RULE 607. WHO MAY IMPEACH
The credibility of a witness may be attacked by any party, including the party calling the witness.
This rule does away with the prohibition against impeaching one's own witness. The rule against impeaching one's own witness has long been criticized (see 3 Weinstein's Evidence 607(01) at 607-7, 607-8 (1975)) and was abandoned at the federal level as being "based on false premises. A party does not hold out his witness as worthy of belief, since he rarely has a free choice in selecting them." Advisory Committee Note to Rule 607, FRE. Furthermore, the abolition of the rule in criminal cases is probably constitutionally required. See Chambers v. Mississippi, 410 U.S. 284, 13 S.Ct. 1058, 35 L.Ed.2d 297 (1973).
Allowing a party to impeach its own witness represents a change from past North Dakota cases, although the Supreme Court has strongly indicated its disfavor with the "voucher" rule:
"While North Dakota has recognized the 'voucher rule' that one is presumed to vouch for the truthfulness of his own witness (George v. Triplett, 5 N.D. 50, 63 N.W. 891 (1895)) we have permitted cross-examination of one's own witnesses in case of surprise (George v. Triplett, supra), and contradiction of one's own witnesses by other witnesses (Jacobson v. Mutual Benefit H. & A. Association, 70 N.D. 566, 296 N.W. 545 (1941)), as well as the calling of a witness as a court witness, thereby permitting cross-examination by both sides. See Hefty v. Aldrich, 220 N.W.2d 840 (N.D. 1974). The 'voucher rule' will be rejected entirely if the newly-proposed Federal Rules of Evidence are adopted. See Rule 607. It should be. Wigmore calls it 'a primitive notion, resting on no reason whatever, but upon mere tradition * * *.' IIIA Wigmore on Evidence, Chadbourn Edition, Sec. 898.
"The true extent of the 'voucher rule' is probably simply that the party calling a witness is likely to be held responsible for the testimony of that witness in the eyes of the judge or jury, and jury arguments to that effect can be made, but the rule should never be used to prevent cross-examination of a witness who is adverse or hostile or one whom a party is required to call by the necessities of the case." State v. Hilling, 219 N.W.2d 164, 172 (N.D. 1974).
Rule 607 was amended, effective March 1, 1990. The amendment is technical in nature and no substantive change is intended.
SOURCES: Minutes of Joint Procedure Committee: March 24-25, 1988, page 12; December 3, 1987, page 15; April 8, 1976, page 27; January 29, 1976, page 13. Rule 607, Federal Rules of Evidence; Rule 607, SBAND proposal.
CONSIDERED: Rule 43(b), NDRCivP.
CROSS REFERENCE: Rules 404, 608, 609, NDREv.