What’s On Their Minds? 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 26 this case was dismissed as improvidently allowed.

On October 4 the Supreme Court of Ohio heard oral argument in State v. Ginley, case # 2010-1925.  This case deals with the troubling issue of victims of domestic violence (the vast majority of whom are women) recanting 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 is asking 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 state made its frustration with the problem of recanting witnesses very clear to the Court, stating that when a recanting witness is the only witness to the crime in a domestic violence case, and there is no other evidence, an acquittal is guaranteed. That is what happened in the Ginley case, and according to the prosecutor, that is what happens over half the time in Cuyahoga County.  The prosecution argues that the touchstone should be whether Evid. R. 614(A) will help the factfinder in deriving the truth.

The defense argues that there are other evidence rules the state can use in this situation, and that Evid. R. 614  must not be allowed to be used to circumvent the fundamental principle that guilt must be proven by sworn testimony at trial, not by prior statements made outside the defendant’s presence.

The parties in this case fundamentally disagree about what the trial court actually held in regard to Evid. R. 614(A).  There’s no disagreement over the fact that trial court denied the state’s motion to call the victim as the court’s witness.  But the state contends that the trial court held that there must be proof of a threat to the victim before the trial court could call the victim as a court’s witness, and that was error.

Defense counsel (Ginley’s lawyer shared her argument time with a lawyer from the Cuyahoga County Public Defender’s office) insist the trial court made no such finding. The trial court did say lack of a threat was one factor in its ultimate decision, but not a prerequisite to invoking the rule.  The trial court did not abuse its discretion in denying the state’s motion under the particular facts and circumstances of this case.

Should Discretion Be Eliminated from Evid. R. 614(A) in Domestic Violence Cases?

Several of the justices expressed their concern over taking away discretion from the trial court in the admission of evidence.

Justice Pfeifer asked if the state was asking the Court to set a standard in which the trial court would have no discretion. Chief Justice O’Connor asked what would happen to judicial discretion under the state’s position—was the state asking the Court to write a rule saying, you must use Evid. R 614 whenever you have a recanting witness? Justice Lanzinger asked whether the state was claiming the trial court abused its discretion in the case in stating that a threat must be shown before the rule could be invoked. Should the evidence rule be rewritten to address problem of recanting witnesses in domestic violence cases? Don’t other evidence rules cover the situation?  Justice O’Donnell wanted to be sure that the only import of using Evid. R. 614(B) was to allow the state to cross examine the witness with an earlier recanted statement, or was there something more?

Aren’t There Other Ways to Win These Cases Without Putting the Victims on the Stand?

Justice O’Donnell asked whether these cases could be won in other ways, such as with the use of police testimony, photographs, and medical records. Chief Justice O’Connor also asked about the use of permissible hearsay exceptions like 911 tapes, statements given to meet an ongoing medical emergency, and excited utterances.  She asked whether the state had considered prosecuting recanting witnesses, to send a message that if you file a formal charge and then recant, you are subject to prosecution yourself.

Hearsay and Confrontation Problems

Justice McGee Brown asked whether under the Crawford line of cases from the U.S.Supreme Court (which hold that when a witness is unavailable at trial, testimonial out-of-court statements by that witness cannot be admitted unless the defendant has had the opportunity to cross examine the declarant) if the state can’t put the victim on the stand, the case is pretty well over regardless of other out-of-court statements she has made?

Procedural Problems

This case has a complex procedural history.  The state first filed an appeal of right in the case, which was denied, and then a discretionary appeal which the court of appeals dismissed as “moot”.  The defense spent the opening part of its brief and the first part of its argument asserting that there was no final appealable order in the case. Essentially the state was trying to appeal from a provisional ruling on an evidence question.  But Justice O’Donnell was the only Justice who appeared concerned with this point.  After a number of questions on this, he appeared convinced that since the state can’t appeal an acquittal, there was a final appealable order in the case because the ruling determined the action.

A visibly agitated Justice Stratton

Justice Stratton seemed especially hostile in her questioning of defense counsel.  She talked about how often she had seen the problem of recanting domestic violence witnesses when she had been a trial judge.  Was it really a good idea to file perjury charge against victims? She pushed defense counsel to concede that in many cases women recant for reasons other than the truth, out of fear of continuing abuse. She expected defense counsel to answer questions most of the other justices had put to the state—what legitimate tools did the prosecution have in dealing with recantation, especially if the only witnesses to the abuse are the victim and the abuser.  She made clear she sees no Crawford issue here—Crawford deals with absent witnesses, while here the state wants the trial court to produce a witness to try and get at the truth.

How it Looks from the Bleachers

Clearly, none of the Justices want to appear unsympathetic to the prosecution’s plight here, but it also looks like most of them don’t want to undermine the discretion of a trial judge, either.  They all may agree that proof of a threat is not required to invoke Evid. R. 614(A), but after that, much depends on what the record shows about whether the trial court did or did not require this.   If the trial court did consider the absence of a threat as only one factor in its decision not to grant the state’s Evid. R. 614(A) motion, there probably will not be a finding of an abuse of discretion. The justices, with the possible exception of Stratton, are unlikely to “rewrite” the rule to require a mandatory application of the rule in cases of recanting witnesses in domestic violence cases.

At times some of the justices seemed confused about the use of recanting statements as impeachment versus substantive evidence.

Finally, as a policy matter, defense counsel responded to Justice Stratton’s questioning by suggesting that one way to deal with the problem of recanting witnesses would be to have a preliminary hearing and call the victim as a witness at that hearing.( In jurisdictions using rapid indictment, preliminary hearings are dispensed with.)  If a victim gives an inconsistent statement not to police, but under oath subject to cross examination, under Evid. R 801(D)(1) that statement would not be hearsay, and the state could use it as substantive evidence.



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