EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Wednesday, November 18, 2009

Feigned Surprise Or The Real Thing?: Ohio Opinion Helps Explain Limits On Rule 607 Impeachment

Federal Rule of Evidence 607 provides that "[t]he credibility of a witness may be attacked by any party, including the party calling the witness." The federal rule eliminated the old "voucher rule," under which the party calling a witness was deemed to have vouched for his credibility and thus could not impeach him. A party, however, cannot call a party for the sole purpose of impeaching him through his prior inconsistent statement(s) as is made clear by cases such as United States v. Ince, 21 F.3d 576 (4th Cir. 1994). This fact is made even clearer in Ohio Rule of Evidence 607(A) as can be seen from the recent opinion of the Court of Appeals of Ohio, Twelfth District, in State v. Stevens, 2009 WL 3808375 (Ohio.App. 12 Dist. 2009).

In Stevens, Craig Stevens was convicted on three counts of rape based upon the following facts established at trial:

A.K., who was 19 years old at the time, went to visit her friend, C.S., [Stevens'] 17-year-old daughter, at [Stevens']...residence. After watching television,...C.S. told A.K. that she should spend the night. A.K. agreed...and joined C.S. in her bed....

Sometime after the girls went to sleep, [Stevens], who had since returned from a bar, entered his daughter's bedroom and asked A.K. if that was her car parked outside. A.K. responded affirmatively.  [Stevens] then informed A.K. that she could spend the night and left the room. When asked if she noticed anything unusual about [Stevens] that morning, A.K. stated that he was "intoxicated" and that she “could smell the alcohol.”

Several minutes later, [Stevens] came back into the girls' bedroom, walked to the side of the bed where A.K. was sleeping and started "rubbing" her. A.K., who was "halfway sleeping," thought it was "weird," but started to “doze back off .” However, when [Stevens] continued “touching” her, A.K. became scared and tried to wake up C.S. who was sleeping next to her. [Stevens] continued to touch A.K. for approximately a minute before he exited the room and began pacing in the hallway. While [Stevens] was gone, A.K. testified that she told C.S. that she was scared.

Shortly thereafter, [Stevens] again entered the girls' bedroom, "tried to crawl into bed," and began[engaging in more aggressive non-consensual sexual touching of A.K.]....

After [Stevens] left the room for the final time, A.K. called Tom Mapes, [Stevens] neighbor and husband of Dina Mapes, A .K.'s boss and close friend, and asked him to unlock his front door. A.K. then left [Stevens] house and ran across the street to the Mapes residence. Upon her arrival, Tom Mapes testified that A.K. was crying and acting "hysterical." Later that morning, A.K. called the police and went to the hospital where she submitted to a sexual assault evaluation.

After the incident, C.S. made a statement to police in which she indicated, inter alia, that she was "scared" after her father started touching A.K., that A.K. was "pinching [her] and kept nudging [her]" during the sexual encounter, and that A.K., in fact, did make a phone call that morning. When the prosecution called C.S. at trial, however, C.S. testified that A.K. never tried to wake her up, that A.K. never called the Mapes, and that, although she was "disgusted” by it, the entire sexual encounter between Stevens and A.K. was consensual.

The prosecution thereafter impeached C.S. through her prior inconsistent statement to the police, and this evidentiary ruling later formed part of the basis for Stevens' appeal. According to Stevens the trial court should not have permitted this impeachment under Ohio Rule of Evidence 607(A), which provides in relevant part that:

The credibility of a witness may be attacked by any party except that the credibility of a witness may be attacked by the party calling the witness by means of a prior inconsistent statement only upon a showing of surprise and affirmative damage.

According to Stevens, the case before the court was a case of "feigned surprise" to the testimony of C.S. by the prosecution, which, inter alia, "had notice that her testimony would be inconsistent because he "formally placed the state on notice that he intended to call [C.S.] as a witness," and because the state knew that C.S. and A.K. were "no longer friends because of the incident." The appellate court agreed with Stevens in principle but not in practice, finding that Stevens failed to prove that the prosecution had express notice that C.S. had changed her tune. According to the court,

As the Fifth District Court of Appeals recently found, a trial court does not abuse its discretion by finding that the state was surprised even though it was aware of the possibility that its witness may change her story where there has been no express notice by the witness that she would wholly deny her prior statement provided to the police....As a result, because C.S. never provided express notice to the state of her intention to recant her original statement, the trial court did not err, let alone abuse its discretion, by allowing the state to impeach C.S.'s credibility by means of her prior inconsistent statement.



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i know this case. it happened in my county. the prosecutor wasn't surprised by CS's testimony because she was never spoken to by the prosecutor. yes, the prosecutor indicted the defendant for sexually abusing CS without callling her to the grand jury or speaking to her once until the day of trial.

Posted by: christopher pagan | Nov 18, 2009 4:09:10 PM

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