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Franklin County Criminal Law Casebook
Reproduced with permission from
Allen V. Adair and the Franklin County Public Defender Office

IMPEACHMENT (085)

Also see Cross-Examination; Character Evidence; Rebuttal; Confrontation; Consciousness of Guilt; Hearsay; Similar Acts Evidence.

 

In general

Postarrest silence

Collateral matters; Evid. R. 608(B)

Prior statements

Hostile witnesses

Prior convictions in general

Impeachment by prior misdemeanor convictions

Benefit of plea bargain

 

Evidence Rule 607 -- Who May Impeach.

Evidence Rule 608 -- Evidence of Character and Conduct of Witness.

Evidence Rule 609 -- Impeachment by Evidence of Conviction of Crime.

Evidence Rule 610 -- Religious Beliefs or Opinions.

Evidence Rule 614 -- Calling and Interrogation of Witness by Court.

Evidence Rule 616 -- Bias of Witness.

In general

Columbus v. Obasohan, 175 Ohio App. 3d 391, 2008-Ohio-797 -- Arresting officer in a resisting arrest prosecution denied making anti-Somali remarks. Hearsay objections kept out testimony by two defense witnesses that he in fact had made such remarks, demonstrating bias. Prosecutor conceded error but maintained it was harmless. Reversed. At ¶23: Exclusion of evidence in a criminal trial must be considered prejudicial unless the court can declare, beyond a reasonable doubt, that the error was harmless, and unless there is no reasonable possibility that the evidence, or the exclusion of evidence, may have contributed to the accused‘s conviction." Citing State v. Bayless (1976), 48 Ohio St.2d 73, 106, vacated in part on other grounds (1978), 438 U.S. 911. Because there was conflicting testimony concerning the arrest, exclusion can not be declared harmless beyond a reasonable doubt.

State v. Bowman (2001), 144 Ohio App. 3d 179, 186-190 -- State was properly allowed to call emergency medical technician in rebuttal in response to defendant's claim she was struck in the face by a deputy. Responding technician testified this was not reported to her. Failure to report is deemed prior inconsistent conduct. Foundation was laid by giving the defendant a chance to explain or deny. Extrinsic evidence was admissible as the court finds it to be otherwise relevant under the rules of evidence, and not offered merely to impeach credibility.

State v. Zamorski (2000), 141 Ohio App. 3d 521 -- The visual display from an invalid breath test is irrelevant and inadmissible, even in rebuttal. Court allowed testimony concerning display to rebut defendant's claim she had not been drinking. Reversed.

State v. Halley (1994), 93 Ohio App. 3d 71 -- "Ordinarily, accusations or reminders of perjury by a prosecutor are improper. Such statements function as backhanded impeachment as well as attempted witness intimidation and express the prosecutor's personal belief or opinion as to the credibility of the witness, which is improper."

Redman v. Watchtower (1994), 69 Ohio St. 3d 98, 99 -- "The use of one's congregational affiliation to show bias is acceptable under Evid. R. 610. The use of one's religious beliefs or affiliation to attack credibility is not."

United States v. Abel (1984), 469 U.S. 45 -- Defendant and defense witness' membership in the Aryan Brotherhood, which required members to lie, cheat, steal and kill to protect one another, could be used to impeach credibility of witness by suggesting bias in favor of the defendant.

State v. Williams (1986), 21 Ohio St. 3d 33 -- In a rape prosecution where the alleged victim on direct denied previously having had sex with the defendant and said that she did not have sex with men because she was gay, the defense was entitled to introduce testimony contradicting these assertions, notwithstanding the rape shield law and Evid. R. 608(B). Also see Olden v. Kentucky (1988), 488 U.S. 227. Compare State v. Tomlinson (1986), 33 Ohio App. 3d 278, 280; State v. Leslie (1984), 14 Ohio App. 3d 343.

State v. Boggs (1992), 63 Ohio St. 3d 418 -- Syllabus: "(1) Evid. R. 608(B) allows, in the trial court's discretion, cross-examination on specific instances of conduct 'if clearly probative of truthfulness or untruthfulness.' In certain instances it is within the discretion of the trial court to permit cross-examination of a rape victim as to prior accusations of rape. (2) ...(T)he trial judge shall conduct an in camera hearing to ascertain whether sexual activity was involved and, as a result, cross-examination on the accusation would be prohibited by 2907.02(D), or whether the accusation was totally unfounded and therefore could be inquired into pursuant to Evid. R. 608(B)."

State v. Daniels (1982), 1 Ohio St. 3d 69, 77 -- See Krupansky dissent for language that sexual preference of a witness is generally irrelevant.

State v. Nolan (1992), 78 Ohio App. 3d 564 -- Plain error reversal where improper impeachment included inquiry regarding recent arrest for unrelated assault, drinking problems and epilepsy. Compare State v. Collins (1994), 97 Ohio App. 3d 438, 447-450 where question relating to arrest arose from character witness's assertion "He don't bother nobody."

State v. Denis (1997), 117 Ohio App. 3d 442 -- Domestic violence defendant wished to introduce court records pertaining to complaints filed against him by ex-wife and her current husband. Court quashed subpoenas. Held to violate defendant's right to compulsory process. Records were relevant to establish bias, and also bore on the credibility of the alleged victim's testimony.

United States v. Havens (1980), 446 U.S. 620 -- Illegally seized evidence, suppressed on motion prior to trial, may be used for purposes of impeachment in cross-examination of the defendant.

State v. Walker (1978), 55 Ohio St. 2d 208 -- State permitted to attempt to impeach jail records introduced to establish alibi.

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Postarrest silence

Doyle v. Ohio (1976), 426 U.S. 610 -- Use of post arrest silence for impeachment purposes violates the Due Process Clause of the Fourteenth Amendment. (For further cases see Admissions and Confessions.)

State v. Howard (1978), 56 Ohio St. 2d 328 -- Syllabus: "It is not a denial of a defendant's constitutional rights for the prosecution to cross-examine a defense witness, for impeachment purposes, concerning her silence at a pre-trial proceeding when the witness was not a compelled witness at the earlier proceeding and was not entitled therein to invoke the Fifth Amendment, and where her trial testimony is inconsistent with her previous silence."

Harris v. New York (1970), 401 U.S. 222 -- On cross-examination, the defendant may be impeached using his own statement which was otherwise inadmissible because of Miranda defects, provided the statement is otherwise trustworthy (i.e. not coerced). See Admissions and Confessions; Oregon v. Haas (1975), 420 U.S. 714; State v. Butler (1969), 19 Ohio St. 2d 55, paragraph two of the syllabus.

State v. Saunders (1994), 98 Ohio App. 3d 355, 359-360 -- "When a defendant's postarrest silence is raised for the first time in the prosecutor's closing argument, it is not being raised for impeachment purposes and the defendant is further prejudiced in that he or she is afforded no opportunity to call rebuttal witnesses."

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Collateral matters; Evid. R. 608(B)

State v. Price, Cuyahoga App. No. 81604, 2003-Ohio-1840, ¶ 26-33 -- Trial court properly denied use of affidavit, search warrant and property inventory in cross-examination of robbery victim, but erroneously barred asking whether a search warrant had been executed and specified items seized without direct reference to supporting documents.

State v. Husseln, 152 Ohio App. 3d 67, 2003-Ohio-1369 -- Trial court erroneously barred questioning concerning prior false domestic violence charges. Under Evid. R. 608(B) a defendant is permitted, in the court's discretion, to cross-examine a victim about false prior accusations if they are clearly probative of truthfulness or untruthfulness. Also see State v. Fredrick, 2d Dist. App. No. 18996, 2002-Ohio-1195.

State v. Kamel (1984), 12 Ohio St. 3d 306, 310-311 -- In a child endangering and manslaughter prosecution the defendant denied other instances of abusive punishment of his children. In rebuttal, the state called a witness to contradict this assertion. Second paragraph of the syllabus holds: "Other than the Evid. R. 609 exception for certain criminal convictions, a witness' credibility may not be impeached by extrinsic proof of specific instances of his conduct. Such conduct may be inquired into only by the intrinsic means of cross-examination within the guidelines set forth in Evid. R. 608(B)." Also see State v. Leuin (1984), 11 Ohio St. 3d 172; State v. Jurek (1989), 55 Ohio App. 3d 70, 73-74; State v. Workman (1984), 14 Ohio App. 3d 385, 391; State v. Strobel (1988), 51 Ohio App. 3d 31; State v. Lundy (1987), 41 Ohio App. 3d 163.

State v. Banks (1991), 71 Ohio App. 3d 214 -- Defendant's assertion that he had ever had sex with any child opened the door to evidence to the contrary. Compare State v. Hamilton (1991), 77 Ohio App. 3d 293 where in similar circumstances the appellate court found Evid. R. 608(B) barred admission of extrinsic evidence of incident defendant had denied.

State v. Lukens (1990), 66 Ohio App. 3d 794 -- Whether or not a child was already unruly is not an issue. Defendant not prejudiced by court's refusal to admit juvenile records to this end. At p. 800: "In a similar vein, a party charged with polluting a river may argue many others have previously dumped garbage into the stream..."

State v. Williams (1997), 79 Ohio St. 3d 1, 14-15 -- Court finds no error in refusing to allow cross of accomplice using vaguely phrased motion to suppress filed in his case.

In re Michael (1997), 119 Ohio App. 3d 112, 125-127 -- Witness denied threatening caseworker. Court properly excluded contradictory testimony by caseworker. Nor would it have been admissible as similar acts testimony under Evid. R. 404(B).

State v. Soke (1995), 105 Ohio App. 3d 226, 243 -- No abuse of discretion in refusing to allow a witness to be recalled for questioning on a collateral matter which might have impeached his credibility: "'A witness may not be impeached by evidence that merely contradicts his testimony on a matter that is collateral and not material to any issue in the trial.' Byomin v. Alvis (1959), 169 Ohio St. 395, 398... 'Evid. R. 608(B) provides a well-established rule of law that protects a legitimate state interest in preventing criminal trials from bogging down in matters collateral to the crime for which defendant was charged.' State v. Boggs (1992), 63 Ohio St. 3d 418, 422-423..."

State v. Boggs (1993), 89 Ohio App. 3d 206 -- Implementing the decision in State v. Boggs (1992), 63 Ohio St. 3d 418, courts are to follow a two stage procedure. Defense counsel may ask the witness if she has made any false prior rape accusations. If the answer is no, the court would have the discretion to determine whether, and to what extent, counsel may proceed with cross. If the answer is no, the court is to conduct an in camera hearing. If it is ascertained that the false accusations involved sexual activity, further inquiry may be barred by the rape shield law. If sexual activity was not involved, then further cross may be allowed, but Evid. R. 608(B) would bar the introduction of extrinsic evidence. However, extrinsic evidence may be heard at the in camera hearing.

State v. Covrett (1993), 87 Ohio App. 3d 534 -- In opening statement defense counsel asserted client would not consent to sex with another male, leading the prosecutor to call as his first witness a bystander in the courtroom who indicated that the defendant was bisexual. Reversed. While the statement of counsel may have placed the defendant's sexual preference in issue, it was error to permit the witness to testify without first giving defense counsel an opportunity to explain or qualify the statements made during opening argument with reference to the evidence he intended to introduce. Also see State v. Eben (1992), 81 Ohio App. 3d 341.

State v. Nolan (1992), 78 Ohio App. 3d 564 -- Plain error reversal where improper impeachment included inquiry regarding recent arrest for unrelated assault, drinking problems and epilepsy. Compare State v. Collins (1994), 97 Ohio App. 3d 438, 447-450 where question relating to arrest arose from character witness's assertion "He don't bother nobody."

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Prior statements

State v. Hancock, Hamilton App. No. C-030459, 2004-Ohio-1492 -- After the prosecuting witness testified that she was struck accidentally, the prosecutor properly impeached using prior inconsistent statements. Since those statements did not meet any exception to the hearsay rule, they could not be received as substantive evidence of guilt. Regardless of which version of the facts was more believable, the conviction was not supported by the evidence. Defendant discharged. Trial judge also criticized for intimidation of the prosecuting witness. Also see State v. Parsons, Wood App. No. WD-03-051, 2004-Ohio-2216.

State v. Hubbard, 150 Ohio App. 3d. 3D 623, 2002-Ohio-6904, ¶7-16 -- Questions directed to a witness who claimed inability to recall found to relate to establishing a foundation for the state's claim of affirmative damage rather that circumvention of the hearsay rule. State abandoned effort to have prior statement to police admitted. No plain error found in admission of transcript of testimony from the first trial.

State v. Kelly, Hamilton App. No. C-10639, 2002-Ohio-6246, ¶25-28 -- A notice of alibi may be an admission, by the attorney as agent, within the meaning of Evid. R. 801(D)(2), but may not be used to impeach an alibi witness with no knowledge of the alibi notice.

State v. Baker (2000), 137 Ohio App. 3d 628, 650-652 -- After defendant denied ever being drug-dependent, he was properly impeached using an application for treatment in lieu of conviction submitted in another case by former counsel.

State v. Riggins (1986), 35 Ohio App. 3d 1 -- (1) Prior inconsistent statement made under oath is admissible for the truth of the matter asserted. (2) As foundation for admission, witness must be given an opportunity to explain or deny prior inconsistent statement.

State v. Kline (1983), 11 Ohio App. 3d 208 -- (1) At 211: "Extrajudicial statements offered for impeachment purposes are not hearsay since they are not offered for the truth of what they state." (2) Hearsay declarant may be impeached by his other hearsay statements.

State v. Minor (1988), 47 Ohio App. 3d 22, 27-28 -- There is no requirement that the cross-examiner introduce extrinsic evidence of a prior inconsistent statement if the witness denies that the statement was made. However, without introduction of extrinsic evidence of the statement there is no evidence before the jury and consequently the witness has not been impeached. "Accordingly, the appropriate remedy is a cautionary instruction to the jury that the statements by counsel which are unsupported by the evidence are not to be considered."

State v. Johnson (1983), 10 Ohio App. 3d 14, 17 -- If the witness acknowledges making the prior inconsistent statement, it is not an abuse of discretion for the court to refuse to admit extrinsic evidence of the inconsistent statement. (It is the admission that accomplishes impeachment.) Also see Blackford v. Kaplan (1939), 135 Ohio St. 268; Burt v. State (1872), 23 Ohio St. 268; Babbitt v. Say (1929), 120 Ohio St. 177.

State v. Talbert (1986), 33 Ohio App. 3d 282 -- Defense was entitled to play recording of witness' prior inconsistent statement for the jury. Applying Evid. R. 613, the statement need not first be shown to or played for the witness before questioning, though on request it must be disclosed to opposing counsel. Since the tape itself is extrinsic evidence, before it may be played, the witness must be afforded the opportunity to explain or deny the statement. Also see State v. Theuring (1988), 46 Ohio App. 3d 152.

State v. Hannah (1978), 54 Ohio St. 2d 84 -- Cross-examiner may use inconsistent statements by witness during previous telephone interview to impeach.

State v. Litz (1982), 8 Ohio App. 3d 321 -- Error for court to allow prosecutor during cross-examination to use police report from previous incident involving homicide victim and defendant to attack claim of self-defense. Report was hearsay and neither it nor the reporting officer's testimony would have been admissible under any of the exceptions to the hearsay rule.

State v. McMillan (1990), 69 Ohio App. 3d 36, 43-46 -- Threshold requirement of actual inconsistency was not met where defendant's denial he had ever raped or molested anyone was used as basis for introducing his admission he had intercourse with his sister twenty-five years ago.

State v. Keith (1997), 79 Ohio St. 3d 514, 525 -- Foundation was properly laid for alibi witness to be impeached by a videotaped TV interview.

State v. Jacobs (1995), 108 Ohio App. 3d 328, 331-333 -- While Evid. R. 613(A) does not require that a witness be shown contents of a prior inconsistent statement before being asked about it, upon request the statement must be shown to opposing counsel, who may show it to the witness out of the presence of the jury before further questioning.

State v. Williams (1996), 115 Ohio App. 3d 24, 40-42 -- Applying Evid. R. 106, court finds defense was improperly kept from questioning officer concerning additional portions of a statement used to impeach a defense witness. Inquiry would have suggested portion relied upon by the state was result of confused response to officer's question.

State v. Soke (1995), 105 Ohio App. 3d 226 -- Unsuccessful attempt by defense to play several hours of taped jailhouse telephone conversations faulted for failure to edit out extraneous or collateral matter, failure to have transcripts of recordings approved for accuracy in advance, and because of credibility problems.

Dayton v. Combs (1993), 94 Ohio App. 3d 291 -- Statements of witnesses who claimed inability to recall subject matter were read to the jury: (1) For purposes of refreshing recollection, the statement should not have been read aloud. (2) Inability to remember did not establish foundation requirement of "affirmative damage" which would have permitted prosecutor to impeach his own witness. (3) Statements would only be admissible for the truth of the matter asserted is they met one of the exceptions to the hearsay rule. Court concluded they were statements against penal interest.

Cincinnati Traction Co. v. Stephens (1906), 75 Ohio St. 171 -- When a witness has been impeached through use of prior inconsistent statements, it is error to permit an attempt to rehabilitate him through use of prior consistent statements. Also see State v. Hines (December 11, 1980), Franklin Co. App. No. 80AP-338, unreported (1980 Opinions 3728, 3370-3371).

State v. Nichols (1992), 85 Ohio App. 3d 65, 70-71 -- Where a witness has been impeached using prior inconsistent statements, rehabilitation is limited to prior consistent statements made before the inconsistent statement, or before the existence of any motive to testify falsely.

State v. Holmes (1987), 30 Ohio St. 3d 20 -- Without a prior inconsistent statement having been placed in evidence, it is error to allow a party to impeach its own witness by implying future witnesses would be called to provide contradictory testimony.

State v. Houston (1985), 26 Ohio App. 3d 26 -- State's witness balked at testifying, then claimed to have no recollection of the robbery. State was erroneously allowed to introduce witness' statement to a police officer. While the witness was "unavailable" the specific exceptions set forth in Evid. R. 804 did not apply.

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Hostile witnesses

State v. Clay, 181 Ohio App. 3d 563, 2009-Ohio-1235 – Domestic violence victim backpedaled on her account, so prosecutor used her prior statement as substantive proof. This was erroneous, as he was aware of what she was likely to say before trial and could not claim surprise. Harmless since content was cumulative to her excited utterances.

State v. Smith, 176 Ohio App. 3d 119, 2008-Ohio-1682 – Defendant convicted of CCW was one of four passengers in a car where a gun was found under the driver‘s seat. All officer saw was slight movement by the two rear seat passengers, one of whom was the defendant. State‘s case rested on the testimony of a front seat passenger, which was exculpatory, though he was impeached using his prior statement to the police. Since this could not be received as substantive proof of guilt, the trial court erroneously overruled the defendant‘s Rule 29 motion.

State v. Dearmond, 179 Ohio App. 3d 63, 2008-Ohio-5519 – Prosecutor was properly allowed to impeach his own witness who was expected to implicate the defendant but instead admitted his own guilt and denied the defendant‘s. Proper limiting instruction was given.

State v. Thomas, Montgomery App. No. 19435, 2003-Ohio-5746 -- Court approves the state calling an expert concerning the behavioral characteristics of victims of domestic violence to explain why they sometimes recant prior accusations. But the use of statistical evidence in this regard is irrelevant to the guilt or innocence of the accused. Such evidence is permissible to impeach the testimony of the witness, permissible here as the alleged victim was called as a court's witness.

State v. Liberatore (1982), 69 Ohio St. 2d 583 -- Paragraph one of the syllabus: "While the initial calling of an uncooperative witness to the stand may be proper, the prosecution is not permitted to put before the jury, under the guise of impeachment, an out of court statement of that witness, by reciting extended unsworn and unrecorded remarks which inculpate the defendant, when there is good reason to believe the witness will decline to testify as desired." Also see State v. Dinsio (1964), 176 Ohio St. 460 (similar exploitation of exercise of Fifth Amendment privilege.)

State v. Stearns (1982), 7 Ohio App. 3d 11 -- Headnote 2: "Prior statements can be used to impeach a party's own witness only upon a showing of 'surprise and affirmative damage.' Where a witness' written statement strongly implied direct knowledge of the defendant's participation and the trial testimony denies such knowledge, 'surprise' may be established. To establish 'affirmative damage,' the party's own witness must testify to facts which contradict, deny, or harm that party's trial position. 'Affirmative damage' is not shown when the witness merely fails to support that party's trial position in a manner that may have been expected." Also see Ferguson Realtors v. Butts (1987), 37 Ohio App. 3d 30; State v. Reed (1981), 65 Ohio St. 2d 117, 124-125.

State v. Blair (1986), 34 Ohio App. 3d 6 -- No surprise or affirmative damage when prosecutor acknowledged she knew witness would deny having seen anything.

State v. Cantleberry (1990), 69 Ohio App. 3d 216, 222-223 -- No surprise where had been made known to many people involved in the investigation that state's witness had changed story and prosecutor had either ignored information that this was the case or neglected to interview witness beforehand. Also see State v. Koelling (May 4, 1993), Franklin Co. App. No. 92AP-1519, unreported (1993 Opinions 1629).

State v. McCornell (1993), 91 Ohio App. 3d 141 -- Wife initially reported that her husband shot her on purpose, after she had suggested he look for a job. At trial she claimed the shooting was accidental. Held that evidence to the effect she had been stabbed by her husband seven months earlier, and that at that time she recanted an initial claim it was done on purpose, was properly admitted, supposedly to impeach her testimony that the shooting was accidental.

State v. Moore (1991), 74 Ohio App. 3d 334 -- Surprise and affirmative damage established where record shows difference between testimony and version given in interview the previous day.

State v. Dacons (1982), 5 Ohio App. 3d 112 -- Pursuant to Evid. R. 614, at the request of a party the court may call a witness as its own and permit both sides to cross-examine, relieving party which wished to call witness of obligation to demonstrate surprise.

State v. Diehl (1981), 67 Ohio St. 2d 389, 393 -- Error to allow prosecutor to call court reporter to read the portion of a witness' grand jury testimony he has already been proffered to refresh his recollection.

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Prior convictions in general

State v. Dickess, 174 Ohio App. 3d 658, 2008-Ohio-39, ¶29-42 – Tape of defendant‘s statement to the police was introduced. Without objection the jury was instructed that it could consider his prior record in relation to that statement. Court finds this was permitted under Evid. R. 806. Dubious holding with regard to defendants, but the tactic might legitimately used to attack the credibility of other hearsay when the declarant has a record.

State v. Franklin, 178 Ohio App. 3d 460, 2008-Ohio-4811 – Prosecutor properly adduced for impeachment purposes that the defendant had prior murder and robbery convictions, but crossed the line by further asking whether he was a murderer and a robber. That went beyond credibility, and was an improper attempt to establish bad character. Noting the use of a limiting instruction and "immense" proof of guilt, the court finds the error harmless.

Ohler v. United States (2000), 529 U.S. 753, 120 S.Ct. 1851 -- In a federal prosecution the government prevailed in a motion in limine seeking right to impeach the defendant using her prior conviction. Preemptively admitting conviction during direct examination waived issue on appeal.

State v. Burrows, Trumbull App. No. 2000-T-0089, 2002-Ohio-1961, at ¶151-157 -- Defense properly forbidden to introduce exhibits showing a witness had been charged with other offenses. Exhibits reflected charges but not conviction. Also the proffer was untimely since the time for impeachment by prior conviction is during cross-examination.

State v. Durant, 159 Ohio App. 3d 208, 2004-Ohio-6224 -- While impeachment is usually limited to prior convictions, it was error to not allow questioning a witness who made a controlled buy whether he had charges pending, as that fact might tend to show bias or self-interest on his part in giving testimony favorable to the state, regardless of whether the state had made a specific deal in exchange for the testimony.

State v. Rodriquez (1986), 31 Ohio App. 3d 174 -- Headnotes: "(2) Although credibility may be attacked by evidence that a witness has been convicted of a crime, criminal behavior that has not resulted in conviction cannot form the basis for an attack upon credibility. [Also see State v. Kirkland (1984), 18 Ohio App. 3d 1.] (2) Where a witness denies on cross-examination that he has received consideration for his testimony, the witness may not be impeached by extrinsic evidence that charges against the witness might be dropped in exchange for his testimony."

State v. Hector (1969), 19 Ohio St. 2d 167 -- Paragraph five of the syllabus: "While ordinarily the credibility of a witness may be attacked by proof of conviction of crime but not by proof of indictment, this rule is subject to the exception that a witness in a criminal case may be asked if he is under indictment for a crime if such fact would reasonably tend to show that his testimony might be influenced by interest, bias, or motive to testify falsely." Also see Keveney v. State (1923), 109 Ohio St. 64.

State v. Wright (1990), 48 Ohio St. 3d 5 -- Syllabus: "Evid. R. 609 must be considered in conjunction with Evid. R. 403. The trial judge therefore has broad discretion in determining the extent to which testimony will be allowed under Evid. R. 609. When exercising this discretion, all relevant factors must be weighed." (References to Evid. R. 403 are now incorporated in Evid. R. 609.)

State v. Amburgey (1987), 33 Ohio St. 3d 115 -- Syllabus: "Under Evid. R. 609, a trial court has broad discretion to limit any questioning of a witness on cross-examination which asks more than the name of the crime, the time and place of conviction and the punishment imposed, when the conviction is admissible solely to impeach general credibility."

State v. Shields (1984), 15 Ohio App. 3d 112 -- Once prior conviction has been acknowledged, Evid. R. 403 permits limitation of inquiry as to specifics of the offense, if of marginal probative value. Also see State v. Covrett (May 4, 1993), Franklin Co. App. No. 92AP-1195, unreported (1993 Opinions 1615).

State v. Hines (December 11, 1980), Franklin Co. App. No. 80AP-338, unreported (1980 Opinions 3728) -- Reversible error for prosecutor, after adducing fact of prior conviction and resulting incarceration, to ask defendant whether he would lie to avoid going back to the penitentiary.

State v. Chambers (1984), 21 Ohio App. 3d 99 -- Defendant may be impeached using a conviction dated after the date of the offense being tried.

State v. Cash (1988), 40 Ohio St. 3d 116 -- Syllabus: "A prior conviction in which pronouncement of sentence is still pending may be used for impeachment purposes pursuant to Evid. R. 609(A)."

Luce v. United States (1984), 469 U.S. 443 -- In federal courts, to preserve a court's ruling on a motion in limine pursuant to Evidence Rule 609(a), the defendant must actually testify and be impeached using the prior convictions in question.

State v. White (1982), 6 Ohio App. 3d 1 -- A juvenile court delinquency finding generally may not be used to impeach the credibility of a witness pursuant to Evid. R. 609, though it may be used if it bears on the bias of the witness. See Evid. R. 609(D); State v. Williams (1984), 16 Ohio App. 3d 484; Davis v. Alaska (1974), 415 U.S. 308; State v. Cox (1975), 42 Ohio St. 2d 200, 204; State v. Willman (1991), 77 Ohio App. 3d 323.

State v. Robinson (1994), 98 Ohio App. 3d 560, 566-570 -- Gang member's juvenile record was brought out during cross-examination after he asserted he was among three of thirty members without a record. While a juvenile record may not be used to impeach credibility by itself, it may be used otherwise, such as here to impeach claims relating to the defendant's character.

State v. Goney (1993), 87 Ohio App. 3d 497 -- (1) In determining whether or not to exclude prior convictions, greater latitude should be allowed where dishonesty is involved, and less where crimes of violence, or similar to the offense charged are involved. See extensive quotation from Gordon v. United States (C.A.D.C. 1967), 383 F. 2d 936. (2) Advance notice not required where conviction was more than ten years in the past, but release from parole fell within ten years.

State v. Fluellen (1993), 88 Ohio App. 3d 18 -- Impeachment by means of a conviction more than ten years in the past is warranted only when particular facts and circumstances are adduced leading to the conclusion that probative value substantially outweighs prejudicial effect. This was not established where an old manslaughter conviction was used against a defendant charged with aggravated robbery.

State v. Hewitt (1985), 26 Ohio App. 3d 72 -- No error found where court permitted introduction of documentary evidence during rebuttal as to prior convictions defendant had denied during cross, though Evid. R. 609 appears to direct the introduction of records during cross. On timeliness issue, compare State v. Riggins (1986), 35 Ohio App. 3d 1, 3-4 (untimely for defense counsel to seek to introduce prior inconsistent testimony after cross had concluded).

State v. Hatcher (1996), 108 Ohio App. 3d 629 -- Issue is whether credibility of an unavailable witness whose testimony is read to the jury may presently be impeached by record of prior felony conviction. One judge concludes it may, without it having been previously shown to the witness as required by Evid. R. 609(F). Dissenting judge disagrees. Concurring judge finds fact convictions were more than ten years in the past and time of parole release not a matter of record of primary significance.

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Impeachment by prior misdemeanor convictions

State v. Taliaferro (1981), 2 Ohio App. 3d 405, 406-407 -- "We hold that the offenses of attempted forgery, petty theft and attempted receiving stolen property are offenses involving dishonesty and that the trial court did not err in permitting the introduction into evidence of defendant's prior convictions for those offenses for the purpose of impeaching his credibility." Also see State v. Johnson (1983), 10 Ohio App. 3d 14; State v. Tolliver (1986), 33 Ohio App. 3d 110; Middleburg Heights v. Theiss (1985), 28 Ohio App. 3d 1.

State v. Brown (1989), 65 Ohio App. 3d 322 -- Evid. R. 609 does not permit impeachment by prior convictions for OMVI, assault, or sexual imposition. It does allow impeachment by a receiving stolen property conviction.

State v. Lumpkin (February 25, 1992), Franklin Co. App. No. 91AP-567, unreported (1992 Opinions 636, 645-646) -- Evid. R. 609 permits impeachment only by misdemeanor drug charges involving dishonesty or deception as an element.

State v. Ellis (1982), 8 Ohio App. 3d 27 -- (1) A misdemeanor assault conviction may not be used for impeachment purposes. (2) Felony conviction more than ten years old may not be used for purposes of impeachment absent notice by prosecutor of intent to use and a showing probative value outweighs prejudicial effect.

State v. Wright (June 7, 1994), Franklin Co. App. No. 93AP-1042, unreported (1994 Opinions 2503) -- (1) It was erroneous to impeach through reference to an indictment as opposed to a conviction. (2) The misdemeanor offense of improper handling of a firearm in a motor vehicle does not involve dishonesty and may not be used for purposes of impeachment.

State v. Cornell (1998), 129 Ohio App. 3d 106 -- Court admitted domestic violence victim's statements to officers as excited utterances. Court improperly prevented defense from questioning officer about declarant's prior "misuse of 911" conviction.

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Benefit of plea bargain

State v. Sidibeh, 192 Ohio App. 3d 256, 2011-Ohio-712, ¶49-51 – A witness’ plea agreement with the prosecution is relevant, and admissible to reveal potential bias.

State v. Gonzales, 151 Ohio App. 3d 160, 2002-Ohio-4937, ¶43-49 -- Codefendant's agreed sentence in exchange for his testimony was less than the mandatory sentence for the crime he pled to. Core Sixth Amendment confrontation rights were not violated by refusal to allow questioning to establish this fact, thus issue is whether there was an abuse of discretion. While limitation was "technically erroneous," it was not abuse of discretion in view of other questions that were allowed.

State v. Ferguson (1986), 30 Ohio App. 3d 171 -- Headnote 2: "It is error for the court to prohibit the defense during cross-examination from impeaching the testimony of a witness by showing that (1) the witness was also indicted for the same offenses, and (2) the witness had been granted immunity in exchange for his testimony." Also see State v. Aldridge (1981), 3 Ohio App. 3d 74.

State v. Simms (1983), 9 Ohio App. 3d 302 -- While accomplice could be cross-examined concerning expected benefits through plea bargaining, in exchange for his testimony, defense could not call expert witness to testify that the plea bargain was contrary to law.

State v. Greer (1988), 39 Ohio St. 3d 236, 242-243 -- (1) The prosecutor may inquire into the benefits of a past plea bargain when the defendant claims he pleads guilty when he is guilty. (2) A parole violation is probative of truthfulness or untruthfulness and may be used to impeach.

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