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Having second thoughts

It happens all the time:  a woman makes a claim of domestic violence, recounting to the police in vivid detail just how her husband punched her and knocked her down.  A couple weeks later, she decides that she loves him or he just needs counseling or he just needs to stop being drunk all the time or she needs his paycheck, or whatever; the net result is that she tells the prosecutor that what really happened is that she slipped and fell into a counter.  The prosecutor, knowing that she's recanted, realizes that he can't use her prior statement if he calls her to the stand:  EvidR 607 bars a party from impeaching their own witness with a prior inconsistent statement unless the party can show both surprise and affirmative damage.  So what's the prosecutor to do?

Just ask the trial court to call the wife as the court's own witness, under EvidR 614, which will allow him to cross-examine the witness, and impeach her with the statement.  This happens all the time.  It happened in yesterday's 8th District decision in State v. Sutphin.  Trial judges routinely grant these requests. 

But what if the trial court doesn't?  That was the focus of the arguments before the Supreme Court on Tuesday in State v. Ginley.

On the surface, Ginley provided a simple legal issue:  the State argued that the trial judge improperly required the prosecution to prove that the defendant had threatened the victim before the witness could be called under Rule 614.  Just beneath the surface, though, was a factual and procedural quagmire.  First, the record wasn't real clear on exactly what the trial judge had said.  The State claimed that his first words upon hearing the request were, "Why should I grant this?  I haven't granted one of these in twelve years."  The defense contended that the judge was joking, and, knowing the judge, that's not unlikely. 

Moreover, it wasn't clear that the judge had overruled the State's request only because there had been no evidence of threats, or whether he considered that as a factor in exercising his discretion on whether to grant the motion.  This wasn't a witness simply expressing reluctance to testify; she'd gone out and hired her own lawyer, and claimed steadfastly (mostly through him) that her previous statement was untrue.  When Justice O'Donnell quizzed defense counsel about "what the judge said on page 15 of the transcript," counsel was ready to point out what the judge said on page 15 had to be read in context of what he said on page 12 and 13 and 14, and then read from those pages, putting things in an entirely different light. 

Making things even worse was that the State had appealed the judge's decision to the 8th District under an appeal as of right under CrimR 12(K), and as a discretionary appeal.  The 8th dismissed the first one for failure to meet the requirements of 12(K), and on the same day dismissed the second as moot.  Even the defense conceded that the latter ruling didn't make any sense, but should be treated simply as a denial of a discretionary appeal.  That made the issue whether the 8th District had abused its discretion in deciding not to determine whether the trial judge had abused his discretion.

If that doesn't have you reaching for the dramamine, consider this:  the prosecution's argument was centered on the idea that using 614 was the only way to get what the alleged victim had told the police before the jury, so they could decide what the truth really was.  There's a problem with that argument, though:  as this case notes, the prior inconsistent statement isn't substantive evidence.  If the witness is impeached with the prior statement, the defendant's entitled to a jury instruction that the prior statement can only be used in determining the witness' credibility, but is not to be considered as evidence.  In fact, if you're handling an appeal from a case like this, you can argue that it was ineffective assistance of counsel not to ask for that instruction, and plain error not to give it, especially if there's no corroborating evidence of an assault, like medical records or observations by the police of injuries.  In that case, the defendant would be entitled to a Rule 29, because the impeachment can't provide substantive evidence that a crime was committed.

If I'm handicapping it, I'd say there's better than a 60% chance that the court never makes a decision in Ginley, instead booting it as having been improvidently granted, and another 35% chance that they simply kick it back down to the 8th District for a decision.  It's bad enough that the record and procedural history are so muddled, but that greatly complicates the ability to draw up any specific rule of law.  Yes, granting a 614 motion doesn't require proof of threats, but that seems to be a factor that should be taken into consideration, doesn't it?  After all, if there are no threats, it's more likely that the victim's recantation is true.  And if you acknowledge that it is, and if the record indicates that's all the judge did, what is left for the court to decide?

That's not to say the prosecutor doesn't have a point.  Recanting witnesses are a serious and recurring problem in domestic violence cases, and one gets the sense that what the State was really arguing for was a blanket policy of having judges use 614 to force those witnesses to the stand.  In fact, as Sutphin suggests, and as many defense attorneys would argue, many judges already seem to have adopted that as a policy:  if there's a recanting witness in a domestic violence case, she's going to wind up being called as a court's witness.

Whether that's a good policy is another matter.  Using Rule 614 inflexibly in that situation essentially negates Rule 607, and does so solely for the purpose of allowing in evidence which can't be considered for substantive purposes anyway.  Are there a sufficient number of recanting witnesses to warrant such an approach, and would the approach in fact make the outcome in such cases more reliable?  Are there other ways of resolving that problem?  Two justices brought up that point; Lundberg-Stratton asked whether a change in the rule was in order, and O'Connor inquired as to whether the prosecutor's office used the threat of charging a recalcitrant witness with giving a false police report as an inducement to testify.  This also highlights the problems of adopting policies at the judicial level:  it would be much easier for a legislative committee to dig into the issue to determine the effectiveness of such approaches than it is for a court.

Recalcitrant witnesses in domestic violence cases certainly poses a problem, and it may be that tinkering with the rules may be part of a policy response to that problem.  Unfortunately, Ginley, because of its muddled record and procedural history, provides a very poor vehicle for doing so.

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