Opinion

State v. Hall

  • 106 Ohio App. 3d 183
  • 665 N.E.2d 728
Court
Ohio Court of Appeals
Filed
Sep 1, 1995
Status
Published
Author
Grady
On the bench
Young, Brogan, Grady
Cited by
4 cases
Authority
More cited than 43.0%

The opinion

*195

Grady, Judge,

concurring:

I do not agree with Judge Young that the state was entitled by Evid.R. 608(B) to impeach Monique Littlejohn by interrogating her concerning a possible welfare fraud offense. Every witness who testifies under oath puts his or her credibility into issue. Evid.R. 616 permits impeachment of any witness on any relevant issue, including credibility. Evid.R. 608(B) permits the use of specific instances of misconduct for impeachment, if they are clearly probative of truthfulness or untruthfulness. Fraud is probative of those issues. However, Evid.R. 609(A) prohibits use of evidence of a criminal offense for impeachment purposes unless it has resulted in a conviction. “Except for the provisions of Rule 609 respecting conviction of a crime, collateral or extrinsic evidence of such instances of bad conduct is not admissible. This limitation is consistent with prior Ohio law.

State v. Cochrane

(1949), 151 Ohio St. 128 , 38 O.O. 575 , 84 N.E.2d 742 .” Staff Note to Evid.R. 608(B), July 1,1992 Amendment. Nevertheless, I agree that the defendant’s failure to object waives any error, and that no plain error is evident under the outcome-based standard of

State v. Long

(1978), 53 Ohio St.2d 91 , 7 O.O.3d 178 , 372 N.E.2d 804 .

I most emphatically do agree that the prosecutor’s closing remarks about Littlejohn and the defendant were improper. “She’s on ADC. She’s having babies to get more money for ADC. He’s fathering them. It’s a wonderful system we’ve got.” These are statements calculated to invoke the passion and prejudice of the jury concerning one of the most controversial issues of the day. They were not authorized by Evid.R. 616 or any of the other Rules of Evidence concerning methods of impeachment. Had the defendant objected, failure to sustain the objections would be reversible error. Even had an objection been sustained a mistrial could be warranted. Neither motion was made, and so the state is saved by the plain error analysis. However, counsel should remember that prosecutorial misconduct can constitute a violation of the Code of Professional Responsibility that courts are encouraged to refer to the Supreme Court’s Disciplinary Counsel.

State v. DePew

(1988), 38 Ohio St.3d 275 , 528 N.E.2d 542 .

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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