Proof: Court of Appeals of Ohio Finds Magistrate Erred Under Rule 608(B) by Allowing Documentary Impeachment

Similar to its federal counterpart, Ohio Rule of Evidence 608(B) provides that

Specific instances of the conduct of a witness, for the purpose of attacking or supporting the witness's character for truthfulness, other than conviction of crime as provided in Evid. R. 609, may not be proved by extrinsic evidence. They may, however, in the discretion of the court, if clearly probative of truthfulness or untruthfulness, be inquired into on cross-examination of the witness (1) concerning the witness's character for truthfulness or untruthfulness, or (2) concerning the character for truthfulness or untruthfulness of another witness as to which character the witness being cross-examined has testified.

A good example of the dichotomy found in Ohio Rule of Evidence 608(B) can be found in the recent opinion of the Court of Appeals of Ohio in Ryerson v. White, 2014 WL 3700500 (Ohio App. 8th 2014).

In Ryerson, Helen Ryerson appealed from the judgment of the Cuyahoga County Probate Court overruling her objections to a magistrate's decision. That decision dealt with the validity of Judy Duffy's will after Ryerson had brought a will contest action.

After Ryerson testified, defense counsel impeached her with

several documents detailing previous instances where Ryerson made allegations of misconduct against members of her family, including appellee, their father, and their father's wife.

On appeal, Ryerson claimed that this impeachment was improper under Ohio Rule of Evidence 608(B). The Court of Appeals of Ohio agreed, concluding that "[w]hile the content of these documents are arguably relevant concerning Ryerson's character for truthfulness, this is the exact type of extrinsic evidence that Evid.R. 608(B) seeks to exclude." In other words, even if the prior allegations evinced Ryerson's dishonesty, Ryerson could merely be asked about them on cross-examination; they could not be proven through extrinsic evidence, such as documents.

(The court ultimately, however, found that the magistrate's error was harmless).

-CM