Ohio Evid.R. 613

History

Effective Date: July 1, 1980 Amended: July 1, 1998; July 1, 2012 Staff Note (July 1, 1998 Amendment) Rule 613 Impeachment by Self-Contradiction The amendments codify aspects of the Ohio common law of impeachment concerning prior inconsistent statements and conduct. The title of the rule was changed from “Prior Statements of Witness” to “Impeachment by Self-Contradiction” to more accurately reflect the content of the rule, which deals with prior inconsistent conduct as well as prior inconsistent statements. Rule 613(A) Examining witness concerning prior statement Masculine references were made gender-neutral. There was no substantive amendment to this division. Rule 613(B) Extrinsic evidence of prior inconsistent statement of witness As adopted in 1980, Rule 613 did not fully specify the circumstances under which extrinsic evidence of a prior inconsistent statement is admissible. Division (B)(1) sets forth the foundational requirement for the admissibility of extrinsic evidence of prior inconsistent statements. There is no substantive change from the 1980 version of the rule. The introductory clause limits the rule to impeachment. Thus, statements that are admissible substantively, such as party admissions or excited utterances, are not governed by this rule, even though they may also have an impeaching effect. Division (B)(2) sets forth three instances in which extrinsic evidence of a prior inconsistent statement is admissible. Division (B)(2)(a) permits extrinsic evidence if the subject matter of the prior statement is a consequential fact under the substantive law. See Evid.R. 401. Extrinsic evidence is also admitted if the statement encompasses another method of impeachment that permits the introduction of extrinsic evidence, i.e., bias under Evid.R. 616(A), or the common law. These circumstances track those of impeachment by evidence of specific contradiction as provided in Rule 616(C). See Staff Note, Evid.R. 616(C) (1998). Rule 613(C) Prior inconsistent conduct The 1998 amendment added division (C) to this rule. As adopted in 1980, Rule 613 did not provide for impeachment by evidence of prior inconsistent conduct. See Advisory Committee's Note, Fed. Evid.R. 613 ("Under principles of expression unius the rule does not apply to impeachment by evidence of prior inconsistent conduct.''). Because no rule prohibits such impeachment, this type of evidence is admissible under Evid.R. 102 if relevant. See 1 McCormick, Evidence § 34, at 113 n. 5 (4th ed. 1992) ("Conduct. . . evincing a belief inconsistent with the facts asserted on the stand is usable on the same principle."). In a pre-Rules case, the Ohio Supreme Court wrote: "Conduct inconsistent with the testimony of a witness, may be shown as well as former statements thus inconsistent." Dilcher v. State (1883), 39 Ohio St. 130, 136 (1883). Accord Westinghouse Electric Corp v. Dolly Madison Leasing & Furniture Corp. (1975), 42 Ohio St.2d 122, 132, 326 N.E.2d 651 ("inconsistency in behavior" admissible for impeachment). In Westinghouse Electric Corp, the Court imposed the same foundational requirements for impeachment by prior inconsistent conduct as were required for impeachment by prior inconsistent statements: "an adequate foundation for admission of the film was laid during cross-examination. . . and the witness was allowed to explain the apparent inconsistency upon redirect." 42 Ohio St.2d at 132. This division applies only to the impeachment of a witness, including a party who testifies. It does not, however, apply to a party's inconsistent conduct that may be introduced on the merits; admissions by the conduct of a party (sometimes known as "implied admissions") may be admissible substantively and are not restricted by this rule. See 1 Giannelli & Snyder, Baldwin's Ohio Practice Evidence § 401.8-.10 (1996) (adverse inferences: spoliation, admissions by conduct, failure to produce evidence or call witnesses).