State v. Garfield

I concur with the majority with the exception of its analysis of appellant's fifth assignment of error.

It is fundamental in the law of evidence that any witness may be asked questions on cross-examination that are intended to expose that witness' bias, prejudice, or interest in the case against the adverse party, or another principal witness for the opposing side. The appellant, the state, and the majority ignore this basic ground for the propriety of the trial court's action permitting the questions asked by the state of the appellant's wife concerning her alleged displays of enmity toward the prosecutrix and members of her family, and the testimony in response to that line of questioning, as well as the rebuttal by the appellee on this subject.

In criminal cases it is basic that great latitude is allowed on cross-examination in order to test the credibility of a witness, and to demonstrate facts which tend to establish bias or prejudice, or any other motive the witness may have for giving his testimony. Evid. R. 607. "Because of the importance of evidence of bias or interest, inquiry into the area is never collateral, and a witness' denial of the facts constituting bias or interest may be rebutted with extrinsic evidence." UnitedStates v. Frankenthal (C.A. 7, 1978), 582 F.2d 1102, 1106.

"The fairness of a witness may be shown by cross-examination. Inquiries into the feeling or disposition of the witness to conceal or pervert the truth are not to be excluded as being collateral. Accordingly, the interest of a witness in the result of the case may be shown by cross-examination.

"A witness may also be cross-examined as to his feelings toward the parties to the suit, as affecting his credibility. It is therefore competent to show by cross-examination the witness' bias and prejudice against the cross-examining party and in favor of the party who called him as a witness. The witness may, accordingly, be cross-examined as to any expressions or acts tending to show a bias for or against either of the parties. Personal ill will on the part of a witness is evidence of bias, and it is competent to elicit the fact on cross-examination." (Footnotes omitted.) 44 Ohio Jurisprudence 3d (1983) 297-298, Evidence and Witnesses, Section 902.

Appellant and appellee both misapply Evid. R. 608(B) to the foregoing appropriate ground of inquiry. It is to be read and applied to evidence of character and conduct of a witness as stated in Evid. R. 608(A), and not to standard areas of cross-examination as to bias, prejudice, and interest.

The rationale underlying Evid. R. 608(B) is to work as a check on proof of character when offered for impeachment purposes, and is obviously thus governed by Evid. R. 608 and 609.

The specific conduct limitation in Evid. R. 608(B) is there to guard against prejudicial abuse primarily in cross-examination of character witnesses, and not witnesses in general. The triggering of this provision obtains in the following circumstances.

Generally, it is elementary that the state may not introduce evidence of a defendant's character. When a defendant places his reputation in issue by the introduction of character witnesses, he opens the avenue for the prosecution to test the credibility of such witnesses by making inquiry on cross-examination regarding whether the witness had knowledge of specific facts which, if they were really generally known, could have a distinct propensity to detract from the summary of reputation testified to by a character witness or witnesses, if such witness indicated he was not aware of them. Gross v. United States (C.A. 8, 1968),394 F.2d 216, 219.

This exercise of the right to test the credibility of character witnesses by such means is fraught with great potential prejudice.

The Supreme Court of the United States elaborated on this problem in Michelson v. United States (1948), 335 U.S. 469, and suggested some of the curative steps that should be exercised, and in part underlie Evid. R. 608(B). The court stated, at 480-481:

"Wide discretion is accompanied by heavy responsibility on trial courts to protect the practice from any misuse. The trial judge was scrupulous to so guard it in the case before us. He took pains to ascertain, out of presence of the jury, that the target of the question was an actual event, which would probably result in some comment among acquaintances if not injury to defendant's reputation. He satisfied himself that counsel was not merely taking a random shot at a reputation imprudently exposed or asking a groundless question to waft an unwarranted innuendo into the jury box."

Also, where a defendant's character witness has been cross-examined as to whether the witness had knowledge of specific facts which, if generally known, would have the result of detracting from the character testimony, the jury should be cautioned that the testimony has reference solely to reputation and not to the truth of collateral facts. Gross v. United States,supra.

Again, the purpose of Evid. R. 608(B) is to guard against the danger lurking in the impeachment of character witnesses where, in order to frame an intelligible question, the examiner's interrogatory frequently provides details of specific misconduct affecting general reputation which would not otherwise be admissible. Shimon v. United States (C.A.D.C. 1965),352 F.2d 449.

Consequently, Evid. R. 608(B) is to be applied to that limited area of the law, and is not to be used to emasculate other legitimate areas of cross-examination involving impeachment for bias.

Further, even if the issue in this case on this subject were solely the impeachment of a character witness, the line of questioning developed with this witness was consonant with Evid. R. 608(B)(1). Nothing in the record before this court manifests an abuse of discretion on the part of the trial court concerning legitimate impeachment of the witness' character for truthfulness, albeit on a seemingly peripheral matter.

I conclude that there is no need for an excursion in harmless error.