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November 14, 1974


The opinion of the court was delivered by: SIRICA

 This matter comes before the Court on the proffer by the government of testimony by Fred Fielding concerning certain statements made to him by a previous government witness, John Dean, and the objection interposed by counsel for defendant John Ehrlichman to such testimony.

 Since then the government has submitted memoranda specifically explaining the purpose for which Mr. Fielding will be called and citing legal authority to support this procedure. Likewise, counsel for Mr. Ehrlichman has submitted a memorandum setting forth the arguments and authorities in opposition to the admissibility of such testimony.

 On direct examination, Mr. Dean testified to a conversation he had with defendant Ehrlichman on June 21, 1972. According to Dean, he was told by Mr. Ehrlichman at that time to "deep six" a briefcase containing electronic gear which had been found in the safe of E. Howard Hunt, but that he rejected this suggestion and subsequently persuaded Ehrlichman that it should be turned over to the F.B.I.

 On cross-examination of Dean, counsel for Ehrlichman attempted to show that Dean's testimony about this episode was untrue. For example, Mr. Frates attempted to show that Dean knew the meaning of the term "deep six" without having to have Ehrlichman explain it to him. And in his opening statement, Mr. Frates asserted that the proof would refute the government's assertion that Ehrlichman had instructed Dean to "deep six" material from Hunt's safe and that Dean's credibility in this respect was suspect since he was "hard-bargaining for immunity" when he first accused Ehrlichman to the original prosecutors.

 In order to refute the suggestion made by Mr. Frates that Dean's incriminating testimony was fabricated at a time when Dean was bargaining for immunity and was, therefore, motivated to lie about the involvement of "higher-ups," the government wants to introduce testimony from Fred Fielding to the effect that on or about June 21, 1972, Dean told him of Ehrlichman's instruction to "deep six" the evidence, and that Dean expressed concern about the wisdom of doing so.

 The testimony of Mr. Fielding is offered by the government solely for the purpose of rebutting the suggestion that Dean's "deep six" testimony was untrue and to assist the factfinders in assessing his credibility.

 Mr. Ehrlichman's counsel objects, contending that a distinction must be made between testimony offered to rehabilitate an impeached witness, and testimony offered to corroborate his testimony. He claims that impeachment of a witness gives rise to rehabilitation when the impeachment goes not to the truthfulness of the witness' testimony, but to the character or reputation of the witness for veracity. He also contends that Dean's out-of-court statement to Fielding that Ehrlichman told him to "deep six" the briefcase is offered for the truth of the contents of the statement, and is inadmissible hearsay. Mr. Frates maintains that the testimony is sought to corroborate Dean's testimony, and not to rehabilitate Dean's reputation.

 Furthermore, he contends that when Dean made the alleged remark to Fielding, Dean was actively involved in the cover-up, and had a strong motive to falsify his remark to Mr. Fielding. Dean is alleged to have made other false statements during the same period of time that were attended by the same motivation. [Just what motive Dean had for lying to Mr. Fielding at that time is not made clear, however.] Mr. Ehrlichman also asserts that since Dean has admitted that he lied on several occasions, it is impossible to rehabilitate his reputation for veracity.

 Rehabilitation evidence is allowed only when there is a need to rehabilitate. As both WEBSTER'S NEW INTERNATIONAL DICTIONARY (2d. ed. 1957) and BLACK'S LAW DICTIONARY (4th ed. 1951) indicate, "rehabilitate" means: "To invest or 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 ...

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