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Univ. of South Carolina School of Law

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Wednesday, July 27, 2011

Not Surprising: Court Of Appeals Of Ohio Reverses Conviction Based On Prosecution's Improper Impeachment Of Own Witness

Ohio Rule of Evidence 607(A) 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.

And because the prosecution impeached its own witness through a prior inconsistent without a showing of surprise and affirmative damage in State v. Holloway, 2011 WL 2899596 (Ohio App. 8 Dist. 2011), the Court of Appeals of Ohio, Eighth District, had to reverse the defendant's conviction.

In Holloway, Reginald Holloway and Stephanie Webb were involved in multiple domestic disputes. 

The following day,...Webb went to Holloway's home and when she walked in the door, he grabbed her. Webb testified that Holloway was mad at her because he had a black eye and the detective was there the day before. After asking her why she called the police, he ordered her to look at him, and then he slapped her in the face. He then tripped her and she fell to the ground, where he continued to slap her and scratch her face. After five to fifteen minutes, she got up without any restraint, and left his house. According to Webb, she was able to leave freely and at no time did Holloway prevent her from leaving. After leaving Holloway's home, she called the police.

After Webb testified at Holloway's trial for kidnapping, intimidation, and domestic violence,

The trial court, over objection, allowed Webb to read her written statement in open court as part of her direct testimony. Her statement provided that Holloway slapped, punched, and dragged her across the room, where he then sat on her, continued to slap her, and refused to let her up. According to her statement, had Holloway's cousin not intervened, she would not have been able to leave. Further, when she was able to leave, Holloway chased her and tried to drag her down the street.

After Holloway was convicted, he appealed, claiming, inter alia, that the trial court improperly allowed for the admission of Webb's prior written statement. The State countered that it properly impeached Webb with the statement, a prior inconsistent statement, under Ohio Rule of Evidence 607(A). The Court of Appeals of Ohio, Eighth District, disagreed, concluding that 

The statement was not admissible pursuant to Evid.R. 607, because there was no showing of surprise and affirmative damage that Webb's testimony was inconsistent with her written statement. Moreover, even if Webb's testimony were considered inconsistent, the proper foundation was not made prior to her reading her statement.

-CM

http://lawprofessors.typepad.com/evidenceprof/2011/07/607612-state-v-hollowayslip-copy-2011-wl-2899596ohio-app-8-dist2011.html

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