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Criminal Law Casebook
Franklin County Criminal Law Casebook
Reproduced with permission from:
Timothy E. Pierce
Franklin County Public Defender Office
Evidence Rule 404 -- Character Evidence Not Admissible to Prove Conduct; Exceptions; Other Crimes.
Evidence Rule 405 -- Methods of Proving Character.
Evidence Rule 608 -- Evidence of Character and Conduct of Witness.
Defendant's Character and Reputation
Victim's Character and Reputation
State v. Green
, 184 Ohio App. 3d 406,
– In a drug prosecution the defense called the defendant’s son, who testified that his mother was addicted to pain medication. This did not constitute character evidence, and thus did not open the door to cross concerning her prior record and present incarceration for drug trafficking.
State v. Brown
, 100 Ohio St. 3d 51,
, ¶ 25 -- "...(w)e find that the trial court should not have allowed appellant's mother to testify as to his participation in a gang. This testimony was irrelevant and portrayed appellant in a negative light."
State v. Daniels
, Cuyahoga App. No. 81367,
-- Defense called a police officer as a character witness. Prosecutor, with aid from the bench, adduced testimony that the defendant's brother was in jail on homicide charges. Testimony was irrelevant and introducing it was prosecutorial misconduct. Reversed as the court is unable to conclude beyond a reasonable doubt that the jury would have otherwise found the defendant guilty.
State v. Edmonds
(2000), 139 Ohio App. 3d 298 -- Court improperly permitted prosecutor in a forgery and tampering with evidence trial to ask the defendant about a past court appearance arising from failure to pay child support.
State v. Agner
(1999), 135 Ohio App. 3d 286 -- Testimony as to other drug sales by the defendant was not admissible as similar acts evidence, but was admissible to rebut character evidence to the effect that the defendant was not known to engage in the sale of drugs.
State v. Grubb
(1996), 111 Ohio App. 3d 277 -- Prosecutor used defendant's response during cross-examination as the point of departure for calling defendant's ex-wife to rebut his claim he had never assaulted her. Defendant on his own had made no claims concerning his good character. At p. 281: "The prosecution cannot circumvent the limited nature of the exception provided in Evid. R. 404(A)(1) by putting the character of an accused in issue via its own questions, and then present evidence to rebut the answers."
State v. Armstrong
(September 25, 1980), Franklin Co. App. No. 80AP-296, unreported (1980 Opinions 3068) -- The indictment does not place the defendant's character in issue. It was error to allow the state's star witness in an arson prosecution to testify that the defendant had also offered him other income opportunities involving severed hands and broken legs.
State v. Kamel
(1984), 12 Ohio St. 3d 306, 310-311 -- In a child endangering and manslaughter prosecution, the defendant had 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)."
State v. Leuin
(1984), 11 Ohio St. 3d 172 -- During the trial of a dentist for gross sexual imposition, his office assistant was questioned about her personal relationship with the defendant. Over objection, the state in rebuttal called witnesses to contradict her testimony. At page 174: "That is not to say, however, that the state was prohibited from questioning Williams on cross-examination as to these specific instances of conduct. Evid. R. 608(B) allows, in the court's discretion, cross-examination on specific instances of conduct 'if clearly probative of truthfulness or untruthfulness.' Nevertheless, if the answers received on cross-examination do not satisfy the examiner, it is said that the examiner is bound by or 'stuck' with the responses. See, e.g.,
State v. Gardner
(1979), 59 Ohio St. 2d 14, 19." Also see
State v. Jurek
(1989), 55 Ohio App. 3d 70, 73-74;
State v. Workman
(1984), 14 Ohio App. 3d 385, 391;
State v. Stroebel
(1988), 51 Ohio App. 3d 31;
State v. Lundy
(1987), 41 Ohio App. 3d 163;
State v. Rodriquez
(1986), 31 Ohio App. 3d 174 (extrinsic evidence of consideration for testimony);
State v. Williams
(1981), 1 Ohio App. 3d 156 (falsification about background).
State v. Johnson
(1994), 71 Ohio St. 3d 332, 339-340 -- Testimony concerning the defendant's hatred of women was improperly admitted. At p. 340: "...(W)e believe hatred of women indicates evidence of a character trait, and under Evid. R. 404(A), evidence of a character trait may not be used to prove that a person 'acted in conformity therewith on a particular occasion.'"
State v. Brumback
(1996), 109 Ohio App. 3d 65, 79 -- "We agree with the majority view of the federal courts that, regardless of whether the witness has testified to the defendant's reputation in the community or to his or her personal opinion, it is error to permit a character witness in a criminal trial to be cross-examined with questions that require an assumption of the defendant's guilt."
State v. McCray
(1995), 103 Ohio App. 3d 109, 115-117 -- Error (though harmless) for prosecutor to cross examine defendant's character witnesses about knowledge of drug use, prior arrests and interest in the occult, when they had only testified as to positive character for peacefulness and nonviolence. Opinion discusses, but doesn't resolve, further contention that asking character witnesses if their opinion would change, assuming the defendant had committed the acts charged, impermissibly erodes the presumption of innocence. See
United States v. Williams
(7th Cir. 1984), 738 F.2d 172, 176-177.
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. Renner
(1998), 125 Ohio App. 3d 383 -- Limited testimony concerning prior acts of domestic violence was relevant as it tended to explain victim's state of mind entering vehicle when a gun was displayed. Testimony concerning the defendant's profane and insulting language to police officers and conduct at the police station after arrest was irrelevant and sufficiently prejudicial to warrant reversal.
State v. Smith
(1992), 84 Ohio App. 3d 647 -- Testimony of an expert witness concerning behavior traits of pedophiles was improperly admitted as a part of the state's case in chief. The effect of the testimony was to show the defendant acted in accordance with an undesirable character trait.
State v. Tillman
(1997), 119 Ohio App. 3d 449, 459 -- At his first trial a rape defendant claimed he was innocent because he was homosexual. Though he did not testify or advance the same claim at the second trial, the prosecutor got the prior statement before the jury. Found to be error, though harmless.
State v. Hale
, 119 Ohio St. 3d 118,
, ¶41-44 – Defendant wanted to have a witness testify that the homicide victim had forced him to perform oral sex. While Evidence Rule 405 may allow use of specific instances of conduct in cross of the other side‘s character witnesses, or when character or a trait of character is an element, it does not permit introduction of extrinsic evidence.
State v. Moman
, Columbiana App. No. 01 CO 52,
-- Applying Evid. R. 608(A), testimony of informant's ex wife as to acts indicating poor character was properly excluded. No proffer was made as to his reputation in the community.
State v. Rivers
(1977), 50 Ohio App. 2d 129, 131 -- "The defendant in a criminal case has the right to impeach state witnesses by proof of their bad reputation for truth and veracity..." The proper foundation is to ask the impeachment witness if they have the means of knowing the witness' reputation in this regard.
State v. Agner
(1972), 30 Ohio App. 2d 96, 103 -- "...(A)n accused may assail the character of a witness for the state. It is largely for the court to determine how far a litigant may go in showing facts affecting the credibility of a witness. Nevertheless, a defendant in a criminal case is 'entitled to all the evidence in the case legitimately bearing on the question of' the veracity of a witness for the state. In Ohio proof to impeach a witness' credit for truth and veracity is limited to his reputation in that respect, and it is not competent to inquire of the general reputation of the witness. The defendant may impeach the state's witness by proving his bad reputation for truth and veracity as it goes directly to discredit his testimony." (citations omitted)
State v. Stringfield
(1992), 82 Ohio App. 3d 705, 712 -- "The violent character of a victim is not relevant unless the accused shows he acted in self-defense or out of extreme emotional distress from reasonable provocation." (Or unless it otherwise becomes relevant.)
State v. Austin
(1996), 115 Ohio App. 3d 761, 764-765 -- A defendant claiming self-defense may testify as to instances of the victim's prior conduct which tend to show why he believed it was necessary to defend himself. This does not open the door for the prosecutor to go into the defendant's character, which may be done only as allowed by Evid. R. 404.
State v. Schecter
(1975), 44 Ohio St 2d 188 -- Defense that the victims's mother had actually committed the homicide was countered by the prosecution calling two judges as character witnesses for her. Syllabus: "Evidence cannot be given to prove an infamous crime against a witness, of which she has not been convicted, for the purpose of impeaching her credit; yet, where the question as to whether the witness is guilty of such a crime becomes the legitimate subject of inquiry on the trial, her reputation for truth may be proved, to rebut the imputation of guilt which the evidence makes against her..." Also see
State v. Schecter
(1974), 47 Ohio App. 2d 113.
State v. Greer
(1988), 39 Ohio St. 3d 236, 243 -- A parole violation is probative of truthfulness or untruthfulness and may be used to impeach.
State v. Shields
(1984), 15 Ohio App. 3d 112, 113 -- "Counsel cannot challenge a witness' credibility with evidence of bad moral character...They may seek to impeach a witness on cross-examination by questions about prior misconduct which relate directly to truthfulness. Evid. R. 608(B). The trial court has discretion to determine whether the alleged prior conduct is 'clearly probative of truthfulness or untruthfulness.'"
State v. Tolliver
(1984), 16 Ohio App. 3d 120 -- Prosecutor's snide comments regarding a key defense witness named Cockwell, who had undergone a sex change operation, improperly sought to discredit witness in respect to matters other than reputation for truth and veracity.
State v. Covrett
(May 4, 1993), Franklin Co. App. No. 92AP-1195, unreported (1993 Opinions 1615) -- After defense counsel in opening statement asserted his male client would never have sex with another man, prosecutor called a bystander in the courtroom who testified to the contrary. Though the issue may have been raised, it was error to allow the prosecutor to call the witness without first providing counsel the opportunity to explain the assertion made in his opening statement.
Sidney v. Little
(1997), 119 Ohio App. 3d 193 -- Defense counsel referred to client's clean driving record during opening statements. Judge granted prosecutor's motion for a mistrial. (1) Reference was not outside the bounds of proper opening statements as character may be made an issue. (2) Even if it proved to be so, mistrial was not a matter of manifest necessity as the judge could have sustained a motion in limine, given an instruction that opening statements are not argument, or withheld ruling on motion until the defendant testified or elected not to do so.
Timothy E. Pierce
Copyright © Franklin County Public Defender and Timothy E. Pierce, 2015
Contents may not be duplicated without express permission.