State v. Ginley Dismissed as Improvidently Allowed.

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. 




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2 Responses to State v. Ginley Dismissed as Improvidently Allowed.

  1. The problem a trial lawyer runs into is when the prosecutor convinces the trial court to call the witness for the specific purpose of impeaching him/her. If is to put the person under oath and subject him/her to vigorous cross to see if the recantation can be undermined, I have less a problem with it. If a witness in essence recants the recantation because he or she is now under oath, it might support the “truth seeking” goal of trials. But, generally the prosecutor is simply trying to expose the jury to the earlier statement and cannot do it under any other rule of evidence. Then the prosecutors attempt to argue the “truth” of the earlier statement in support of their case. Under the rules of evidence, this is impermissible. Too many judges miss this nuance or do not take affirmative steps to make ssure the jury only uses the prior inconsistent statement for credibility purposes and not substantive evidence. I am so glad the judges did not take the opportunity to limit a judge’s discretion in this area. But, in the 1st District this was never a problem for prosecutors.

  2. Donald Caster says:

    I was hoping for a ruling from the court. Reviewing a judge’s exercise of his/her discretion is not the same thing as “limiting” that discretion. All evidentiary decisions are reviewed for abuse of discretion (unless SCO says otherwise in the Morris case). But case law exists on most of the rules of evidence, so judges and attorneys know what an abuse of discretion looks like.

    Another example: a post-sentence Crim.R. 32.1 motion to withdraw a guilty plea is reviewed for abuse of discretion. Again, so much case law exists on this that judges know what factors should be considered in exercising their discretion.

    Given the relative dearth of case law on Evid.R. 614(A), it may have been helpful to have a decision on what considerations a judge should take into account in exercising his/her discretion.

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