I.
In Mаy 2000, the Montgomery County Police Department arranged a series of undercover drug buys from Gerald Myr *366 ick, a target of an investigation. The undercover agent assigned to plan and carry-out the buys was Officer Charles Carafano. Carafano initially arranged to purchase $100 worth of crack cocaine from Myrick at the pizza restaurant where Myrick worked in Derwood, Maryland. Myrick told Carafano to arrive at approximately 7pm on 3 May 2000 because “his guy” also would be there around 7pm. When Carafano arrived in front of the restaurant, Myrick took the $100 from him and, before retreating into the restaurant, told him that “his guy” was out back. Shortly thereafter, surveillance officers observed a silver Honda with temporary registration tags depart from the rear of the restaurant. Several minutes after the Honda departed, Myrick emerged from behind the restaurant and handed Carafano three rocks of crack cocaine wrapped in cellophane. At trial, Carafano identified Petitioner, Earl Walker, as the driver of the Honda.
Carafano arranged to buy another $50 worth of crack cocaine on the next day. Myrick and Carafano agreed to meet at Myrick’s house after work. Myrick met Carafano on the stoop in front of his house and, after receiving $50 from Carafano, walked down the street. Carafano’s colleague, Officer Helton, was surveilling the area. He observed Myrick meet with another man, later confirmed to be Roland Christian, at the street cornеr where they waited until the silver Honda drove-up. Myrick approached the driver’s side of the Honda while Christian approached the passenger’s side. Helton claimed that he saw Myrick reach into the driver’s side window while Christian reached into the passenger’s side window. They then withdrew their hands and placed them in their pockets. The Honda drove away. At trial, Helton identified the driver of the Honda as Walker. Twenty minutes after Myrick had left Carafano on the stoop, he returned and handed Carafano three rocks of wrapped crack cocaine.
A third officer was tasked with following the Honda and pulled it over after the drug deal was completed. In a search of the car, a wallet was recovered from the driver’s seat containing several credit cards bearing Petitioner’s name and $240 in cash, $70 of which was confirmed to be from the *367 marked bills given Myrick for the 3 May 2000 drug transaction at the pizza restaurant. A search of the Honda’s passenger recovered the $50 from the 4 May 2000 drug deal.
Myrick was compelled to testify at Petitioner’s trial in the Circuit Court for Montgomery County 1 after being promised immunity from state and federal prosecution for his part in the events. Prior to the trial and pursuant to a plea agreement, Myrick gave an oral statement to the police implicating Petitioner. At the start of Walker’s trial, however, the prosecutor proffered that she had learned that Myrick was no longer willing to testify and so she moved to compel Myrick’s testimony. The court delayed ruling on the motion until after the jury was selected. Outside the presence of the jury, the prosecutor called Myrick to the stand at which time he exercised his Fifth Amendment rights and indicated that he would refuse to testify. After both state and federal immunity from prosecution were secured for Myrick, the court granted the State’s motion to compel and Myrick took the stand to testify before the jury.
Myrick gave the following testimony, in pertinent part:
[PROSECUTOR]: [D'jid you meet with [Officer Carafano] for the purpose of distributing to him cocaine?
[MYRICK]: Yes.
Q: Did you make arrangements for him to meet you at [the restaurant] for that same transaction?
A: Yes.
Q: And, when you met with Officer Carafano, did he provide you with money?
A: Yes, he did.
Q: And did you go back into the [pizza] store?
A: I believe I did, or I walked around the store.
Q: And where were you going?
*368 A: To go pick up the stuff that I had on the ground.
Q: Where did you pick that stuff up?
A: It was right behind [the restaurant].
Q: And was there anybody behind [the restaurant] when you went back there?
A: Yes.
Q: Who was behind there?
A: Earl Walker.
Q: And did he provide you with that cocaine?
A: No.
Q: What was he doing back there, do you know?
A: I had owed him some money. I had told him when I get off work, I would pay him.
Q: And did you pay him the money that you had owed him?
A: Yes, ma'am.
Q: After you came back from [the restaurant], did you give the cocaine to Officer Carafano?
A: Yes, I did.
The prosecutor then announced her intention to impeach Myrick with his prior statement to the police implicating Petitioner. The statement, although reduced to a writing, was not signed or otherwise adopted previously by Myrick. The prosecutor acknowledged that “[w]e cannot get this statement in as substantive evidence under the
Nance
case
[Nance v. State,
The court found that the State was surprised by Myrick’s in-court testimony and permitted the State to attempt to impeach him. The prosecutor continued her examination of Myrick:
[PROSECUTOR]: Mr. Myrick, do you remember giving a statement to the police ... on the night of your arrest on May 4th of this year?
[MYRICK]: Yeah, partially; yes, ma'am.
Q: And do you remember in that statement indicating “I got [a] $100 rock of crack cocaine from Earl or Eric, drives a silverish colored Honda.” I have the statement if you want to see it?
A: Okay. I remember telling him from him bugging me, I remember of some sort. It is not really clear to me, because I was pretty much beat up at the time.
Q: But—
A: So I don’t know exactly what I was — you - know, I haven’t even really seen the statement myself. So I don’t know.
Q: Well, that is not true. I showed you the statement on Friday, did I not? ...
[DEFENSE COUNSEL]: Objection to the form of the question.
[MYRICK]: I don’t know.
[COURT]: Sustained.
[PROSECUTOR]: Mr. Myrick, were you not shown this—
A: Oh, yes.
Q: —statement on Friday?
A: This one here, yes, I was.
Q: And did you not tell the police “I got $100 rock of crack cocaine from Earl or Eric, drives a silverish colored Honda?”
*370 A: Yeah, I did say this on this thing.
The prosecutor continued her questioning of Myrick:
[PROSECUTOR]: Mr. Myrick, you and I met on Friday; is that correct?
[MYRICK]: Yes, ma'am.
Q: And at that time I gave you a copy of your statement, did I not?
A: Yes, ma'am.
Q: And did I not ask you at that time whether this statement was the truth?
A: Yes, ma'am.
[DEFENSE COUNSEL]: Objection. Can I approach the bench?
[Whereupon bench conference followed]
[DEFENSE COUNSEL]: Your Honor, based on the question [the prosecutor] just asked, what she did аnd what her contact with Mr. Myrick is, I am going to ask the Court for a mistrial because it puts her as a witness in this case and I don’t think she can continue on. It violates all right to confront evidence in this case as to what she said to him and what she did. So, I am going to move for a mistrial.
[THE COURT]: I don’t think this is the test. I think the test is she simply stuck with his answers. That is all. I don’t think it makes her a witness in the case. I will overrule your objection and deny your motion to mistrial.
[Whereupon the bench conference was concluded]
[PROSECUTOR]: Mr. Myrick, do you remember the question?
[MYRICK]: I don’t remember.
Q: [Y]ou reviewed the statement on Friday; is that correct?
[MYRICK]: Yeah, approximately, yeah.
Q: And at that time did I not ask you whether this was a true statement?
A: Yes, you did ask me that one.
*371 Q: And at that time did you say anything to me—
A: No, I didn’t say anything to you about it.
Q: Mr. Myrick, you did not want to testify today; is that correct?
A: No, I didn’t want to testify today.
Q: And, in fact, you are here by subpoena; is that correct? A: Yes, ma'am.
Q: And, in fact, you have been ordered to testify; is that correct?
A: Yes, ma'am.
Q: And you are afraid; is that correct?
[DEFENSE COUNSEL]: Objection.
[COURT]: Sustained. Leading.
[PROSECUTOR]: Have you been threatened in any way—
A: No.
Q: Did you tell me on Friday that you had been?
[DEFENSE COUNSEL]: Objection. Your Honor, can I approach the bench now, please?
[COURT]: All right.
[Whereupon bench conference followed]
[DEFENSE COUNSEL]: Your Honor, I move for mistrial, again. The suggestion now from that question is that my client — even if he was threatened, whatever his answer is— that my client was involved in something like that. That is unfair—
[COURT]: He has already said he wasn’t threatened. I will sustain the objection. I will deny the motion.
[DEFENSE COUNSEL]: Your Honor, I would ask the Court to disallow the State pursuing this avenue of question in where it is suggested that my client is involved in any way in his statements to [prosecutor], to his statements to the officers that night. He gave his reasons—
[COURT]: He has already said — you are stuck with his answer — he said he wasn’t threatened. So I am not going *372 to let you pursue that unless you have some particular evidence that you—
[PROSECUTOR]: Your Honor, when I met with him on Friday, in Mr. Schmidt’s presence, Mr. Myrick said that his father — his elderly parents — had been threatened, and I am not suggesting — I mean, I don’t know whether it is Mr. Walker — I am not sure if it is really important who has threatened him, but that is why he told me on Friday that he no longer wanted to cooperate, and he did not want to testify.
And I think, given the fact that I now have a witness who is totally changing their story, and I believe, not being truthful, I think I can bring out the fact that he is making all this up now.
[COURT]: Well, that is true. You can do that, but you have already asked him if he was threatened and he said he wasn’t.
[PROSECUTOR]: But why can I not ask him when I met with him on Friday in the presence of Mr. Schmidt, whether he told me at that time he had been threatened or not and that is why he didn’t want to testify and he can say yes or no.
[DEFENSE COUNSEL]: This is extrinsic; this is collateral. You know, we come into the situation where surprise is claimed and now you keep getting all the extra stuff with it that has nothing to do with it.
[COURT]: But their testimony bolsters the State’s argument for surprise. I will allow that question. I will overrule the objection.
[Whereupon the bench conference was concluded]
Q: Mr. Myrick, when I met with you on Friday, didn’t you tell me that you had been threatened?
A: No, I don’t recall. I don’t remember.
Q: You don’t recall telling me that?
A: No, ...
Q: And did you not tell me that you didn’t want to testify?
*373 A: Yes, I did tell you I didn’t want to testify because— Q: Because you were afraid?
A: No, because the statement I wrote was a lie, and I am not going to convict somebody with my wrongdoings.
Q: That is what you told me on Friday.
A: No. That is what — I didn’t tell you anything----
Q: Mr. Myrick, on Friday, when we met in the presence of your lawyer ... you knew I was a State’s Attorney, did you not?
A: Right. Yeah. I just wanted to hear what you were trying to say to me.
Q: And did you not tell me that day that you had been threatened and that is why you didn’t want to testify? [DEFENSE ATTORNEY]: Objection.
[THE COURT]: Sustained.
Walker ultimately was acquitted of the counts relative to the 3 May 2000 episode, but convicted of the charges pertaining to the 4 May 2000 transaction. The court imposed concurrent sentences of five years on each conviction, with all but eighteen months suspended, followed by three years of supervised probation.
II.
The flagship issue of Petitioner’s appeal to the Court of Special Appeals questioned whether the State may impeach its own witness with a prior inconsistent statement, under Maryland Rule 5-607 (2000), when the State is not surprised by the witness’s testimony.
2
Walker v. State,
The Court of Special Appeals held that a party is not required to demonstrate surprise before impeaching its own witness; rather, the only limit on a party’s impeachment of its own witness is the subterfuge limitation which it concluded was not violated in this case. To reаch its conclusion, the intermediate appellate court reviewed the history and purpose of the common law “voucher rule,” explaining that the rule was predicated on the notion that “a party calling a witness ‘vouched’ for the credibility of that witness.”
The Court of Special Appeals reasoned further that because the surprise exception was developed to limit the harsh application of the voucher rule, the elimination of the voucher rule necessarily meant that the surprise exception to that rule also was no longer material to the analysis of cases where a party sought to impeach its own witness.
It was suggested by our intermediate appellate colleagues that the subterfuge limitation to Md. Rule 5-607 does not apply unless the State has full, advance knowledge that the witness will recant his or her prior statement at trial.
Finding that the voucher rule and its surprise exception are no longer part of Maryland law, the court concluded in Walker’s case that the prosecutor’s mere knowledge that Myrick
*377
was unwilling to testify did not mean that the State called him to the stand merely as a subterfuge to gain admission of his prior statement implicating Walker. There were, the court found, other legitimate reasons for calling Myrick to testify.
Walker asserted that the trial court failed to weigh the probative value of Myrick’s prior statement against its prejudicial effect on Walker because the court did not consider the statement specifically before authorizing its use to impeach Myrick. The State pointed-out that at an earlier hearing on a motion in limine the court was informed as to the substance of Myrick’s statement to the police.
The Court of Special Appeals, referring to its
Pickett
decision, defined probative value as the “likelihood of actually damaging the witness’s credibility.”
Id.
The test for determining the probative value of Myrick’s testimony became the same test for determining whether the prosecution called the
*378
witness as a subterfuge — “whether the witness has something useful to contribute to the prosecution’s case other than the introduction of his prior inconsistent statement.”
Id.
The court noted that the prejudice component of the balancing test required consideration of whether the evidence prejudiced the defendant unfairly or misled or confused the jury. Finding that even though the record in this case did not reflect whether the trial court explicitly conducted a balancing test, the court deferred to the “strong presumption that judges properly perform their duties” and held that application of the Rule 5 — 403 balancing test “compels the conclusion that Myrick’s prior inconsistent statement was not introduced as mere subterfuge,” and the trial court did not err in allowing the State to use the statement for impeachment purposes.
The Court of Special Appeals then turned to Walker’s second assertion of error, the trial court’s denial of his request for a mistrial after the prosecutor questioned Myrick about a meeting between the prosecutor and Myrick.
Id.
Reiterating our standard for the review of a trial court’s disposition of a motion for a mistrial, the court observed that appellate review “is limited to whether the trial court abused its discretion in denying the motion for mistrial,” and the trial court will not be reversed “unless the defendant clearly was prejudiced by the trial court’s abuse of discretion.”
Walker, relying solely on
United States v. Edwards,
III.
We granted certiorari on Walker’s petition to consider whether, in order to impeach its own recanting witness, the State first must show surprise by the apparent recantation and whether the prosecutor’s cross-examination of Myrick as to the pre-trial conversation between them provided grounds for a mistrial.
A.
Walker argues that the Court of Special Appeals’s holding “clouds an important distinction between two separate issues: what is required before a party can call a witness to the stand, and what is required before a party may impeаch its own witness with a prior inconsistent statement.” Petitioner maintains that surprise should be a necessary element before a party may impeach its own witness. He characterizes the intermediate appellate court’s holding as permitting a party to call a witness so long as the party has a “legitimate purpose” for calling the witness other than introducing a prior statement implicating the defendant. The “legitimate purpose” hurdle, according to Petitioner, is so low that it could be *380 overcome “in virtually every case and for every witness that is called to the stand.” Myrick’s testimony is an example, cóntends Petitioner, of testimony that is merely cumulative to that already presented and not material to the issues involved at trial. In this regard, Petitioner claims that the intermediate court incorrectly analogized the present matter to our decision in Bradley in finding Myrick’s testimony admissible.
Walker also criticizes the Court of Special Appeals’s finding that the prosecutor appropriately questioned Myrick about the subject areas which triggered the need for the impeaching examination. Again, he attacks the court’s use of Bradley. Petitioner contends that the “independent area of inquiry” standard established in Bradley set forth a modified, albeit narrowed, version of the “voucher rule.” Where the common law voucher rule prohibited a party from calling a witness who was expected to provide unfavorable testimony, Bradley narrows the scope of the exclusion to the expectations of individuаl questions, thereby restricting the State to asking its witness only questions expected to elicit favorable and probative responses. Questions that the State does not think will provide favorable responses, but only will trigger the need to cross-examine the witness with an otherwise inadmissible statement, cannot be asked, Petitioner suggests. Pursuant to his interpretation of Bradley, Walker explains that the element of surprise is still an important part of the “independent inquiry” analysis because surprise would indicate that the prosecutor did not have “full knowledge” that his or her questions would contribute nothing to the State’s case.
Walker also claims that the court misread that part of
Bradley
which stated when “failure to inquire into a possibly independent area of inquiry could create a gap in the witness’s testimony such that a negative inference may arise against the prosecution,” the State is permitted to “fill such a gap by questioning and then impeaching the witness.”
Bradley,
The State responds that the Court of Special Appeals correctly held that the State may impeach its witness with a prior inconsistent statement as long as the State did not call the witness as a mere subterfuge to introduce the prior statement. Respondent points to the language of Rule 5-607 as clear support for the court’s holding: “ft]he credibility of a witness may be attacked by any party, including the party calling the witness.” The subterfuge limitation, Respondent contends, is the only proper limitation on a party who seeks to impeach its own witness. If Petitioner’s suggestion were adopted and a brightline rule created, the result would give new life to the voucher rule eliminated by the adoption of Rule 5-607. A further result would be that a party not surprised by its witness recanting or changing his or her story on the witness stand may not call that witness for any purpose or, if the witness were permitted to testify, the party may not impeach the recanting witness with a prior inconsistent statement. Respondent naturally agrees with the federal and state cases referred to by the intermediate appellate court refusing *382 to engraft a requirement of surprise onto Rule 5-607 or its other courts’ equivalents.
The State maintains that Myrick was not called by the prosecutor as a subterfuge because Myrick had other useful information to impart on direct examination. Respondent finds Walker’s appellate arguments to be inapposite to those he presented at trial regarding Myrick’s importance to the proceedings. At trial, Walker argued that Myrick “[was] somebody necessary to the State’s case,” and he moved to dismiss the first two counts arising from the May 3 events if Myrick did not testify. Respondent therefore finds unpersuasive and contrary to Walker’s statements at trial Petitioner’s present allegations that Myrick’s testimony was merely cumulative. The State also argues that the prosecutor’s inquiry into why Myrick paid Walker the $100.00 was not an independent area of inquiry prohibited by Bradley. If calling Myrick was not a subterfuge, then impeaching him with his prior inconsistent testimony was permissible.
Respondent retorts that Petitioner’s assertion that defense counsel should have been allowed to examine Myrick outside the presence of the jury does not provide a basis for reversal because Walker only suggested that course of action and did not object to the court’s ruling denying that request.
5
Even if the issue had bеen preserved properly for review, the State contends the trial court properly exercised its discretion in permitting Myrick to testify in open court without first subjecting his anticipated testimony to scrutiny without the jury present.
See Bruce v. State,
Respondent continues to urge that the trial court weighed the probative value of Myriek’s prior statement against its
*383
potential prejudicial impact, correctly concluding that the probative value outweighed the potential for unfair prejudice. Agreeing with the intermediate appellate court that the record is unclear whether the trial judge reviewed the actual written statement before it permitted the State to impeach Myrick with its contents, the State argues nonetheless that there is a strong presumption that trial judges know the law and perform their duties correctly and, regardless, the Court of Special Appeals was correct that it would be inappropriate to remand the case back to the trial court for that limited purpose. Admitting that the prior inconsistent statement was prejudicial to the defendant, though not unfairly so, the State contends that the impeachment value of the statement was considerable and outweighed the prejudice. Myrick’s testimony affirmatively damaged its case, argues the State, because his testimony indicated that his statement to the police was a lie. Impeachment of his credibility therefore was important to rehabilitate the State’s case. Finally, Respondent assеrts that Walker’s arguments mistakenly confuse substantive evidence with impeachment evidence. Even though the prior inconsistent statement would not be admissible as substantive evidence, it is permissible to use it for impeachment purposes because the purpose of the latter is to “attack the credibility of a witness who has offered detrimental testimony,” not to provide substantive evidence of guilt.
Stewart v. State,
B.
At common law the voucher rule provided that the party calling a witness vouched for the credibility and veracity of that witness’s testimony.
Patterson v. State,
The voucher rule is no longer a part of Maryland law.
6
Former Maryland Rule 1-501, now Maryland Rule 5-607, was adopted in 1989 and eliminated the voucher rule by providing that the credibility of a witness may be attacked by any party, including the calling party.
7
See Spence,
Petitioner relies on our holding in
Bradley
to support his argument that surprise still needs to be shown before a party may impeach its own witness. In
Bradley
the State charged
*385
the defendant with kidnaping, armed robbery, and use of a handgun in the commission of a felony or crime of violence. The victim testified that a man approached her as she was getting out of her car, placed a gun against her stomach, forced her to drive several blocks before ordering her out of the vehicle, and absconded with her car.
Bradley,
This Court concluded, however, that although the earlier part of Adrian Bradley’s testimony was relevant and admissible, the latter portion was elicited solely to allow the State to impeach him through the use of otherwise inadmissible hearsay evidence and thus error entitling the defendant to a new trial. We held that “it is impermissible for a party in a criminal case, over objection, to venture into an independent
*386
area of inquiry solely for purposes of ‘circumventing the hearsay rule and parading inadmissible evidence before the jury.’ ”
Bradley
built upon
Spence.
In
Spence
the State called a witness, Cole, knowing he would contribute nothing to the State’s case other than to get before the jury a hearsay statement implicating the defendant. When Cole did not testify as the State anticipated, the prosecutor called another witness to the stand to testify as to Cole’s earlier statements regarding the defendant. The State admitted that the latter witness’s testimony was inadmissible as substantive evidence and was only admissible to impeach Cole’s prior testimony.
Spence,
We qualified our holding in
Bradley
by stating that “our holding is not applicable where there is no clearly independent area of inquiry or where failure to inquire into a possibly independent area of inquiry could create a gap in the witness’s
*387
testimony such that a negative inference may аrise against the prosecution.”
Petitioner asserts that
Bradley
reinvigorates the surprise prerequisite as it existed under the voucher rule. We interpret
Bradley
to mean that a showing of surprise by the calling party is but one possible indication that the calling party did not have full knowledge that the witness would recant on the stand. In the absence of such knowledge, the party may impeach its own witness’s testimony pursuant to Rule 5-607. As we stated in
Bradley,
if the State did not create the need to impeach its witness’s testimony, then it is permitted to impeach its witness with a prior inconsistent statement.
We agree with the intermediate appellate court’s analysis of this issue. 9 Unlike the scenarios presented by *389 Spence and Bradley, the witness in the present case, Myrick, provided testimony relevant to the State’s case and the recanting portion of his testimony was not clearly an attempt by the prosecution to admit inadmissible inculpatory evidence. Viewed in a light most favorable to Walker, the inference that the prosecutor might have been suspicious that Myrick would give a different “version” in his testimony does not mean necessarily that the prosecutor called him merely as a subterfuge or that the pertinent line of questioning was an independent area of inquiry designed to open the door to admit otherwise inadmissible evidence to impeach Myrick’s recanting statements. Like the witness in Bradley, Myrick possessed relevant testimony to offer aside from the statements amenable to impeachment. Unlike the witness in Bradley, however, the State in Walker’s trial did not embark on an independent line of inquiry intending to elicit statements requiring impeachment. The prosecutor’s pertinent line of questioning was intended to elicit information about the meeting between Myrick and Walker on 8 May 2000 at the pizzeria. Myrick’s testimony departed from the prosecutor’s expectations when he was asked about the transaction behind the pizzeria. The prosecutor anticipated that Myrick would testify that Walker gave him the cocaine in exchange for the money given Walker by Carafano. He departed from his statement to the police to that effect and instead said that he paid Walker for some unrelated debt behind the pizzeria and picked some cocaine up from the ground to give to Carafano. The prosecutor may *390 have been suspicious as to some things Myriek might say, but, on this record and without more, that does not imply solely that she had “full knowledge” that he was going to givе that particular variation on his statement to the police at trial. In fact, the record reveals that the prosecutor had every reason to expect that Myriek would testify as anticipated. Although Myriek initially refused to testify at trial and indicated his intent to exercise his Fifth Amendment rights if called by the prosecution, the State secured both State and federal immunity from prosecution in order to ensure that Myriek would testify truthfully about the events implicating Walker. 10
The series of questions from the prosecutor intended to elicit the testimony that Myriek had received the cocaine from Walker after giving him Carafano’s money was not an “independent line of inquiry.” Without those questions, the direct examination of Myriek would be incomplete and well could have lead the jury to draw inferences adverse to the State’s case. The jury would be left wondering what happened behind the pizza restaurant where both Myriek and Walker were present — as Myriek testified. We agree with the Court of Special Appeals when it stated “[f]or the State to stop its questioning with the fact of payment, and not prove the reason for it, would paint an incomplete picture that might leave doubt in the jury’s mind.”
Walker,
*391
Petitioner and Respondent naturally disagree as to whether the introduction for impeachment purposes of Myrick’s prior statement to the authorities was more unfairly prejudicial than it was probative. Walker contends that, pursuant to the Court of Special Appeals’s opinion in
Pickett v. State,
the trial judge was required to weigh the testimony’s probative value against its “tendency to prejudice the defendant unfairly or to confuse the jury.”
It is equally clear from the record that the trial judge weighed the prejudicial effect of the impeachment testimony against the probative value of that testimony in permitting its use as impeachment evidence and properly exercised his discretion. Myrick’s prior statement obviously prejudiced Walker because the statement directly implicated Walker as a participant in the distribution of the cocaine. The mere fact that Myrick’s prior statement was not advantageous to the defense at trial does not make it unduly or unfairly prejudicial within the meaning of the balancing test. The probative value of Myrick’s prior statement, however, was significant because it indicated that Myrick had lied about his meeting with *392 Walker and impeached his testimony at trial. The prejudice to Walker did not outweigh the considerable probative value of his prior statement and the trial judge therefore did not abuse his discretion.
IV.
The second issue before us is whether the trial court erroneously denied Walker’s request for a mistrial after the prosecutor “testified” at trial, in effect as a State’s witness, about pre-trial conversations she had in her office with Myrick. Defense counsel, through his timely unsustained objections (see supra at 370 and 372) and timely-made, but denied, motions for mistrial (see supra at 370 and 371), properly preserved for appellate review the issue of whether it was proper for the prosecutor to question Myrick about statements he allegedly made to her during a pre-trial meeting. Defense counsel twice moved for mistrial during the prosecutor’s direct examination of Myrick. Defense counsel predicated his first motion for mistrial on the basis that the line of questioning put the prosecutor “as a witness in this case,” thus “violating Walker’s] right to confront evidence.” In denying this motion, made at the inception of this line of questioning, the trial judge made clear his ruling that, in his view, the prosecutor was not “testifying.” Walker moved for a mistrial a second time when the prosecutor’s questions insinuated that Myrick was threatened by Walker.
Petitioner alleges that the form of the prosecutor’s questions allowed her to testify without subjecting her to cross-examination by the defense. Walker contends that the assertions embedded in the prosecutor’s questions likely were viewed by the jury with heightened credibility as she was an Assistant State’s Attorney. The form of her questions allowed her to tell the jury that: (1) she met with Myrick in her office three days before trial; (2) Myrick told her he was afraid to testify; and (3) he had been threatened regarding his impending testimony. These assertions made clear to the jury that it should believe Myrick’s prior statement because his trial *393 testimony to the contrary resulted from threats and intimidation from sources about which the jury was left to speculate.
Petitioner argues, as he did before the intermediate appellate court, that this case is similar to
United States v. Edwards,
Respondent argues that the line of questioning concerning the pre-trial meeting between the prosecutor and Myrick was proper cross-examination of a hostile witness and the trial judge correctly exercised his discretion to deny the requested mistrial based on that line of questioning. Respondent looks for support in our decision in
Lyba v. State,
The important principles implicated by this second issue are the accused’s right to a fair trial and the special duties imposed on public prosecutors. These principles often are intertwined such that when a prosecutor fails to fulfill his or her unique duties the criminal defendant is deprived of a fair trial.
*394
Article 21 of the Maryland Declaration of Rights еchoes the language of the Sixth Amendment to the United States Constitution, providing that “in all criminal prosecutions, every man hath a right ... to be confronted with the witnesses against him.... ” We stated in
State v. Collins,
Prosecutors are held to even higher standards of conduct than other attorneys due to their unique role as both
*395
advocate and minister of justice. The special duty of the prosecutor to seek justice is said to exist because the State’s Attorney has broad discretion in determining whether to initiate criminal proceedings.
Brack v. Wells,
The prosecutor in a criminal case shall:
(a) refrain from prosecuting a charge that the prosecutor knows is not supported by probable cause;
(b) make reasonable efforts to assure that the accused has been advised of the right to, and the procedure for obtaining, counsel and has been given reasonable opportunity to obtain counsel;
(c) not seek to obtain from an unrepresented accused a waiver of important pretrial rights, such as the right to a preliminary hearing;
(d) make timely disclosure to the defense of all evidence or information known to the prosecutor that tends to negate the guilt of the accused or mitigates the offense, and, in connection with sentencing, disclosure to the defense and to the tribunal all unprivileged mitigating information known to the prosecutor, except when the prosecutor is relieved of this responsibility by a protective order of the tribunal; and
(e) exercise reasonable care to prevent an employee or other person under the control of the prosecutor in a criminal case from making an extrajudicial statement that
*396 the prosecutor would be prohibited from making under Rule 3.6.
The special duties of the prosecutor take concrete form in the rule against prosecutorial vouching and the advocate-witness rule.
The Ninth Circuit in
Edwards
reversed the defendant’s criminal conviction upon concluding that the prosecutor in that case violated both the rule against prosecutorial vouching and the advocate-witness rule.
In
Edwards,
the improper behavior was the prosecutоr’s role in discovering a crucial piece of evidence that linked the defendant to the crime. The prosecutor then called two detectives to testify that they had observed the prosecutor discover the pertinent evidence. As the discoverer of the evidence, the prosecutor was “a silent witness vouching for the authenticity of this piece of evidence before a jury in a case in which he’s trying before the jury.”
*397
The advocate-witness rule is a rule of professional conduct that prevents an attorney from taking the witness stand in a case he or she is litigating. Maryland Rule of Professional Conduct 3.7 (2003).
12
The
Edwards
court observed that the advocate-witness rule assumes heightened importance in a criminal case because “jurors will automatically presume the prosecutor to be credible and will not consider critically any evidence that may suggest otherwise.”
The Court of Special Appeals observed in
Curry v. State,
We established a framework for weighing assertions of prosecutorial bolstering through improper remarks in
Wilhelm v. State,
In the course of the prosecutor’s closing argument in Cook’s trial, numerous remarks and references were made to statistics about crime in the community that defense counsel argued were prejudicial and which prompted defense counsel to move for a mistrial.
Applying these principles, we concluded that the trial judge in Wilhelm’s trial properly exercised his discretion in denying the requested mistrial and finding the prosecutor’s remarks made in the course of his opening statement not to be sufficiently prejudicial.
A somewhat more apposite situation arose in
Elmer v. State,
Mr. Brown, did you ever make the statement that when you came down around the curve ... your attention was drawn to the people that were running from your left, and that at that point in time Allen Elmer [the other co-defendant] put that gun out the window, pulled the trigger, the gun boomed, and the first thing you said to him is what the F did you do? Did you ever make that statement?
On appeal, Elmer argued that the rules of evidence governing hearsay and his confrontation rights were violated by the
*400
repeated recitation of Brown’s alleged statement as presented in question format by the prosecutor.
Once Brown’s counsel explained at sidebar that his client had never made the statement, however, the prosecutor had no business maintaining this line of inquiry and should have withdrawn the question. By repeating the question in verbatim detail, even down to editing out the “F” word for the benefit of propriety, the prosecutor only exacerbated the potential for the question to mislead the jury into treating the question itself as actual evidence.... When the prosecutor asked his fourth and final question (which went unanswered), he even went so far as to ask, ‘Did you ever communicate to me that you were going to testify..... ’ This gave the jury the clear impression that the prosecutor’s entire line of questions regarding Brown’s prior inconsistent statement was based on personal knowledge and derived from Brown himself. Not only did the prosecutor have no ability to prove this, it was actually known by him to be false.
We observed in our opinion in
Elmer
that “[i]t is misconduct for a lawyer to inject inadmissible matters before a jury by asking a question that suggests its own otherwise inadmissible answer, ‘hoping that the jury will draw the intended meaning
*401
from the question itself.’ ”
The U.S. Supreme Court addressed the egregious
14
misbehavior of a federal prosecutor in thе course of cross-examination in
Berger v. United States,
misstating the facts in his cross-examination of witnesses; of putting into the mouths of such witnesses things which they had not said; of pretending to understand that a witness had said something which he had not said; of suggesting by his questions that statements had been made to him personally out of court, in respect of which no proof was offered; of pretending to understand that a witness had said something which he had not said and persistently cross-examining the witness upon that basis; of assuming prejudicial facts not in evidence; of bullying and arguing with witnesses; and in general, of conducting himself in a thoroughly indecorous and improper manner.
Id.
Although the trial judge sustained objections to some of the prosecutor’s questions and gave limiting instructions to the jury, the Supreme Court deemed that “stern rebuke and repressive measures” were required and, if those measures were unsuccessful, granting a mistrial would be warranted.
In the two cases bundled in Wilhelm, the evidence presented at trial was found to be substantial and the improper prosecutorial remarks did not bear on issues central to the case. The references in opening and closing arguments made by the prosecutors in Wilhelm about the degree and nature of the criminal activities occurring in the community referred to alleged matters of common knowledge and were not assertions by the prosecutor that he had personal knowledge about *403 witness testimony or evidence. Thus, the comments in both cases were not unfairly prejudicial to Cook or Wilhelm.
The prosecutor’s conduct in Elmer was more prejudicial than the conduct at issue in Wilhelm because the prosecutor in Elmer conveyed the impression to the jury that he had personal knowledge that the witness, Brown, had made the inadmissible statement. By indicating that he had personal knowledge of Brown’s alleged statement, he forced the jury to evaluate the truthfulness of Brown’s denial that he made the contested statement in terms of whether the State’s Attorney was lying about the matter. The State’s Attorney essentially communicated to the jury that it was Brown’s word against his. Such a situation unfairly prejudiced the defendant because the State’s Attorney could not be cross-examined on his assertions of fact and the facts asserted were not properly in evidence. The prosecutor unfairly misled the jury through the improper form and content of his questions to Brown. Because the questions asked of Brown assumed facts not in evidence, the Elmer jury was misled and improperly influenced by the prosecutor. By conveying the impression to the jury that he had superior information of facts not in evidence, the prosecutor’s inquiry was highly prejudicial and inadmissible in Elmer.
The prosecutor in Walker’s trial made prejudicial assertions of personal knowledge of facts not in evidence and engaged in improper cross-examination. Like the prosecutor in Elmer, the prosecutor here created a situation where the jury was required to weigh the prosecutor’s “word” against the witness’s “word.” The prosecutor intimated, by her questions, that Myrick was lying on the stand and that in fact he had made inconsistent statements to the prosecutor before trial. The prosecutor also stated multiple times that she knew Myrick’s mental state and that he was afraid of telling the truth on the stand. The effect of her repetitious assertions that she knew Myrick was changing his story on the stand out of fear of retaliation encouraged the jury to accept the content of her questions as evidence. That she conveyed her personal *404 view that Myrick was lying on the stand may have caused the jury to give more weight to her “word” than Myrick’s “word.” Their stories were inconsistent and therefore only one could be telling the truth.
The fact that the prosecutor in this case made improper assertions of personal knowledge on examination of her own witness, rather than on cross-examination of the defendant’s witnesses as in Elmer, is not material to our analysis. The jury has greater reason to assume the prosecutor is telling the truth regarding the State’s own witnesses because those witnesses supposedly are on the same “team” as the prosecutor. Therefore, the prosecutor, it may have been assumed, would have more reason to know whether her the witness was lying than if the witness was called by the adverse party. By asserting that she knew Myrick was lying, the prosecutor engaged in a form of reverse prosecutorial vouching.
In the end, it was an abuse of discretion for the trial judge to deny. Walker’s request for a mistrial on this ground. Not unlike
Elmer,
the prejudicial remarks made by the prosecutor in this case tainted the fairness of Walker’s trial. Although there was other evidence linking him to the crimes, in the absence of Myrick’s testimony, Myrick was nonetheless an eyewitness whose testimony corroborated that of the police officers. The importance to a fact finder of eyewitness testimony is not to be overlooked. As we so recently stated in
Collins v. State,
As we stated in
Klauenberg v. State,
JUDGMENT OF THE COURT OF SPECIAL APPEALS REVERSED; CASE REMANDED TO THAT COURT WITH DIRECTIONS TO REVERSE THE JUDGMENT OF THE CIRCUIT COURT FOR MONTGOMERY COUNTY AND TO REMAND THE CASE TO THE CIRCUIT COURT FOR A NEW TRIAL; COSTS IN THIS COURT AND THE COURT OF SPECIAL APPEALS TO BE PAID BY MONTGOMERY COUNTY, MARYLAND.
Notes
. Walker was charged with two counts regarding the events of 3 May 2000, Distribution of Cocaine and Conspiracy to Distribute Cocaine, and one count each of Distribution of Cocaine and Conspiracy to Distribute Cocaine for the 4 May 2000 activities.
. There were actually a total of four questions put to the Court of Special Appeals: (1) Did the trial court err by allowing the State to impeach its own witness with a prior unsworn statement when the State was not surprised by that witness's testimony?; (2) Did the trial court err in denying appellant’s request for a mistrial?; (3) Did the trial court err in denying appellant's motion in limine to exclude all hearsay statements made by a non-defendant during a drug transaction about having to contact "his guy”?; and (4) Was the evidence sufficient to convict appellant of the charges stemming from the May 4 transaction? *374 We shall review here the intermediate appellate court’s opinion only as to the first two issues as they are the only ones implicated by the questions posed in Petitioner’s successful certiorari petition in this Court.
. The Court of Special Appeals noted that Maryland Rule 5-607 (2002) is a verbatim adoption of Federal Rule of Evidence 607. The court observed that the federal courts and states that have adopted rules that are verbatim replications of the federal rule, like Maryland, have refused to read a surprise requirement into the rule. For citation to other state court cases refusing to require surprise for a party to impeach its own witness, see
Walker v. State,
. Maryland Rule 5-403 (2003) provides: "Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence."
. The Court of Special Appeals agreed with the State that "appellant [Walker] аcquiesced in the court’s decision not to adopt that recommendation without further objection."
Walker,
. Nor is it part of federal law. Maryland Rule 5-607 was modeled on Federal Rule of Evidence 607 and is identical in verbiage. The commentary to the Federal Rule asserts that "[t]he rationale for the common-law rule was never very persuasive,” and states that Rule 607 "recognizes that a party does riot necessarily vouch for a witness; in fact, a party may have no choice but to call an adverse witness in order to prove a case.”
. The committee note to Rule 5-607 clearly states that "[t]his Rule eliminates the common law 'voucher' rule,” and "[i]t does not permit a party to call a witness solely as a subterfuge to place an otherwise substantively inadmissible statement before the jury.”
. Petitioner's initial argument, that the "legitimate purpose" standard is too lax and undiscriminating, is flawed. There must be a legitimate purpose in calling a witness beyond merely as a means of putting before the jury inadmissible evidence used to impeach the calling party's own witness. Our discussion, supra, of the subterfuge and independent inquiry limitations on Rule 5-607 demonstrate that, although there must be a legitimate purpose for the testimony, it cannot be the result of subterfuge or for the purpose of conducting an independent inquiry once the witness has taken the stand. Furthermore, the threshold standards for calling any fact witness are merely that the witness have personal knowledge of the matter attested to and that the matter be relevant to the case at hand. See Maryland Rules 5-401, 5-402, and 5-602.
. We also find guidance in the interpretation of Federal Rule of Evidence 607, the federal corollary to Md. Rule 5-607. Judge Posner, writing on behalf of the Seventh Circuit U.S. Court of Appeals, stated that Rule 607 would be abused if a party were to “call a witness that it knew would not give it useful evidence, just so it could introduce hearsay evidence ... in the hope that the jury would miss the subtle distinction between impeachment and substantive evidence — or, if it didn’t miss it, would ignore it.”
United. States v. Webster,
734 F.2d
*389
1191, 1192 (7th Cir.1984). The limitation on Rule 607, however, does not apply if the party calls the witness for a "good faith purpose” and the party does not expect the negative testimony. The calling party is then permitted to impeach its witness.
United States v. Peterman,
. The State specifically arranged for federal immunity in response to Myrick's request that he be given immunity from prosecution under sections 18 and 21 of the United States Code dealing with drugs and general criminal offenses.
. Additionally, Petitioner did not preserve properly this issue for appellate review as Walker did not object at trial on these grounds. Pursuant to Maryland Rule 8-131(a), therefore, we are not obliged to decide this issue.
See Walker v. State,
. Rule 3.7, as adopted by Maryland Rule 16-812, states:
Lawyer as witness.
(a) A lawyer shall not act as advocate at a trial in which the lawyer is likely to be a necessary witness except where:
(1) the testimony relates to an uncontested issue;
(2) the testimony relates to the nature and value of legal services rendered in the case; or
(3) disqualification of the lawyer would work substantial hardship on the client.
(b) A lawyer may act as advocate in a trial in which another lawyer in the lawyer's firm is likely to be called as a witness unless precluded from doing so by Rule 1.7 or Rule 1.9.
. The State also argued that the statements were admissible under Maryland Rule 5-410 because the Rule applies to the defendant who made the plea or participated in the plea discussions. We found in that regard that because Elmer was not a participant in the plea discussions between Brown and the State, the Rule did not proscribe the State's use of the statements as to Elmer.
. We do not suggest, by inclusion in our analysis of this discussion of Berger, that the prosecutor's conduct there equates to what we find in the record of the present case. As far as we have been directed by Petitioner, the sole incident under consideration here was the prosecutor's pertinent questioning of Myrick.