The Columbus Dispatch yesterday had an article about the Ohio Supreme Court's hearing oral arguments Tuesday morning about a case that could affect some domestic-violence prosecutions across the state.
In an altogether common problem alleged victims of domestic violence eventually recant what they told police and decide not to testify against their husbands or boyfriends. The Cuyahoga County prosecutor's office wants the high court to instruct judges to consider calling accusers to the stand in domestic-violence cases, which would give prosecutors a chance to cross-examine them on statements and complaints made to police before they then refused to testify. (Memorandum in support of jurisdiction )
"Until the decisions of the United States Supreme Court in Crawford v. Washington (2004), 541, U.S. 36, 124 S.Ct. 1354, and Davis v. Washington (2006), 547 U.S. 813, 821, 126 S.Ct. 2266," Cuyahoga’s petition read, "prosecutors had some latitude to introduce hearsay in accordance with the applicable evidentiary rules. In the aftermath of those decisions, it is nearly impossible to prove a domestic violence case when the complaining witness recants before trial….. Evid. R. 614(A) offers some hope. The rule allows the court to call the victim as its witness, affording the prosecutor the ability to cross-examine the victim on his or her prior statement and subsequent recantation., (but) as the facts of this case demonstrate, trial judges unaccustomed or openly hostile to the rule can place it out of reach, foreclosing any reasonable hope for proving a recanting-victim domestic violence case…"
Citing the 2003 Lake County case, State v. Sealey, Cuyahoga pointed out "the court's authority to call a witness pursuant to Evid. R. 614(A) is within its inherent authority, and should be exercised in fulfillment of its fundamental duty to arrive at the truth," and posits that "a review of Ohio decisional law by the undersigned reveals no other court that requires specific proof of a threat as a prerequisite to use of Evid. R. 614(A)."