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Univ. of South Carolina School of Law

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Thursday, August 16, 2012

About Schmidt: Court Of Appeals Of Texas Notes That Rule 607 Killed The Common Law Voucher Rule

Like its federal counterpartTexas Rule of Evidence 607 provides that

The credibility of a witness may be attacked by any party, including the party calling the witness.

And what this means is that the Texas Rule, like the federal Rule, abandons the old "voucher rule," under which a party vouched for the credibility of the witnesses it called and could not impeach their testimony. This point is made clear by the recent opinion of the Court of Appeals of Texas, Amarillo, in Schmidt v. State, 2012 WL 2888213 (Tex.App.-Amarillo 2012), which also shows why the voucher rule was abandoned.

In Schmidt, David Andrew Schmidt, was convicted of the offense of theft of property of the value of $1,500 or more but less than $20,000. The propety in the question consisted several laptop computers that were stolen from the offices of the Texas Department of Transportation in Amarilo, Texas.

The charges against Schmidt arose in large part due to two interviews. First, after a laptop was dicovered in Schmidt's car, Schmidt was interviewed by a police officer and told him

that his mother had purchased the laptop for him and that he had possession of the laptop for over a year. Some of this interview was captured on a DVD recording, State's exhibit 25 (S–25), that was played for the jury. The DVD stopped before the entire interview was recorded. The statement to [the officer] that [Schmidt]'s mother had purchased the laptop for him was not on the DVD, rather this information was presented to the jury as part of [the officer's] testimony.

Later, after Schmidt was arrested, he was interrogated by a sergeant

During the recorded interview, [Schmidt] first asserted that he purchased the laptop several months ago from a friend, whose name he could not give. Moments later, appellant told [the sergeant] that he and his mom bought the laptop together. Within a few seconds, [Schmidt] told [the sergeant] that his mother bought the laptop for him. This DVD, State's exhibit 26 (S–26), was also played for the jury.

The prosecution then called several witnesses to impeach Schmidt's statements pursuant to Texas Rule of Evidence 806.

After he was convicted, Schmidt appealed, claiming, inter alia, that "the State somehow vouched for [his credibility] by putting the statements...contained in S–25 and S–26 before the jury." The Court of Appeals disagreed, concluding that "the State of Texas abandoned the 'voucher' rule regarding impeachment of witnesses with the adoption of Rule 607 of the Texas Rules of Evidence."

-CM

http://lawprofessors.typepad.com/evidenceprof/2012/08/607806-schmidt-v-state-sw3d-2012-wl-2888213texapp-amarillo2012.html

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