You’re representing a defendant who’s accused of using his girlfriend as a punching bag.  When she gets on the stand, she denies anything happened.  The state presents her with the statements she made at the time of the incidents, where she recounted the beating in vivid detail, and has her read them to the jury.  She claims she made them up.  Is that enough to convict the defendant?

Maybe yes, but maybe no, as the 8th District explained last week in State v. Kelly.  The critical question is whether the prior statements can be used as substantive evidence — i.e., whether the jury can use them as proof that a crime was committed — or whether they can only be used for impeachment purposes.  As Kelly explains, Ohio follows the latter rule, which was established back in 1971 in State v. Dick.

So what does that mean?  Here’s how it works in practice.  The police in Kelly had taken numerous photographs of the victim’s injuries.  As the court explained,

The photographs constitute independent proof of the two felonious assault and one assault counts. Thus, the jury could test the credibility of the victim’s recantation by reference to the photographs.  In other words, the jury had every right to consider the recantation as dubious in light of the demonstrated physical evidence of injury depicted in the photographs. A bloody nose, swelling and bruising were consistent with the kind of injury suffered as a result of an assault or felonious assault. The jury could find the victim’s denial in light of this evidence to be unbelievable.

The defendant had also been convicted of abduction and intimidation.  The court tossed those, finding that there was no independent evidence, other than the victim’s recanted statements, to support them.

From a logical standpoint, this doesn’t make a lot of sense.  That’s not the court’s fault; the opinion closely tracked the law as it’s been laid down by the Ohio Supreme Court.  The chief problem seems to be the mental contortions involved in pretending that the statement isn’t going to be used as substantive evidence.  Here’s the cautionary instruction that the judge used, and that the Kelly court approved:

The court cautioned the jury that “I’m instructing you not to consider that for the truth of whether those statements actually occurred but we’re testing again the credibility of [the victim].” The court reiterated that it was permitting the statements for the specific purpose of examining the victim’s credibility, not for “whether these events actually occurred ***.” In fact, the court denied admission of the statements consistent with Dick because “they are not substantive evidence. They’re impeachable. They merely go as to impeach. They do not go in as evidence.”

Good luck with that.  Obviously, the statements were used as substantive evidence, because while the pictures were proof that the victim had been beaten, they didn’t prove who did it; the victim’s statements were the only substantive evidence as to the identity of the assailant.

As I said, the problem isn’t with the court’s decision, it’s with the rule.  The Dick court (and I can hear Beavis and Butthead chortling in the background as I write that) based the rule on the notion that the person making the statement hadn’t been subject to cross-examination when the statement was made, but I don’t see that being a big deal as long as they’re subject to cross-examination at trial.

Still, Kelly’s a good decision to have handy.  I’ve seen more than a few occasions where the prosecution attempts to prove a domestic violence by doing nothing more than presenting a recanting witness with her prior statements, and Kelly clearly holds that that’s not going to do the trick.