What’s Your Motive: Kansas Court of Appeals Extends Relevant Impeachment Evidence to a Witness’s Contemplated Civil Action Against a Criminal Defendant

State v. O’Brien, No. 124,524, 2024 WL 62815 (Kan. Ct. App. Jan. 5, 2024).

Gabby Phillips, Staff Editor

Issue: Is a witness’s contemplation of filing a lawsuit against the defendant relevant impeachment evidence that a defendant may explore on cross-examination?

Answer: Yes. A witness’s contemplation of filing a lawsuit is relevant to show financial motive and bias, which a defendant may explore on cross-examination during a criminal trial.

Facts: The State charged Shawn P. O’Brien with three counts of aggravated indecent liberties with a child and five counts of sexual battery. At trial, O’Brien’s defense counsel cross-examined the State’s two witnesses who were the alleged victims of sexual battery, E.R. and A.D. Defense counsel asked whether either witness was contemplating filing a personal lawsuit against O’Brien. Counsel believed that the introduction of such evidence could prove a financial motive behind the witnesses’ sexual-battery accusations. Both times, the State objected on relevance grounds, and the trial court sustained the State’s objections. The jury found O’Brien guilty as charged.

Discussion: The Kansas Court of Appeals reviewed the district court’s decision to exclude E.R. and A.D.’s testimony for abuse of discretion. It held that the district court erred because the witnesses’ testimony was “critically important” to the prosecution’s case and the overall outcome of the charges.

In State v. Thomas, the Kansas Supreme Court recognized that an ongoing civil lawsuit involving the defendant and affecting the State’s witness’s financial interest is relevant impeachment evidence that defense counsel may explore on cross-examination. Here, the Kansas Court of Appeals extended Thomas’s reasoning to the impeachment of a witness who has contemplated filing a civil claim for damages against a defendant.

The appellate court reasoned that in the sexual battery charges against O’Brien, E.R. and A.D. “were each the sole victim and sole prosecution witness supporting their respective cases. There was no corroborating . . . evidence nor any third-party eyewitness testimony supporting either victim’s allegations.” Therefore, the credibility of E.R. and A.D. was uniquely critical to the case.

Because O’Brien’s defense counsel had an email from an attorney “from which counsel could infer the witness had contacted the attorney about filing a civil suit,” counsel had a good-faith basis for the line of questioning. Therefore, the court held that the witnesses’ consideration of personal suit was relevant evidence, which O’Brien should have been able to present to the jury. The court found that the district court’s decision amounted to more than harmless error, reversed the two sexual battery charges, and remanded for a new trial.

Key Authorities: U.S. Const. amend. VI; Kan. Const. Bill of Rights, § 10; Davis v. Alaska, 415 U.S. 308, 316–17 (1974); Kan. Stat. Ann. § 60-407(f) (2023); Kan. Stat. Ann. § 60-420 (2023); Kan. Stat. Ann. § 60-401(b) (2023); State v. Stafford, 290 P.3d 562, 578 (Kan. 2012); State v. Thomas, 415 P.3d 430, 436–37 (Kan. 2018).