Ohio R. Evid. 616
In addition to other methods, a witness may be impeached by any of the following methods:
Ohio. R. Evid. 616
Staff Note (July 1, 1991 Amendment)
Rule 616 Methods of impeachment
As originally adopted, neither the Ohio nor the Federal Rules contained a rule governing impeachment regarding bias or interest. In United States v. Abel (1984), 469 U.S. 45, 105 S.Ct. 465, 83 L.Ed. 2d 450, the U.S. Supreme Court held that impeachment of a witness for bias was proper, notwithstanding the lack of a specific rule. According to the Court, "the lesson to be drawn .... is that it is permissible to impeach a witness by showing his bias under the Fed. Rules of Evid. just as it was permissible to do before their adoption." Id. at 51.
Impeachment by bias also is permitted in Ohio. R.C. 2945.42 provides: "No person is disqualified as a witness in a criminal prosecution by reason of his interest in the prosecution as a party or otherwise. . . . .Such interest .... may be shown for the purpose of affecting the credibility of such witness." In addition, the Ohio Supreme Court has written: "It is beyond question that a witness' bias and prejudice by virtue of pecuniary interest in the outcome of the proceeding is a matter affecting credibility under Evid.R. 611(B)." State v. Ferguson (1983), 5 Ohio St.3d 160, 165, 450 N.E.2d 265. Evid.R. 611(B), however, is the general provision on cross-examination and does not mention explicitly the term bias.
The Rules of Evidence contain a number of impeachment rules (Rules 607, 608, 609, and 613). Because of its importance as a traditional method of impeachment, bias also should be explicitly treated in the Rules of Evidence, as it is in some jurisdictions. See Unif. R. Evid. 616; Haw. R. Evid. 609.1; Utah R. Evid. 608(c); Mil. R. Evid. 608(c).
Staff Note (July 1, 1998 Amendment)
Rule 616 Methods of Impeachment
The amendments to this rule codify two common law rules of impeachment, making them more readily accessible for trial use. The prior rule was lettered as division (A) but was not otherwise changed by the 1998 amendment; divisions (B) and (C) were added by this amendment. Also, the title of the rule was changed from "Bias of Witness" to "Methods of Impeachment."
Rule 616(B) Sensory or mental defect
The pre-Rules cases permitted inquiry into a witness's capacity to observe, remember, and recall. See State v. Auerbach (1923), 108 Ohio St. 96, 98, 140 N.E. 507 ("means of observation"); Morgan v. State (1891), 48 Ohio St. 371, 373-74, 27 N.E. 710 (opportunity to observe, "intelligence"); Lee v. State (1871), 21 Ohio St. 151, 154 (recollection), and McAllister v. State (App. 1932), 13 Ohio Abs. 360, 362 (mental condition affects credibility); as well as other factors affecting perception and memory. Stewart v. State (1850), 19 Ohio 302, 304 (proper to cross-examine witness on opportunity to observe and to remember).
The post-Rules cases are in accord. The Supreme Court has ruled that a witness's visual impairment is not a ground for incompetency under Evid.R. 601, but rather a factor "relat[ing] to the credibility of the statements made by [the witness]." Turner v. Turner (1993), 67 Ohio St.3d 337, 343, 617 N.E.2d 1123. See also Kenney v. Fealko (1991), 75 Ohio App.3d 47, 51, 598 N.E.2d 861 ("The Ohio Rules of Evidence do not enumerate the various ways in which the credibility of a witness can properly be attacked.... Under [Evid.R. 611(B)] and the common-law rule, evidence of appellant's state of intoxication was admissible because it was relevant to the issue of her ability to perceive and hence her credibility.").
Division (B) provides for the admissibility of this type of evidence on cross-examination or through extrinsic evidence (i.e., the testimony of other witnesses). This provision does not change Evid.R. 601, which governs the competency of witnesses, or Evid.R. 602, which specifies the firsthand-knowledge requirement. The admissibility of expert testimony on these issues must satisfy the requirement of Rule 702.
Rule 616(C) Specific contradiction
There are two distinct methods of impeachment by contradiction. First, self-contradiction involves the use of a witness's own prior inconsistent statements or conduct to contradict the witness's present testimony. Evid.R. 613 governs this type of impeachment.
Second, contradiction may involve the testimony of one witness that conflicts with the testimony of another witness (called "specific contradiction"). The circumstances under which a party may introduce extrinsic evidence of contradiction is typically stated in terms of the so-called "collateral matters" rule. E.g., Byomin v. Alvis (1959), 169 Ohio St. 395, 396, 159 N.E.2d 897 (per curiam) ("It is elementary that a witness may not be impeached by evidence that merely contradicts his testimony on a matter that is collateral."); State v. Cochrane (1949), 151 Ohio St. 128, 135, 84 N.E.2d 742 ("The cross-examiner is not permitted to introduce rebuttal evidence to contradict the witness on collateral matters.").
The common law rule does not prohibit a party from cross-examining on a "collateral matter." It prohibits only the introduction of extrinsic evidence on the issue. The policy underlying this rule is to "[avoid] the dangers of surprise, jury confusion and wasted time which are the reasons for the rule against impeachment on collateral matters." State v. Kehn (1977), 50 Ohio St.2d 11, 17, 361 N.E.2d 1330 (per curiam), cert. denied, 434 U.S. 858, 98 S.Ct. 180, 54 L.Ed.2d 130 (1977).
According to Wigmore, extrinsic evidence of contradiction should be admitted if the evidence would be admissible "for any purpose independently of the contradiction." 3A Wigmore, Evidence § 1003, at 961 (Chadbourn rev. 1970). Explaining this test, McCormick wrote that two types of facts were independently provable: "The first kind are facts that are relevant to the substantive issues in the case". McCormick, Evidence § 47, at 110-11 (3d ed. 1984). Because Rule 616(C) is limited to impeachment, evidence concerning the substantive issues is governed by Rules 401 to 403, not this rule.
The second category are "facts showing bias, interest, conviction of crime, and want of capacity or opportunity for knowledge." Id. In other words, the second category encompasses those methods of impeachment, such as bias, that always permit the introduction of extrinsic evidence. The Ohio Supreme Court appears to have adopted Wigmore's approach in an early case. Kent v. State (1884), 42 Ohio St. 426, 431 (Extrinsic evidence is admissible when "the matter offered in contradiction is in any way relevant to the issue, or such as tends to show prejudice or interest."). Evid.R. 616(C)(1) enumerates the rules that fall within this category.
McCormick argued that extrinsic evidence of contradiction should also be admitted in a third situation, one in which such evidence is critical to determining the credibility of a witness's story. He refers to this as "linchpin" evidence: "So we may recognize this third type of allowable contradiction, namely, the contradiction of any part of the witness's account of the background and circumstances of a material transaction, which as a matter of human experience he would not have been mistaken about if his story was true." McCormick, Evidence § 47, at 112 (3d ed. 1984). McCormick provides several examples: Stephens v. People, 19 N.Y. 549, 572 (1859) (murder by poisoning with arsenic; defendant's witnesses testified the arsenic was administered to rats in cellar where provisions kept; held proper for state to prove by another witness that no provisions were kept in cellar); Hartsfield v. Carolina Cas. Ins. Co., 451 P.2d 576 (Alaska 1969) (on issue whether insurance cancellation notice was sent to defendant by insurer, defendant denied receipt and also receipt of notices of cancellations of the insurance from two other sources. Evidence of the mailing by the two latter sources was held not collateral). Division (C)(2) of this rule encompasses this category. The phrase "not in conflict with these rules" is intended to ensure that this provision is not used to circumvent the prohibition on the admissibility of extrinsic evidence of specific acts found in Evid.R. 608(B); Evid.R. 608(B) controls.
In the impeachment context, extrinsic evidence means evidence introduced through the testimony of other witnesses. See 1 McCormick, Evidence § 36, at 118 (4th ed. 1992) ("Extrinsic evidence, that is, the production of attacking witnesses . . . is sharply narrowed for obvious reasons of economy of time and attention."). Accordingly, documentary evidence offered through the witness being impeached is not extrinsic evidence because it typically does not consume much additional time.