the adversary system is to serve as a counterblow, and such a blow is not to be struck until an opposing party takes the offensive.

A second basic limitation imposed by the requirement that support evidence "meet an attack" on credibility is that the support evidence respond to the impeaching fact. "The rehabilitating facts must meet a particular method of impeachment with relative directness. The wall, attacked at one point, may not be fortified at another and distinct point." McCormick (2d. ed.) § 49, at 103. This by no means meant to say that impeachment by showing a conviction of a crime, for example, could be responded to only by evidence that the witness was not guilty of that crime. What is meant is that the insinuation to which the attack is directed must be addressed by the support evidence. For example, the ground for disbelieving a witness afforded by prior conviction of a crime is the suggestion of a general readiness to do evil; evidence of the witness' reputation for veracity would generally be relevant to meet this attack, as noted by Justice Holmes in Gerts v. Fitchburg R. Co., 137 Mass. 77 (1884). Whether a particular type of support evidence is relevant to a particular mode of impeachment cannot be delineated by an inflexible rule; decisions must be left to the discretion of the court for case-by-case consideration. Such decisions are extremely fact-specific, depending, inter alia on the vehemence of the attack, the nature of the impeaching evidence, and the nature of the support evidence proffered.

Alaska Comm. R. Evid. 607