Article: Using a Police Report During Trial

JANUARY 2009

Using a Police Report During Trial

Shawn P. Hooks

By Shawn P. Hooks, Vice-Chair of the Dayton Bar Association's Criminal Law & Its Enforcement Committee, Published in the Dayton Bar Briefs, January 2009 Edition.

In past editions, the Criminal Law & Its Enforcement Committee has discussed several big topics; including articles about mens rea, reciprocal discovery, issues involving child pornography, and a multi-part discussion on speedy trial. In an effort to mix things up I thought I would write about something a bit smaller in scope. When discussing common problems that the bench sees, several members of this committee, including several judges, have stated that a common complaint is the misuse of a police report during trial. Judges from the Common Pleas Bench and from the Court of Appeals have stressed that they consistently see criminal law practitioners attempting to use a police report improperly during a trial. This topic even came up at this year's Bench Bar Conference in the breakout session. Hopefully this article is useful in setting forth the proper method of using a police report for prior inconsistent statements.

There are courts that do not have "open discovery" outside of Montgomery County, and obtaining a police report may pose a challenge. The State is only required, in such instances, to disclose police reports and other witness statements after the witness has taken the stand and testified on direct examination.¹ The rule only mandates that the court conduct an in camera inspection of the prior statement to determine if there are any inconsistencies between the testimony and the statement upon motion of one of the parties.² It is possible to obtain these records under a public records request, but this request must be made separately from a normal demand for discovery.³

Assuming you are in Montgomery County, or one of the growing counties that has an open discovery rule, and you were able to obtain a copy of the police report there are still very specific rules you must abide by in order to use it at trial. Use of police reports are governed by the Ohio Rules of Evidence, specifically the hearsay rules and Rule 613. Rule 613 deals with prior inconsistent statements, and using extrinsic evidence of prior inconsistent statements.⁴ In order to use extrinsic evidence for impeachment purposes you must lay a proper foundation, and the evidence must be a fact of consequence or otherwise admissible.⁵

If the witness testifies inconsistently from what he or she had previously stated to the officer there is a proper foundation for impeachment that must be followed. There is a four-step foundation that must be laid for impeaching the witness: present the prior statement to the witness, ask the witness whether he or she made that statement, give the witness an opportunity to admit, deny or explain making the statement, and give opposing counsel an opportunity to interrogate the witness about the inconsistent statement.⁶

What this means is that if the State's witness, other than the officer who issued the report, testifies inconsistently with what appears in the police report the proper method of impeachment is a multi-step process. First, you should present the statement that was in the police report. You should not use the police report when doing this, however, as that is still not permissible, but rather read the statement that he or she allegedly made. Next, ask the witness whether he or she made that statement. Give the witness an opportunity to admit, deny or explain it. Move on. Opposing counsel will have an opportunity to ask the witness about it on re-direct if he or she chooses to do so.

If the witness is the officer who issued the report you can use the report to demonstrate the inconsistent statement by laying the foundation described above. If the witness was not the officer and he or she denies making the statement you need to call the police officer that issued the report. Simply ask the officer whether the other witness made the prior inconsistent statements that he or she has denied. If the officer cannot remember you can use the report to refresh his or her recollection. Likewise, if he or she denies that the individual made those statements you can use the report to impeach using a prior inconsistent statement. It is important that you call the officer after the witness has denied making the statement. You must lay the foundation before being able to admit these prior inconsistent statements for impeachment purposes.⁷ Doing so avoids the hearsay rule because the statements are not being used to prove the truth of the matter, but are being used for impeachment purposes.⁸

Next time you are in court and facing a situation where you need the police report for impeaching a witness do it the right way. This will save you some embarrassment from a Prosecutor objecting, or from a judge telling you that you cannot use the report. Rather than fumble for the correct way you now know the way to use a prior statement against a witness effectively. If they deny making the statement, imagine how much more powerful it will be when a jury later hears from an officer who tells them that the witness did make the statement, and that he or she lied to the jury on the stand.

Footnotes

¹ Crim. R. 16(C)(1)(d); State v. Simmons (12^th Dist. 1993), 87 Ohio App.3d 290, 293, 622 N.E.2d 22; State v. Wilson (8^th Dist. 1985), 23 Ohio App.3d 111, 114, 491 N.E.2d 715.

² Id.

³ R.C. 149.43; State v. Thompson (9th DIst. 1993), 87 Ohio App.3d 570, 574-575, 622 N.E.2d 735.

⁴ Evid. R. 613

⁵ Evid. R. 613(B)

⁶ State v. Theuring (1^st Dist. 1988), 46 Ohio App.3d 152, 155, 546 N.E.2d 436

⁷ State v. Barber (2^nd Dist. 2002), 2002-Ohio-7100, Montgomery App. No. 18784

⁸ Evid. R. 801

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