On October 16 the Supreme Court of Ohio dismissed State v. Ginley, case # 2010-1925 as improvidently allowed.
Ginley deals with domestic violence victims who recant at trial prior statements to the police which criminally implicate their partners. When the prosecution knows this will happen, it is precluded from introducing the out-of-court statements, since under the rules of evidence, a party cannot impeach its own witness in the absence of surprise. So the prosecution in Ginley asked the Court to approve the use of Evid. R. 614(A) in such circumstances, which would allow the court to call the victim as the court’s witness. Then the state could cross examine the victim with a prior inconsistent statement and in that narrow context, the original statement would be substantive evidence.
The specific issue in Ginley was whether proof of a threat by the defendant was required before the court could grant a motion to call the recanting victim as the court’s own witness. The parties strongly disagreed about whether the trial court had ever made such a finding.
Read the oral argument analysis of the Ginley case here. My call on the Ginley case was that while none of the justices wanted to appear unsympathetic to the prosecution’s plight, they very clearly did not want to undermine the discretion of a trial judge. Questioning on that point was intense. I’d predicted that a majority seemed unlikely to “rewrite” Evid. R. 614(A) in the manner urged by the state.