This is a Mann Act case. The so-called "victim" is Mrs. Jean Eisenberg. The defendant is her husband, Edward Eisenberg, sentenced to four years imprisonment for "knowingly, wilfully and unlawfully transport[ing]" his wife on December 7, 1958, from New Orleans to Mobile "for the purpose of prostitution".1

The appeal turns on the question of the admissibility of an unsworn, out-of-court statement introduced by the prosecution without a predicate, over the objection of defense counsel, and used as substantive evidence against the defendant. The victim made the statement to an FBI agent out of the presence of her husband at a time when she was hostile to her husband. On the stand she repudiated the statement. The trial judge gave no instructions limiting its effect when the statement was admitted, when it was sent to the jury room, or in his charges to the jury.

The prosecution presented two witnesses. Joel Colglazier, an FBI agent at Mobile, testified briefly that sometime between November 10 and November 16, 1958 he saw the Eisenbergs at a place known to be a house of prostitution. That was the total extent of his testimony. The statement was made to him but he did not testify as to the statement. The other witness was Mrs. Eisenberg.2 On the whole, her testimony is inconsistent with her statement and supports the defendant's contention that he did not take her to Mobile for the purpose of prostitution.3 Without the benefit of the unrestricted use of the statement the evidence for the prosecution is too thin to support the verdict.4 During the direct examination of Mrs. Eisenberg, the counsel for the prosecution prefaced a number of questions with the phrase, "to refresh your recollection". Presumably, the United States Attorney had Mrs. Eisenberg's written statement before him in full view of the witness and the jury. It is not surprising that defense counsel should request the district court to instruct the Government to turn over to the defense any written statements made by the witness. It is also not surprising that defense counsel should feel compelled to attempt to offset the adverse effect of the Government's tactics. Thus, the defense showed that the statement was made at a time when the Eisenbergs had been drinking heavily and were in the middle of a bitter quarrel. In the course of the quarrel the defendant had roughed up his wife, had packed up his bags to leave, and had threatened to take their baby with him to New Orleans (he had done so once before). On his wife's complaint, he was picked up by the police at the baby's temporary foster home. On cross-examination, Mrs. Eisenberg testified that the statement was made in a fit of anger and was not true.

Mrs. Eisenberg's statement was offered in evidence as Government Exhibit 1, over the objection of defense counsel.5 The jury realized fully the importance of the statement. As soon as the defense rested, a juror asked to see the statement. The district judge replied: "Yes, it is in evidence. You will take it with you to the jury room."

The orthodox view is that when a witness takes the offering side by surprise6 and alters his story, a prior inconsistent statement is admissible for impeachment purposes but not as substantive evidence of the facts stated. "[T]he contradictory statements can have no legal tendency to establish the truth of the subject-matter." Southern Railway Co. v. Gray, 1915, 241 U.S. 333, 337, 36 S. Ct. 558, 560, 60 L. Ed. 1030. See Ellis v. United States, 8 Cir., 1943, 138 F.2d 612; United States v. Michener, 3 Cir., 1945, 152 F.2d 880; Young v. United States, 5 Cir., 1938, 97 F.2d 200; 133 A.L.R. 1454 (1941). And, "if the only evidence of some essential fact is such a previous statement, the party's case falls". McCormick, Handbook of the Law of Evidence 73 (1954).

In United States v. Biener, D.C.E.D. Pa.1943, 52 F. Supp. 54, 56, a similar case involving the Mann Act, where the only witness for the prosecution was the victim who repudiated an out-of-court statement, the court allowed a motion in arrest of judgment. The court stated:

"Without this prior contradictory statement, however, the government has no testimony to sustain the guilt of the defendant. Under the reported decisions, evidence of the prior contradictory statement can be used only to discredit the witness' present testimony and cannot be treated as affirmative proof of fact for any other purpose." Citing Young v. United States, 5 Cir., 1938, 97 F.2d 200 and Southern Ry. Co. v. Gray, 1915, 241 U.S. 333, 36 S. Ct. 558, 60 L. Ed. 1030.

It is not clear from the record why either the United States Attorney or the trial judge considered the statement admissible. At no time did the United States Attorney take the position that he was taken by surprise, that Mrs. Eisenberg was a hostile witness, and that the statement was admissible as a prior inconsistent statement for purposes of impeachment. Of course, the prosecution was in a dilemma. It could afford to impeach only her unfavorable testimony. The inference to be drawn from the record, particularly from the repetition of the phrase "to refresh your recollection", is that the United States Attorney regarded the statement not as contradictory but as consistent with her testimony.

At the time the statement was offered, the United States Attorney argued that it was admissible on the ground that the defense counsel had requested the statement and examined Mrs. Eisenberg on the statement. Defense counsel, however, did not request the statement or cross-examine Mrs. Eisenberg in regard to it, until after numerous references had been made to the statement by the prosecution, particularly through the foreboding phrase, "to refresh your recollection". The defense counsel's well-grounded fear that the statement would be offered and his proper efforts to protect his client by showing the circumstances under which the statement was given were no license for the admissibility of the statement.

In its brief the Government contends that the statement was used to refresh Mrs. Eisenberg's recollection, and besides the jury called for the statement. We consider that, as used in this case, a prior inconsistent statement is inadmissible for the purpose of refreshing the recollection of the witness.7 The statement was not used by the witness herself, as is usually the case with memoranda to revive recollection. There is no pretense that the memory of the witness had dimmed or that she needed to refer to any out-of-court statement in order to refresh her recollection. It seems to us that in fact Government counsel employed the statement not to refresh the witness' recollection but to try to control her answers by putting words in her mouth so that her testimony would agree with her statement. The effect of the tactic was to get the substance of the ex parte statement to the jury — even without offering it in evidence.8 Zeal and perhaps righteous indignation carried the prosecution too far.

The only authority relied on by the Government to support its contention is United States v. Rappy, 2 Cir., 1946, 157 F.2d 964, 967, certiorari denied 329 U.S. 806, 67 S. Ct. 501, 91 L. Ed. 688. In the Rappy case, Judge Learned Hand wrote:

"When a party uses an earlier statement of his own witness to refresh the witness's memory, the only evidence recognized as such is the testimony so refreshed; and the party may not put the statement in evidence, although the other side may do so, and apparently the jury may call for it sua sponte * * * but when it [the statement or other memory evoking stimulus] is an account of that occasion, its falsity, if raised by the opposing party, will become a relevant issue if the witness has declared that the evoked memory accords with it * * * It was obviously proper that upon that issue the statement itself should be in evidence."

In the Rappy case the witness on the stand did not remember what he had put in the written statement. When he was shown the written statement it refreshed his recollection and he remembered the words in the statement. In the instant case, there was no evidence as to the preparation and execution of the statement, as in Rappy, and there was no contention that the witness had forgotten anything in the statement. When it was introduced she did not declare that it refreshed her memory nor is there indication that she relied on the statement. She did not even agree with its contents. She testified that she had made matters appear worse against her husband in the statement than they were in fact.

Judge Hand's language in the Rappy case is not authority for the use of the statement as substantive proof. The section from Wigmore cited in Rappy states plainly that the party offering the statement cannot treat it as evidence.9 In a later case Judge Hand, citing the Rappy case and this section of Wigmore, stated: "[The document used to refresh recollection] does not itself go before the jury, unless the other side puts it in." Portman v. American Home Products Corp., 2 Cir., 1953, 201 F.2d 847, 850.

In no case do we find that a statement used by a party to refresh the recollection of his witness is admissible by that party.10 In most Mann Act cases out-of-court statements are introduced for impeachment purposes; in none of these cases has the out-of-court statement been entitled to substantive weight or entitled to go to the jury without limiting instructions.11

Nardi v. United States, 6 Cir., 1926, 13 F.2d 710, 711, is similar to the instant case. That was a criminal prosecution for conspiracy to obstruct justice by influencing witnesses to leave the jurisdiction. The prosecution, in examining three of its witnesses, inquired about prior statement made by the witnesses. The witnesses disclaimed any knowledge about important facts that were essential to the Government's case. The prosecution prefaced a number of inquiries by the phrase, "to refresh your recollection", just as in this case. The trial court admitted the questions for the purpose of refreshing the witness' recollection. The Government did not claim to be surprised by the testimony nor did it offer in evidence the former statements to neutralize the testimony. The Sixth Circuit, in holding this to be improper procedure, said:

"To permit a witness thus to refresh his recollection would amount to the substitution of an unreliable statement for what the witness remembers and is prepared to say. The reason forbidding the use of such former statement for the purpose logically excludes inquiries embracing its substance; otherwise the thing directly impermissible would be made acceptable by indirection. We do not hold that such inquiries are prejudicial in every case, but, where the proof of guilt is reasonably disputable, the effect of repeatedly including contents of the statement in the questions, and thus indirectly placing the statement before the jury, cannot, we think, be otherwise than prejudicial." There is no merit in the Government's contention that a juror's request to see the statement made it admissible. By then the court had already admitted the statement without limiting its effect. The district judge's comment that the statement "is in evidence" and the omission of any qualifying instruction was tantamount to directing the jury to treat it as substantive evidence.

There is something to be said for the unorthodox view that probative value should be attached to a prior out-of-court statement, consistent or inconsistent, when there is reason to think a witness' first version of material facts is more likely to reflect the truth than the witness' version at the trial; by then the witness has had time to regret an impulsive statement and also time to fabricate a smooth and different tale.12 It is somewhat naive to assume that cross-examination under oath of a "victim" of the white slave traffic necessarily will produce evidence more trustworthy than the witness' statement given months before the trial, when the witness' memory of recent events is fresh and there is no time nor incentive, perhaps, to concoct a tale. But in the circumstances of this case even the minority who advocate acceptance of prior hearsay statements as substantive evidence would have to say that when Mrs. Eisenberg gave her statement she was in no condition to tell a trustworthy story.

The Government is in a difficult position in Mann Act cases, when it is so often necessary to rely on the victim as the principal witness for the prosecution and when so often the victim recants on the stand. But the plight of the prosecution furnishes no sound reason for lowering long-fought-over standards controlling the admission and effect of out-of-court statements. The defendant failed to receive a fair trial.

The judgment below is reversed and remanded.