Cite as State of Yap v. Chon, Yap St. (1998)

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Crim. Case No. 1998-134

     The trial in the instant case began on August 26, 1998. On September 1, 1998, after both the State and Defendant had rested, the State, in open court, requested for leave of court to call up a witness to rebut one of Defendant's witnesses who testified to the whereabouts of Defendant on the night of May 22, 1998 and the early hours of the next day which in essence places Defendant at another location other than the crime scene during the time of the crime. Defendant objected to the State's request for permission to call up a rebuttal witness.

     The court instructed both counsels to file memoranda on their respective positions.

     In essence, Defendant's objection stated that the Rules of Criminal Procedures for the Trial Division of the State Court of Yap does not provide for a rebuttal witness and the State's proposal to be permitted to explore the witness' inconsistency, specifically, that the witness has uttered a prior inconsistent statement, would

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be irrelevant, not to mention its likelihood to confuse the issue, be a waste of time, and pose unfair prejudice against Defendant.

     The State responded that a rebuttal witness is necessary because the witness made a prior inconsistent statement concerning a material issue in fact and on the stand the witness denied the making of the prior inconsistent statement to the police. Therefore, the State has no other recourse but to offer through a police officer that exchange to show that the witness is at least inconsistent for impeachment purposes. The State referred the court generally to 75 Am Jur, Trial 3 65-3 76, for the proposition that rebuttal evidence is permissible after both parties have rested.

     The issue therefore is whether the court should allow the State to put on a rebuttal witness, a police officer, to show that the alibi witness for the defense had made a prior inconsistent statement.

     The fact that the Yap State Court Rules of Criminal Procedure is silent on rebuttal evidence does not mean that parties are prohibited from putting on rebuttal evidence. Rebuttal evidence become necessary to counteract or contradict an evidentiary or testimonial offering by the opposing party. 75 Am Jur 2d, Trial 365. It is within the discretion of the court whether or not to allow rebuttal evidence. id. 3 66. In the United States courts, parties are generally permitted, by common law practice, to use rebuttal evidence specifically to refute a particular evidentiary offering party which the refuting party could not reasonably have anticipated. State v. Kuhl, 3 ALR 1694, 1705;see also, People v. Brown, 43 ALR3d 1407; State v. Hart, 41 ALR2d 1199; 81 Am Jur 2 d, Witnesses 942 et seq.

     In the instant case, the State moved to put on a rebuttal witness to refute the defense witness' testimony which

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established an alibi for Defendant. During cross-examination, the State attempted to discredit the alibi by questioning the witness about a prior statement to the police which would tend to weaken Defendant's alibi. The State asserted that the defense had knowledge of the prior inconsistency by the witness through discovery. Upon questioning, the witness denied the substance of the prior statement. At the witness' denial, the State informed the court that the police officer who obtained the prior statement 'from the witness is available to testify to the substance of that statement,, Defendant objected to the grant of rebuttal.

     It is undisputed that the biggest gun of a defense is one of an alibi. In cases where the defense relies mainly on one, in order to overcome a defense of alibi, the prosecution must show that it is incredible or fabricated. Such a showing is commonly attempted at cross-examination. Where the cross-examiner is satisfied of the response, the scrutiny ends there. Where the cross-examiner is not satisfied, and extrinsic evidence is available, the dissatisfied party may resort to rebuttal provided that hearsay problems are likely to be overcome. 81 Am Jur 2d, Witnesses 945.

     In the case at bar, the court believes that the State is entitled to put up a rebuttal witness. Provided that the State has a prior statement by the witness and the defense also has notice of the same, the court finds it only proper to allow the State to demonstrate the existence of any inconsistency given that on cross-examination, the witness denied the making of the statement. The court is further persuaded by the materiality of the matter at issue. The witness is an alibi witness and the State asserts that it is prepared to show that the same witness had made a prior utterance which would put at least, her credibility at issue.

     Based on the forgoing, the court grants the State's request to call a rebuttal witness, at this stage of trial where both the State

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and the defense have rested, strictly to show the State's assertion that there is a prior inconsistent statement by the witness. The court determines that the Rules of Criminal Procedure for the Trial Division of the State Court of Yap does not prohibit the practice of calling a rebuttal witness when necessary for a party. Indeed, the Rules of Evidence for the State Court of Yap contemplates rebuttal evidence. However, this procedural permission does not suspend any valid objections provided under the Rules of Evidence for the State Court of Yap.

SO ORDERED this 4th day of September, 1998.

                         Chief Justice Constantine Yinug

Received and Filed this 11th day of September 1998.

Clerk of Court
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