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Disciplinary record of victim may not be used to attack her credibility

A Washington State court, in a July 16 decision, rejected an attempt by a man convicted of rape to use his victim’s professional disciplinary record to attack her credibility. The court ruled that, because the victim had not contested her disciplinary case, the revocation was not relevant to her truthfulness (State v. Witthauer).

The case concerns Ronald Witthauer, a Washington man convicted of drugging and raping his niece, a former licensed pharmacy technician. During his criminal trial, Witthauer attempted to attack his victim’s credibility by introducing evidence of the revocation of her license by the Oregon Board of Pharmacy.

The board had initiated an investigation against the victim after receiving an allegation that she had used patients’ prescriptions to obtain oxycodone for her own use, and when the licensee failed to respond, the board issued a default order revoking her license.

Under Oregon evidentiary rules, a party may raise questions about a witness’s credibility by inquiring about past conduct where it is relevant to the issues of the case.

Because it determined there was some probative value in the question of whether the victim illegally used her patient’s prescriptions, the trial court permitted Witthauer to ask her whether she had diverted oxycodone for her own use, but it would not allow follow-up questions or inquiries or external evidence regarding her license revocation.

In denying Witthauer’s attempt to introduce the revocation, the court noted that because the victim simply defaulted and had not contested the charged, the revocation lacked information about the substance of the allegations and was not probative of her credibility.

After the jury convicted Witthauer of rape and other charges, and the court sentenced him to 144 months to life in prison, he appealed. He argued, among other things, that the court had violated his rights by limiting his cross-examination of his niece regarding her license revocation.

The Court of Appeals agreed with the trial court’s analysis of the issue. “Testimony or evidence that actually demonstrated that [the victim] committed dishonest acts would be relevant to her truthfulness . . . but the Board’s default order shows only that she was accused of dishonesty and did not contest the resulting disciplinary proceeding,” wrote Judge Rebecca Glasgow.

“Such evidence is not relevant. Nor would it be reliably probative of whether she actually committed the acts she was accused of because parties default for reasons other than guilt.”

Having rejected Witthauer’s arguments about the license revocation, and several other claims not related to professional licensure, the court upheld his conviction.