Oral Argument Preview: May the Trial Court Call a Recanting Domestic Violence Victim as its Own Witness under Evid. R. 614(A)? State v. Ginley.

Update: On October 16 the Supreme Court of Ohio dismissed State v. Ginley, case # 2010-1925 as improvidently allowed. 

 State v. Ginley comes to the Supreme Court after the Eighth District denied the State’s discretionary appeal.  It involves a domestic violence criminal case and the application of Evid. R. 614(A)

A disturbingly common problem in domestic violence cases is a victim’s refusal to appear to testify in court, or to recant his or her (we’ll stick with her) testimony, out of fear of reprisal.   In the past, prosecutors had been able to use some evidence rules to introduce a victim’s out-of-court statements to overcome this hurdle.  But because of a series of U.S. Supreme Court decisions on the confrontation clause, prosecutors have far fewer tools to win convictions in domestic violence cases in which the complaining witness fails to appear or recants her testimony.

 The Cuyahoga County Prosecutor’s office has filed an appeal asking the Court to approve the use of Evid. R. 614(A) to address the problem of a recanting witness.

Evid. R. 614(A) states, “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.”

Use of this rule in domestic violence cases would allow the court to call the victim as its own witness, and would give the prosecutor the right to cross examine and to impeach the victim on prior statements to police about the abuse before she recanted her testimony.

 In this case, Melissa Mathis, Daniel Ginley’s live-in girlfriend, was hospitalized in April 2010 for injuries that she alleged Ginley inflicted on her. She filed a complaint against Ginley with the Westlake Police Department, where she described specific instances of physical abuse, including having her hair pulled out, her eyes gouged and being punched.  She also reported that Ginley would not let her leave their home, and that he took away her cell phone and made false reports to her employer to explain her absences.  At the same time, Mathis also filed a Motion for Criminal Protection against Ginley.

Ginley was indicted in Cuyahoga County on nine criminal counts in April of 2010.  The charges included domestic violence, felonious assault, kidnapping and false imprisonment.

 Once criminal proceedings against Ginley began, Mathis recanted her previous statements.  She retained her own lawyer, who informed the prosecutor that if Mathis were called as a witness she would say she had made up the abuse, that she had lied to the police and that Ginley was innocent of any wrongdoing.

 In response to this development, the State asked the trial court to call Mathis as the court’s witness and compel her to testify to explain the inconsistency between her earlier statements and her recantation. The trial court refused to grant the state’s motion to call Mathis as its witness in the absence of any evidence of a threat to the alleged victim.

 In its brief, the state argues that the trial court misinterpreted Evid R. 614(A) by requiring specific proof of a threat when calling a witness who recants her story of domestic violence. It cites other decisions from the Eighth district to support its proposition that specific proof of a threat is not required to invoke the rule.

  The state argues that if the trial court refuses to allow the state to call Mathis as the court’s witness, it will have no other way to prove its case. Under Evid. R. 607(A), a  party cannot impeach its own witness in the absence of surprise and affirmative damage. Here, the state, knowing of the recantation in advance, could not show surprise.

 The defendant vigorously challenges jurisdiction in the case.  Ginley argues that the appeal was not taken from a final appealable order, but from a pretrial ruling on a motion in limine on an evidentiary question. A ruling on a motion in limine cannot serve as the basis for an appeal. Additionally, Ginley argues that the state was not granted leave to appeal under R.C. 2945.67(A).

As to the merits of the state’s appeal, Ginley argues that there was no abuse of discretion by the trial court in declining to invoke Evid. R. 614(A). The trial court clarified that it was not requiring the state to meet any particular kind of proof before it would call the witness as the court’s witness, carefully considered the facts and circumstances of the case, and made a ruling the state simply does not like.

 Finally, Ginley argues that the state is improperly trying to use prior inconsistent statements by Mathis as substantive evidence of his guilt. This latter point was strongly emphasized in an amicus brief filed by the Cuyahoga County Public Defender, which will share argument time with the defendant.  The amicus argues that the prosecution is clearly trying to get around the prohibitions of Evid. Rule 607 (A). The Public Defender’s Office argues that the use of Rule 614(A) as urged by the state circumvents the guarantee that guilt must be proven by sworn trial testimony, and not by prior statements made outside the defendant’s presence. Such out-of-court statements are particularly damaging because juries tend to consider them as substantive evidence, even with limiting instructions.







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