EvidenceProf Blog

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

Monday, December 7, 2009

You Can't Look In On One Way Eyes, Ohio: Ohio Opinion Reveals Differences Between Federal and Ohio Rule Of Evidence 607

Back in the common law days, courts applied the "voucher rule," under which the party calling a witness was deemed to have vouched for the witness' credibility and thus could not impeach its own witness' credibility. The voucher rule was abolished by Federal Rule of Evidence 607, which provides that "[t]he credibility of a witness may be attacked by any party, including the party calling the witness." Clearly, there is nothing in the Rule itself that limits parties in their ability to impeach their own witnesses, but judges have imposed limitations on such impeachment. For instance, in United States v.Webster, 734 F.2d 1191, 1192 (7th Cir. 1984), Judge Posner found that:

it would be an abuse of the rule, in a criminal case, for the prosecution to call a witness that it knew would not give it useful evidence, just so it could introduce hearsay evidence against the defendant 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. The purpose would not be to impeach the witness but to put in hearsay as substantive evidence against the defendant, which Rule 607 does not contemplate or authorize. We thus agree that “impeachment by prior inconsistent statement may not be permitted where employed as a mere subterfuge to get before the jury evidence not otherwise admissible.”

In other words, the prosecution can't call a witness for the sole purpose of impeaching the witness through inadmissible hearsay, meaning that there usually shouldn't be a problem with the prosecution calling a witness for the purpose of impeaching the witness through statements that qualify as nonhearsay or meet an exception to the rule against hearsay. See, e.g., Margaret Meriwether Cordray, Evidence Rule 806 and the Problem of Impeaching the Nontestifying Declarant, 56 Ohio St. L.J. 495, 548 (1995). As the recent opinion of the Court of Appeals, Eighth District, in State v. Bell, 2009 WL 4406068 (Ohio App. 8 Dist. 2009), reveals, Ohio Rule of Evidence 607(A) itself makes this fact clear.

In Bell, Tyrance Bell was convicted of domestic violence based upon an altercation that he had with his fiancée

At trial, the victim denied that Bell threatened to harm her with a knife. She claimed that the knife the officers found was used by Bell to cut out damaged drywall in the living room. She also denied that Bell touched her.

The prosecution then impeached the victim through her prior inconsistent statements made to the 911 dispatcher and responding officers on the night of the altercation

When confronted with a recording of her 911 call, she acknowledged that she could be heard telling Bell to get off of her, but she claimed Bell was simply trying to grab the phone from her. She claimed she lied to the 911 operator and the officers because she was intoxicated and angry at Bell for bringing his ex-girlfriend to the house. She denied sustaining any injuries, including a swollen eye depicted on a photograph taken of her at the time. She stated that in spite of the events..., she and Bell still intended to be married.   

After he was convicted, Bell appealed, claiming that this impeachment was impermissible under Ohio Rule of Evidence 607(A), which provides 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. This exception does not apply to statements admitted pursuant to Evid.R. 801(D)(1)(A), 801(D)(2), or 803.  

According to Bell, the prosecution's impeachment of the victim was impermissible because it failed to show "surprise" or "affirmative damage" as required by the Rule. But the problem for Bell was that these requirements only apply when a party is being impeached by inadmissible hearsay, not when a witness is being impeached under a Rule 803 exception to the rule against hearsay, and the court found that the victim's statements constituted excited utterances under Ohio Rule of Evidence 803(2), rendering Bell's argument inapposite.



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