I previously wrote about the problem of impeaching one’s own witness. Generally, a party is not permitted to call a witness solely to impeach him as a backdoor method of getting otherwise inadmissible evidence into the record. If you recall, Evid. R. 607 requires a party to demonstrate (1) surprise and (2) affirmative damage to their case in order to impeach their own witness with prior inconsistent statements. But, there is the potential for an end-around this restriction. Evid. R. 614 allows the court to call someone as the court’s witness. When this happens, neither the prosecutor nor the defendant are calling the witness and each will be allowed to examine the witness under cross examination, as opposed to direct examination.
This means both parties can lead the witness and, importantly, impeach the witness. Because the recalcitrant witness is not technically being called by the state, the proscriptions in Evid. R. 607 do not apply. I worked on a case maybe a year or so ago where the state utilized this very method in order to get an uncooperative witness to testify. This tactic was recently employed by Montgomery County prosecutors again in State v. Christan, 2014-Ohio-2672.
Christan was a Dayton-area restauranteur indicted for several crimes, including making false alarms, insurance fraud and a violation of Ohio’s RICO statute. The Second District’s decision is lengthy as it resolved a total of eleven assignments of error. While there are several interesting legal issues involved, I want to focus on one in particular: the extent to which the decision on Evid. R. 614 might give the state the ability to skirt the old “voucher rule.”
In Christian, the court called the defendant’s co-conspirator (Mr. Adams) as its own witness at the request of the prosecution. Mr. Adams had been hired by the defendant to, among other acts, stage a burglary of defendant’s home, stage an arson at one of her restaurants, and fire shots at the defendant’s home to make it look like an enemy was out to get her. The reason proffered by the state as to why the court should call him as a court’s witness was that Adams had an ongoing relationship with the defendant and would ‘likely be guarded in is testimony, due to his loyalties to the defendant, and the implications his testimony has on his involvement in the defendant’s crime spree.”
So the State wanted to call him, but feared that he may not be all that helpful and sought the ability to elicit testimony as upon cross-examination. That does, in itself, seem appropriate. I don’t really have any problems with that portion of the decision as a matter of law. If someone is reluctant to help the state, maybe the court should be able to call that witness so that the state is not limited in what it can elicit by the rules governing direct examination. I don’t think that’s particularly fair, but under established law, it is right.
What is most important about the decision is how this procedure might be a method to emasculate Evid. R. 607(A). While the Christian decision does not explicitly mention that the State wanted to cross Adams in order to impeach him with prior inconsistent statements, the opinion does note that “[t]he State also stated that Adams had become less cooperative with the State when he was told ‘he would not receive any consideration with respect to his own pending criminal charges in another county’.” So, it is fair to assume that Adams had at one point cooperated by providing statements adverse to the defendant, and the State was now worried he would testify differently at trial. Nonetheless, even if this was not the case in Christian, the opinion implies this method of introducing otherwise inadmissble evidence is proper.
In overruling this assignment of error, the Second District cites one of its previous decisions, State v. Hazel, 2012-Ohio-835, in which is stated:
[i]ndeed, a request for designation of a court’s witness often arises precisely because the State has anticipated an unfavorable change in the witness’s account of previous events.”
This language seems to say that it is appropriate for the Court to help the state out by calling a witness precisely to allow the state to then elicit the prior inconsistent statements. There is a major problem with this view: prior inconsistent statements are inadmissible hearsay. While a party is always permitted to impeach a witnesses’ credibility with prior inconsistent statements, the prior statements are not to be considered substantive evidence toward any element of the offenses. In other words, you can use prior inconsistent statements to show the jury this guy is a liar and should not be believed, but the earlier, conflicting statements are not ordinarily to be considered as affirmative evidence of the crime at issue. Why did I use the term ordinarily? Well, because like most legal rules, there are exceptions.
Evid. R. 801 defines what is and what is not hearsay. Subsection (D)(1) states that prior inconsistent statements are not hearsay when:
The declarant testifies at trial or hearing and is subject to cross-examination concerning the statement, and the statement is (a) inconsistent with declarant’s testimony, and was given under oath subject to cross-examination by the party against whom the statement is offered and subject to the penalty of perjury at a trial, hearing, or other proceeding, or in a deposition, or (b) consistent with declarant’s testimony and is offered to rebut an express or implied charge against declarant of recent fabrication or improper influence or motive, or (c) one of identification of a person soon after perceiving the person, if the circumstances demonstrate the reliability of the prior identification.
So, does this make the prior inconsistent statements admissible as substantive evidence? Not in most instances. As the rule clearly states, the prior inconsistent statement has to be made under oath, subject to cross-examination, and subject to the penalty of perjury to be considered non-hearsay. This is hardly ever going to be met in a criminal case. Statements to detectives are not made under oath or subject to cross examination, period. What about grand jury testimony, you ask? Well, yes it is made under oath and subject to the penalty of perjury, but there is almost never any cross examination. Rarely are defendants present at grand jury proceedings. Most often, the defendant is not even aware of when the grand jury is going to hear the case.
Unless the court believed that Adams’ prior statements met this standard, the statements are hearsay, and not relevant to prove any fact of consequence. Sure, the state could show his testimony at trial is not credible due to his prior statements, but that does nothing to prove the defendant is more likely to have committed the offenses at issue. It proves only that this man is a liar.
If a witness is impeached for the prior inconsistent statements, it would be proper for the judge to provide a “limiting instruction” to the jury. Basically, the court should tell the jury that it may consider those prior statements in assessing this man’s truthfulness as a witness, but it may not take those statements into account when evaluating the evidence of the defendant’s guilt. Do these work? Not really. Jurors are people and it’s hard to “un-hear” what you heard.
So if the defendant requests and receives a limiting instruction, the damage has been done anyway. This is precisely why the state likes to get the statements before the jury. In a purely legal sense, it does nothing for their case. It’s the practical affect of the statements that provides the benefit. This is why courts should be reluctant to call a witness when the sole reason to put him on the stand is to elicit the prior inconsistent statements. The procedure should be utilized only when a witness simply doesn’t want to say much and cross-examination will ease in the elicitation of evidence relevant to guilt or innocence.