The Turncoat Witness: Analyzing the Differences Between Federal & Ohio Rule of Evidence 607

Federal Rule of Evidence 607 provides that

Any party, including the party that called the witness, may attack the witness’s credibility.

On the other hand, Ohio Rule of Evidence 607 reads as follows:

(A) Who may impeach. 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.

(B) Impeachment: reasonable basis. A questioner must have a reasonable basis for asking any question pertaining to impeachment that implies the existence of an impeaching fact. 

In State v. McKinney, 2014 WL 7226330 (Ohio App. 6th 2014), the Court of Appeals of Ohio noted that "Evid.R. 607(A) clearly allows an attack on a witness' credibility although it restricts such attacks by the party calling the witness." As the language of Rule 607(A) makes clear, however, that's not really the case.

Let's start with Federal Rule of Evidence 607. It replaces the common law "voucher rule," pursuant to which a party calling a witness was said to have vouched for the witness's credibility, meaning that the party could not thereafter attack it. The Advisory Committee's Note to Federal Rule of Evidence 607 states that

The traditional rule against impeaching one's own witness is abandoned as based on false premises. A party does not hold out his witnesses as worthy of belief, since he rarely has a free choice in selecting them. Denial of the right leaves the party at the mercy of the witness and the adversary. If the impeachment is by a prior statement, it is free from hearsay dangers and is excluded from the category of hearsay under Rule 801(d)(1).

In other words, Federal Rule of Evidence 607 was primarily passed to solve the problem of the so-called "turncoat witness," who surprisingly gives testimony that hurts the party who called him. The Rule solves this problem by allowing the party who called the witness to impeach him. What this means is that a party can't call a witness for the sole reason of impeaching him. Assume a witness tells the police that she saw the defendant shoot the victim but then tells the prosecutor that she was mistaken and that she's sure it wasn't the defendant who shot the victim. In this case, the prosecutor could not call the witness and impeach her with her prior statement implicating the defendant. See, e.g., United States v. Ince, 21 F.3d 576 (4th Cir. 1994).

What this means is that Federal Rule of Evidence 607 is a lot less different from Ohio Rule of Evidence 607 than you might think. Ohio Rule of Evidence 607 merely makes explicit what courts have found implicit in Federal Rule of Evidence 607: a party can only impeach a witness it has called if that witness gives testimony that is surprising and damaging to the calling party's case.

That said, there is a key difference. Under Ohio Rule of Evidence 607, if a calling party is allowed to impeach its witness, it can only do so through a prior inconsistent statement. Conversely, under Federal Rule of Evidence 607, if a calling party is allowed to impeach its witness, it can do so through any method, including prior convictions.

-CM