Franklin County Criminal Law Casebook

Reproduced with permission from:
Timothy E. Pierce and the Franklin County Public Defender Office

Evidence Rule 608(B) -- Specific instances of the conduct of a witness used to attack or support credibility.
State v. Brooks, 176 Ohio App. 3d 210, 2008-Ohio-1726 – As a discovery sanction the state was not allowed to use defendant‘s statement to an officer. Defendant testified and officer‘s testified as to the defendant‘s contradictory statement at the time of arrest. Reversed. Had there been a Miranda violation the defendant would have been on notice that pursuant to case law his statement would have become admissible. But defense counsel was not on notice in the circumstances of this case.
State v. Hawn (2000), 138 Ohio App. 3d 449, 468-470 -- State called a second firearms expert in rebuttal, who in a dramatic manner offered further testimony concerning gunshot residue. This crossed the line of proper rebuttal, leading to reversal.
State v. Griffin (2001), 142 Ohio App. 3d 65, 78 -- The victim's hearsay statements explaining she was afraid of the defendant because she awakened to find him holding a knife to her throat were inadmissible. The defense did not open the door to comparable inquiry on redirect when it backed away from further questioning after a witness said the victim was in the habit of bringing the family steak knives to work. "It should be noted that the 'open door' theory is theoretically intended to be curative. The justification for a party's use of improper rebuttal evidence is the necessity to respond to the opponent's first use of such evidence. In other words, the theory is a means of counterattack. Here, rather than as a response to improper hearsay, the state is urging the 'open door' theory as a means to left the state's introduction of improper, highly prejudicial hearsay evidence for the first time."
State v. Bowman (2001), 144 Ohio App. 3d 179, 186-190 -- State was properly allowed to call emergency medical technician in rebuttal to respond to the defendant's claim she was struck in the face by a deputy. Responding technician testified that 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. Grinnell (1996), 112 Ohio App. 3d 124, 146-147 -- "The purpose of rebuttal is to permit the state the opportunity to refute new evidence offered by the defendant in the presentation of his case...A party has an unconditional right to present rebuttal testimony on matters which are first addressed in his opponent's case-in-chief...It is error for a court to deny a plaintiff the right to explain or rebut testimony concerning a material issue which is introduced for the first time during the defendant's case-in-chief." Court concludes state's rebuttal did not meet these conditions, but erroneous admission was nonprejudicial.
State v. Watters (1985), 27 Ohio App. 3d 186 -- The prosecutor's witness list must include witnesses who may be called on rebuttal. Defendant has demonstrated that belated disclosure was prejudicial where the prosecutor had failed to disclose letters from two of defendant's fellow prison inmates stating he had confessed to the crime he was being tried for, and where these inmates were called as rebuttal witnesses by the prosecution. Also see State v. Parson (1983), 6 Ohio St. 3d 442. Compare State v. Finnerty (1989), 45 Ohio St. 3d 104, 108 where it is concluded state could not reasonably have expected to be able to call rebuttal witness.
State v. Lundgren (1995), 73 Ohio St. 3d 474, 490-491 -- No abuse of discretion in allowing rebuttal of defendant's assertions concerning past events which were brought out in testimony of a psychologist and others at the penalty phase of a death penalty trial.
State v. Strobel (1988), 51 Ohio App. 3d 31 -- Defendant was being prosecuted for GSI of granddaughters. On cross, the prosecutor elicited a denial of sexual contact with other family members, which he then rebutted by calling other relatives. Held to be improper rebuttal as the prosecution and not the defendant had raised the issue. The defendant's denial did not "open the door" for rebuttal.
State v. Harris (January 20, 1994), Franklin Co. App. No. 93APA08-1154, unreported (1994 Opinions 79, 83) -- "...(T)estimony about "bad acts," the purpose of which is to rebut an assertion anticipated in the defense case is more properly held for rebuttal, not admitted in anticipation of testimony or evidence which may never be forthcoming."
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)." Also see State v. Leuin (1984), 11 Ohio St. 3d 172; State v. Lundy (1987), 41 Ohio App. 3d 163, 168-169.
State v. Hewitt (1985), 26 Ohio App. 3d 72 -- No error for court to permit introduction of documentary evidence during rebuttal as to prior convictions defendant had denied during cross, though Evid. R. 609 appears to direct 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. Perry (1996), 108 Ohio App. 3d 709, 714-715 -- Hospital records indicating alcohol level were not in proper form to be self-authenticating, but were authenticated by nurse called as a rebuttal witness. Court finds admission was not an abuse of discretion as the defendant had introduced evidence that he was sober.

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Published by Timothy E. Pierce
Copyright © Franklin County Public Defender and Timothy E. Pierce, 2015
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