Unimpeachable: Ohio Court Finds Dismissed Domestic Violence Charges Inadmissible Under Rule 608(b)

Similar to its federal counterpart, Ohio Rule of Evidence 608(B) provides in relevant part that

Specific instances of the conduct of a witness, for the purpose of attacking or supporting the witness’s character for truthfulness, other than conviction of crime as provided in Evid. R. 609, may not be proved by extrinsic evidence. They may, however, in the discretion of the court, if clearly probative of truthfulness or untruthfulness, be inquired into on cross-examination of the witness (1) concerning the witness’s character for truthfulness or untruthfulness, or (2) concerning the character for truthfulness or untruthfulness of another witness as to which character the witness being cross-examined has testified.

So, let’s say that a defendant is charged with violating a protective order in large part based upon the testimony of the person protected under the order. And let’s say that the alleged victim had previously made allegations of domestic violence against the defendant, with those allegations later being dismissed. Should evidence of these dismissals be admissible under Ohio Rule of Evidence 608(B)? Let’s take a look at the recent opinion of the Court of Appeals of Ohio, Second District in State v. Hunt, 2014 WL 4384140 (Ohio.App. 2 Dist. 2014).

In Hunt, the facts were as stated above. In responding to the defendant’s argument about the admissibility of the dismissals, the court 

stress[ed] that Evid.R. 608(B) requires the conduct inquired about to be “clearly probative of truthfulness or untruthfulness” to be appropriate for questioning on cross-examination. If the evidence sought to be elicited is not clearly probative of the witness’s truthfulness or untruthfulness, the trial court does not abuse its discretion in precluding cross-examination.

The court then cited to two similar cases in which similar evidence was deemed admissible: State v. Fredrick,  2002WL360643 (2008), and State v. Husseln, 786 N.E.2d 536 (2003). But the court also noted that those two cases involved a key difference:

The case before us is distinguishable from Fredrick and Husseln because those cases involved eliciting evidence of false prior allegations, which is clearly probative of the victim’s untruthfulness. In this case, Hunt’s trial counsel never indicated that he was going to elicit testimony showing that [the victim]’s prior allegations against Hunt were dismissed because they were false. Instead, Hunt’s counsel explained that: “I’m trying to proffer the fact that part of the allegation here is that it’s based on her word. I think prior allegations made by her that are ultimately dismissed go to her credibility.”…Accordingly, the record indicates that Hunt’s trial counsel was attempting to cross-examine [the victim] on her character for truthfulness or untruthfulness by eliciting evidence showing that her prior charges were dismissed. 

The dismissal of a witness’s prior charges, however, is not clearly probative of the witness’s character for truthfulness or untruthfulness, as charges can be dismissed for many reasons other than being unfounded. Asking [the victim] whether her prior allegations were dismissed because they were determined to be false would have been appropriate under the rule, as that would be clearly probative of truthfulness or untruthfulness. However, that is not what counsel asked, and that is not what he told the trial court he was going to elicit. We further note that the docket in Case No. 13 CRB 00282 indicates that the telephone harassment and criminal trespass case was settled at a hearing and resulted in a disposition of not guilty. Again, that outcome is not clearly probative of [the victim]’s truthfulness or untruthfulness, as it does not necessarily indicate her allegations were false. 

-CM