requiring that a party impeaching its own witness show both surprise and damage before testimony is admitted, unless the statement is classified as nonhearsay under Rule 801
How later courts described this case
- requiring that a party impeaching its own witness show both surprise and damage before testimony is admitted, unless the statement is classified as nonhearsay under Rule 801
- in an action for trespass to land, “the law presumes that a plaintiff has been damaged without the necessity of proof of actual damage”
Written by the judges who cited it.
The opinion
O’CONNELL, C. J.,
dissenting.
I dissent for the reasons stated in my dissenting opinion in State v. Derryberry, 270 Or 482 at 492 , 528 P2d 1034 at 1038 (1974). Supplementing what I said there, I endorse the view expressed by Professor Morgan that the rule precluding the impeachment of one’s own witness “has no place in any rational system of investigation in modern society. And all attempts to modify or justify it so as to reach sensible results serve only to demonstrate its irrationality and to increase the uncertainties of litigation.” ① As one court has noted, the rule has been “more honored in *928 its breach than in its observance.” ② The court went on to say:
“Viewing a trial as a sporting event in which only the parties have any interest, the [common-law] rule might be adhered to, like one of the rules of any game. The purpose of a trial, however, is to seek for and, if possible, find the truth and to do justice between the parties according to the actual facts and the law, and any rule which stands in the way of ascertaining the truth and thus hampers the administration of justice must give way. The parties to a lawsuit, if they are honest, do not manufacture witnesses or evidence. The witnesses are determined by circumstances over which the parties usually have no control.” 83 F2d at 332.
In one of the law review articles cited in the majority opinion the author concluded:
“* * * [C]ourts adhering to the rule present as justification for their observance no logical rationale or practical argument that vitiates the obvious inequity it creates. In modern trials, the emphasis should be not on trial tactics, but on the presentation of evidence that will guide the trier of fact in its determination of the truth. In this process there should be no artificial barriers erected which might preclude fair disclosure of all relevant material. The witness’ function is to place the evidence before the trier of fact. Although, through the mediums of cross-examination and impeachment, the opposing party may bring out justifications for disallowing such evidence or call into question its reliability, under the common-law rule the calling party has no such opportunity. This opens the door to possible one-sided presentation. Such a situation is the antithesis of a search for truth, for both parties should be on the same footing.
*929 “The apparent solution would be simply to rule that ‘no party shall be precluded from impeaching a witness because the witness is his own.’ [Citation omitted] Such complete abrogation of the rule is advocated by the Uniform Rules of Evidence, which makes all witnesses witnesses of the court. Its adoption would be a step forward in the law, which grows only through the discarding of methods and concepts that prove inapplicable or unsuitable in a never-ending process of refinement. Recently, a federal court, faced with the anachronistic situation described, boldly stated:
“ ‘We do not limit our repudiation of the pernicious rule against impeachment of one’s witness to instances in which the witness is an “adverse party” or “hostile.” The search for truth is not to be confined by any such limitation * * [U.S. v. Freeman, 302 F2d 347, 351 (2d Cir 1962)].
Such a disavowal not only of the common-law rule, but also of the piecemeal attacks on it deserves the support of every lawver.” Impeaching One’s Own Witness, 49 Va L Rev 996, 1019-20 (1963).
The two major treatises on evidence also conclude that the rule adopted by the majority opinion in the present case is unsound. ③
The majority holds that the prior inconsistent statement by plaintiff’s witness “was also not admissible as substantive evidence because defendant’s son did not have first hand knowledge of the facts stated.”
Zoller testified that Lorren Harwood, defendant’s son, told him that his mother “took a shot at somebody and that they had probably gotten rid of the gun through Mickey.” Prom this testimony, it does not appear whether Lorren Harwood had first *930 hand knowledge of the shooting or learned it from somebody else. If he learned of the fact from his mother, the evidence would be admissible as. an admission. But even if Lorren Harwood learned of the shooting from someone other than his mother, and it thus was hearsay, there was sufficient guarantee of trustworthiness to circumvent the dangers of hearsay in the fact that a son would not be likely to make such a statement about his mother if it were not true. We should apply the same reasoning here as we applied in Timber Access, Inc. v. U. S. Plywood, 263 Or 509 , 503 P2d 482 (1972).
Denegre, J., joins in this opinion.
1 Morgan, Basic Problems of Evidence, 64 (1954).
London Guarantee & Acc. Co. v. Woelfle, 83 F2d 325, 332 (8th Cir 1963).
McCormick on Evidence (2d ed 1972) § 38; 3A Wigmore on Evidence, § 899.