Smith v. State ( 1988 )

PARKS, Judge,

specially concurring:

I write separately only to expand on this Court’s abolition of the “surprise” and “prejudice” requirements under 12 O.S. 1981, § 2607. While I agree that the application of such requirements would amount to “judicial legislation,” I favor close scrutiny of evidence admitted under this section in order that we may guard against placing “before the jury prior inconsistent statements not admissible as substantive evidence.” Graham, Examination of a Party’s Own Witness Under the Federal Rules of Evidence: A Promise Unfulfilled, 54 Tex.L.Rev. 917, 977 (1976).

The adoption of the balancing test of 12 O.S.1981, § 2403 to limit the admissibility of impeachment evidence conforms to the legislative intent behind Section 2607. See Note, Impeachment of One’s Own Witness Under Rule 607, 32 Okl.L.Rev. 393 (1979). Although the balancing approach is much more flexible than the “unsatisfactory mechanical approach” of the “surprise-prejudice” test, such impeachment evidence is not without limits. Id. at 397. A close scrutiny of the proffered evidence under the standards of Section 2403 is favored. Section 2403 looks to the probative value of the evidence in relation to its prejudicial effect. Under this analysis, probative value would be measured by the value of the evidence for impeachment purposes. Such factors as the reliability of the source used to introduce such testimony, the reliability of the statement, and its impeachment value would be considered. Balanced against the probative value of the statement is the degree of prejudice caused to the opposing party. When considering the prejudicial effect, factors such as the actual content of the statement, the possibility that the jury will consider it as substantive evidence, and the impeachment value will be scrutinized.

This new approach to Section 2607 forces the trial judge to weigh the evidence to determine its admissibility. The factors stated above shall be considered when determining the admissibility of the impeachment evidence under Section 2403. Furthermore, Section 2403 also requires consideration of unfair prejudice, possible misleading the jury and unfair or harmful surprise.

Accordingly, I concur in the affirmance of appellant’s judgment and sentence.