Comments

State v. Ginley Dismissed as Improvidently Allowed. — 2 Comments

  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. 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.