clothe again with some right, authority, or dignity; to restore to a former capacity; to reinstate; to qualify again."
It is thus essential that before one can rehabilitate, there must first have been an impeachment, a taking-away of dignity, a disqualification. And it is necessary that the proposed rehabilitation evidence be directed at the particular impeachment that occurred.
If the only reasons for allowing Fielding to testify about a prior consistent statement of Dean were the two reasons particularized in the government's memoranda (Mr. Frates' remark in his opening statement, and his reference on cross-examination to Dean's sailing experience) there would be good reason to agree with Mr. Ehrlichman's objection.
A remark in Mr. Frates' opening statement that he would refute the government's assertion that Ehrlichman told Dean to "deep six" the briefcase would not be enough, standing alone, to constitute a substantial impeachment of the later testimony of Dean, especially in this trial when the opening statements were all so very long, and Dean's testimony was so lengthy.
Nor would the fact that Mr. Frates briefly noted in his cross-examination of the witness Dean that the witness had once owned a sailboat, constitute a substantial impeachment of Dean's testimony that it was Ehrlichman, not he, who suggested that the evidence be "deep-sixed." This reference to Dean's knowledge of nautical terms was brief (he was cut off by the Court), very subtle (it is possible that some jurors did not realize that the question implied that Dean had originated that term), and of minimal impeachment value (when compared with the weight and detail of the accusations made by Mr. Dean).
But a review of the transcript of Mr. Frates' entire cross-examination and re-cross-examination of the witness Dean supplies ample reason for admitting the prior consistent statement. (Trans. at 3662-3782 and 3839-3850.) During his cross-examination, Mr. Frates (1) stressed that the witness had hidden, concealed, and destroyed evidence and directed others to do the same; (2) emphasized that the witness had committed perjury, suborned perjury, taken advantage of others less knowledgable than himself, and had misused his legal abilities; (3) tried to show the witness had altered his testimony since he had first been interviewed by prosecutors; (4) impugned his honesty with regard to money Dean used which did not belong to him, implying that no I.O.U. check had been written to cover the money used; (5) implied the witness was not as opposed to the Liddy plan as he had suggested he was; (6) implied that the witness had omitted certain facts from his testimony for self-serving reasons; (7) implied that the words which the witness had ascribed to some defendants were actually the witness' own words; and most importantly, (8) directly raised the issue of "bargaining for immunity" to imply that the witness had a motive for implicating some of the defendants who were more notable public figures than himself, in order to get favored treatment. (Trans. at 3739-3740.)
In other words, defendant Ehrlichman, through his attorney, made a substantial, sustained attack on the credibility of the witness. Not only in the opening statement of Mr. Frates but also in his cross-examination he raised the issue that Dean's testimony was suspect because it was first given when he was "hard-bargaining for immunity."
Because Mr. Ehrlichman opened the door on cross-examination, the government should be allowed to call a witness who can allegedly testify that before Mr. Dean was bargaining for immunity, long before he had the motive suggested by Mr. Ehrlichman for fabricating his testimony, Mr. Dean made a prior consistent statement.
The present situation is quite similar to the situations in several cases cited in the government's memorandum. In United States v. Zito, 467 F.2d 1401 (2d Cir. 1972) the two appellants had been convicted of conspiracy to extort. At trial the victim of a loan-sharking scheme, Mr. Doran, was called to testify about a loan, interest rates, threats, etc. Several other witnesses testified about statements Mr. Doran had made to them which paralleled his trial testimony about threats, etc.
The appellants asserted that this supportive testimony was inadmissible as mere corroborative testimony, but the trial court was upheld by the Court of Appeals which noted:
The defense attorney's opening statement to the jury and his persistent inquiries during the cross-examination reflected an intense interest in the fact that Doran had committed many crimes in his attempts to raise money for the Zitos [defendants] for which he had not been indicted. In this manner 'the defense at least suggested to the jury that [the prosecution's principal witness] hoped for clemency for himself, and that his trial testimony was a fabrication, as a reward for which he hoped to go unwhipped of justice.' A trial judge normally has great discretion in determining if a prior consistent statement is authorized to rebut a defense charge of recent fabrication, and we cannot say here, in light of the obvious motive to falsify, that the trial judge erred in drawing the inference that the defense had suggested that Doran had concocted his story to escape punishment. Id. at 1404 (citations omitted).
Similarly, in United States v. DiLorenzo, 429 F.2d 216 (2d Cir. 1970), cert. denied, 402 U.S. 950, 91 S. Ct. 1609, 29 L. Ed. 2d 120 (1971), in appealing his conviction for interstate transportation of stolen securities and conspiracy, the appellant urged that it was error to allow into evidence testimony of a witness about a prior statement of a government witness. After the witness had testified that the appellant was his source of the stolen securities:
[The] defense sought to impeach his credibility by showing that by his helpful testimony he was seeking leniency from the government in the pending sentencing on his conviction. In such a case, prior consistent statements may be used to rehabilitate a witness where under the circumstances it will be reasonably possible for the jury to say that the prior consistent statement did in fact antedate the motive disclosed on cross-examination. . . . The testimony was properly allowed into evidence, and the trial judge gave instruction limiting its purpose to the fact that the statement was made and not for the truth of the statement. Id. at 220.