Case Summaries: Criminal - Recanting Complainant
Defendant Not Denied Fair Trial Due To Testimony From Previously Recanting Victim
A domestic violence victim had recanted her allegations against defendant before the preliminary hearing in defendants domestic violence criminal case. After the victim was convicted of filing a false report and spent 30 days in jail, she later testified at trial that defendant had abused her. Knowing use by the prosecutor of false or perjured testimony constitutes a denial of due process if there is any likelihood that the false testimony could have affected the judgment of the jury. However, in light of defendants failure to object to the victims direct testimony on this issue, defense counsels aggressive cross-examination of the victim at trial, and the existence of collaborating testimony from a third-party witness, the court of appeals could not find any error of such manifest injustice to warrant a reversal. State v. Manzell, 2007-Ohio-4076 (5th App. Dist., Stark, 8/6/07).
Keywords: "victimless prosecution" credibility
DV Victim ordered To Testify Against Husband Despite Invoking Spousal Privilege and Fifth Amendment
The court of appeals affirmed defendants conviction of domestic violence and held that the trial court acted within its discretion in compelling the alleged victim to testify after it granted her immunity from prosecution for her culpability in criminal activities. Further, the spousal privilege was not applicable to the victims testimony because of the exception to the spousal support privilege in Evidence Rule 601(B)(1) when the crime charged has been committed against the testifying spouse. State v. Smith, 2003-Ohio-5461 (3rd App. Dist., Seneca, 10/14/03).
Keywords: backlash "victimless prosecution"
DV Conviction Reversed and New Trial ordered:
The charges arose from an incident where defendant assaulted his mother. Defendant argued that his conviction was against the manifest weight of the evidence because his mother recanted her story at trial. The court of appeals stated that a reviewing court must examine the entire record, weigh the evidence and all reasonable inferences, consider the credibility of the witnesses, and determine whether in resolving conflicts in the evidence, the jury clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered. The weight of the evidence and the credibility of the witnesses were primarily for the trier of fact to access. The trial court had a tape of the call from defendant's daughter stating that her dad was assaulting her grandmother, the victim's written statements from the night she stated she was assaulted by defendant, photographs of the victim's injuries, and testimony of the police. The trier of fact did lose its way in convicting defendant. State v. Johnson, 2003 Ohio 1699; 2003 Ohio App. LEXIS 1601 (Stark, 5th App. Dist., 3/31/2003).
Keywords: insufficient evidence, corroboration, recantation, recanting victim
Prior Inconsistent Statement
"Out-of-court prior inconsistent statement by a defendant's wife on defendant's abuse of her had sufficient reliability to be admitted for both impeachment and substantive purposes" when wife changed her story at trial. State of Connecticut v. Anthony J. Borrelli, 629 A.2d 1105, 1109 (Conn. 1993).
Keywords: evidence, hearsay, noncooperation, noncooperative, uncooperative
Conviction on domestic violence charges overturned where complainant initially identified defendant as her attacker to arresting officer, then testified at trial that her injuries were result of altercation with another woman. State v. Attaway (Hamilton 1996), 111 Ohio App.3d 488.
Recantation Properly Discounted
The trial court properly afforded little weight to wife's in-trial recantation of written statement on night of crime, where independent evidence was sufficient to establish crime of domestic violence. Circumstantial evidence possesses the same probative value as direct evidence. Cleveland Hts. v. Brewer (Cuyahoga 1996), 109 Ohio App.3d 838. Accord: State v. Salamh, No. C-950329 (Hamilton 12/22/95).
Keywords: recanting, noncooperation, noncooperative, uncooperative
Domestic violence conviction overturned where appellate court found victim was coerced by prosecutor into testifying against defendant. State v. Asher (Hamilton 1996), 112 Ohio App.3d 646.