Court's Witness: Court of Appeals of Ohio Finds No Error With Court Calling Witness for Prosecution to Impeach

Ohio Rule of Evidence 607(A) 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.

That said, a party cannot call a witness as mere subterfuge for getting inadmissible evidence before the jury. So, for instance, the prosecution could not call an eyewitness, knowing that the eyewitness would give exculpatory testimony, for the sole purpose of getting the eyewitness's prior inconsistent (incriminatory) statements before the jury.

Meanwhile, Ohio Rule of Evidence 614(A) provides that

The court may, on its own motion or at the suggestion of a party, call witnesses, and all parties are entitled to cross-examine witnesses thus called.

So, could the prosecution in the above example ask the court to call the eyewitness, which would mean that the prosecution could impeach the eyewitness without having to contend with Rule 607(A) limitation? According to the recent opinion of the Court of Appeals of Ohio, Second District, in State v. Slaughter, 2014 WL 895425 (Ohio App. 2 Dist. 2014), the answer is "yes."

In Slaughter, Levi Slaughter was charged with one count of felony murder with the predicate offense of felonious assault, one count of discharging a firearm on or near a prohibited premises, one count of having weapons while under disability, and two firearm specifications. After he was convicted, Slaughter appealed, claiming, inter alia, that the trial court erred by appointing Dominique McCoy as a court witness and allowing the prosecutor to impeach her with prior inconsistent statements.

Specifically, McCoy made statements to detectives that tended to incriminate Slaughter. Then, however, 

Dominique was...interviewed in the prosecutor's office on two occasions prior to trial. During these interviews, she made it evident that she was aligned with Slaughter and that she did not want to testify against him....As a result, the State moved the court to call Dominique as a witness under Evid. R. 614(A). Slaughter objected, but the trial court ultimately allowed the State to cross-examine Dominique as a witness of the court.

In addressing Slaughter's arguments on appeal, the court first dealt with Rule 614(A), noting that

In this case, Dominique is a prime candidate for being called as a witness of the court under Evid. R. 614(A). Her testimony was beneficial to ascertaining the truth in this matter, because she was an eyewitness and she was with Slaughter before, during, and after [the victim's] death. Dominique also made statements to detectives which implicated Slaughter in the crime. Prior to trial, she made it clear to the State that she was aligned with Slaughter and that she did not want to testify against him. Given that her testimony was important to the determination of the case, and that there was an indication that she would align herself with Slaughter and contradict prior statements, it was not an abuse of discretion for the trial court to call her as the court's witness under Evid. R. 614(A).

The court then dealt with Rule 607(A) , finding that

Finally, Evid.R. 614, which allows the court to call a witness as its own, is an exception to the limitation imposed by Evid.R. 607(A), regarding the impeachment of witnesses. Evid.R. 614 is therefore not limited to circumstances where impeachment is allowed under Evid.R. 607(A). A witness often can be convinced to correct his or her trial testimony when confronted with a prior inconsistent statement and to adopt the inconsistent statement as the accurate rendition of facts. The goal of a trial is to seek the truth. We should leave it to the sound discretion of the trial court if, when, and why a witness is called by the court. Moreover, the trial court can, and perhaps should, instruct the jury that a prior inconsistent statement tests the credibility of a witness and, except in limited circumstances, is not substantive evidence.

-CM