Franklin County Criminal Law Casebook
Reproduced with permission from
Allen V. Adair and the Franklin County Public Defender Office

WITNESSES (ME137)

Also see Separation of Witnesses; Competency to be a Witness; Privilege; Fifth Amendment; Cross Examination; Impeachment; Confrontation; Evidence, Rules of; Expert Witnesses and Opinion Testimony.

R.C. 2945.47 -- Subpoena for testimony of convict; custody.

State v. Mays, 119 Ohio St. 3d 406, 2008-Ohio-4539 -- A codefendant‘s plea allocution is not admissible as a business record.

State v. Naugle, 182 Ohio App. 3d 593, 2009-Ohio-3268 – At the bench trial of a felony obstructing justice charge the defendant wanted to call two juvenile girls who also had been charged, but not arraigned. They were not represented by counsel, but appeared at the courthouse. The court did not allow her to do so and refused to allow a proffer. The appellate court brushes aside claimed denial of compulsory process and due process as to one girl as invited error, because appellant said she did not want her daughter to testify. As to the second girl, the court, despite the lack of a proffer, finds her testimony could not have changed the outcome. Dissent finds the court should have allowed a continuance to sort out representation issue.

State v. Fisher, 99 Ohio St. 3d 127, 2003-Ohio-2761 -- Syllabus: "The practice of allowing jurors to question witnesses is a matter within the discretion of the trial court." Court declines to find juror questioning is structural error in that it violates the right to an impartial jury. Nor is it nonconstitutional error. The court endorses the procedural safeguards of: (1) Submission of questions in writing. (2) Jurors are not to discuss questions with other jurors before they are read to a witness. (3) Counsel must have an opportunity to object at sidebar. (4) Jurors are to be instructed not to draw adverse inferences from refusal to submit a question. (5) Counsel may ask follow up questions. Followed: State v. McCarty, 154 Ohio App. 3d 737, 2003-Ohio-5199. See proposed Rule 24(J).

State v. Huff (2001), 145 Ohio App. 3d 555, 561 -- "The opinion of a witness as to whether another witness is being truthful is inadmissible...The fact that the vouching witnesses were police officers caused even more of a problem."

State v. Norman (1999), 137 Ohio App. 3d 184, 198 -- "While it is error for unsworn testimony to be admitted as evidence, such error is waived by failing to bring it to the court's attention." For other cases on the oath requirement see Gibraltar Mausoleum Corp. v. Cincinnati (1981), 1 Ohio App. 3d 107, 111; Gibraltar Mausoleum Corp. v. Cincinnati (1995), 106 Ohio App. 3d 80.

In re Cumberlander (March 20, 2001), Franklin Co. App. Nos. 00AP-987, 988, 989, unreported -- The casual admonition "consider yourself sworn" undermines impressing upon the witness the solemnity of the event, the obligation to testify truthfully, and the consequences of testifying falsely.

State v. Adkins (2001), 144 Ohio App. 3d 633, 644-645 -- Court was not obligated to directly address the defendant and inquire concerning purported disagreement with counsel as to whether he would testify. From the judge's responses to the defendant's outbursts, it is concluded he was aware of his right to testify. Nor was the defendant rendered ineffective assistance of counsel by this difference of opinion. But see State v. Edwards (1997), 119 Ohio App. 3d 106, which indicates that the decision whether or not to testify is a fundamental matter where counsel must defer to the client's decision.

State v. Sutton (2001), 145 Ohio App. 3d 408 -- No abuse of discretion found in sustaining state's motion in limine regarding cocaine detected during autopsy of victim. There was no indication cocaine use contributed to death. Potential prejudice outweighed whatever remote relevance there may have been since evidence might cause some jurors to devalue the victim's life.

State v. Allison (November 16, 2000), Franklin Co. App. No. 99AP-1375, unreported -- Witnesses testified bare-chested robber had no tatoos. Court refused to allow defendant to display his tattoos. Reversed. Also see State v. Franklin, 97 Ohio St. 3d 1, 2002-Ohio-5304, ¶ 26. Compare State v. Huff (2001), 145 Ohio App. 3d 555, 565 where ordering defendant to display his tattoo leads to reversal. State's only apparent reason was to suggest gang membership, which was irrelevant.

State v. Coley, Lucas App. No. L-02-1117, 2004-Ohio-2776 -- Directing the defendant to hold a gun in his hand was non-testimonial. Probative value was extremely low, but error was harmless in view of the strength of the evidence.

State v. Chavis, Franklin App. Nos. 01AP-1456, 01AP-1466, 2003-Ohio-512 -- Evidence of gang affiliation is deemed irrelevant. Evid. R. 404(B) claim by the state fails since the record contained neither general evidence that gang members are extremely loyal or allied to one another, nor specific evidence that the motive or common purpose for the murders in question was gang loyalty or alliance.

State v. Wolderfael, Franklin App. No. 02AP-1148, 2003-Ohio-3817 -- Officer's statement that the informant used to complete an underage liquor purchase was unavailable because he was attending college in West Virginia was insufficient to establish unavailability for purposes of the Confrontation Clause and Evid. R. 804. Testimony was required as to efforts to secure the witness, such as a request he attend. Confidential informant subpoenas issued to the officer were not sufficient.

State v. Wright, Franklin App. No. 03AP-470, 2004-Ohio-677 -- R.C. 2331.12 prohibiting arrests in any court of justice during the sitting of the court and R.C. 2311.11 granting witnesses privilege from arrest on the way to and from court, relate to civil arrests, not arrests for crimes. Citing Akron v. Mingo (1959), 169 Ohio St. 511, syllabus.

State v. Adkins, Lucas App. No. L-02-1190, 2003-Ohio-7250, ¶ 59 -- When the question is not objectionable but the non responsive answer is, the party challenging admissibility must make a motion to strike to preserve the issue for appeal.

State v. Laveck, Lake App. Nos. 2003-L-189, 2003-L-122, 2004-Ohio-7218 -- Excessive use of leading questions leads to reversal.

State v. Zeh (1987), 31 Ohio St. 3d 99 -- Paragraph one of the syllabus: "Generally, a prospective witness for the state has the right to refuse an extra-judicial, pre-trial interview, deposition, or examination by an agent of the defendant." (Actual objective was a mental examination. Opinion repeats general rule that prosecutor may not obstruct access to the witness.)

Kines v. Butterworth (1st Cir. 1981), 669 F. 2d 6 -- While potential witnesses are not required to talk to either the defense or the prosecution before trial, if they do not wish to do so, absent clear and compelling reasons, it is a denial of due process for the prosecution to direct witnesses not to speak to the defense.

State v. Brown (1996), 112 Ohio App. 3d 583, 596 -- A witness has the right to choose not to be interviewed by the defense prior to trial. The prosecutor does not have a duty to make witnesses available for defense interviews, but does have a duty not to obstruct access to witnesses.

State v. Johnston (1988), 39 Ohio St. 3d 48 -- Paragraphs 1-3 of the syllabus: "(1) Testimony supplied by a witness under hypnosis is inadmissible per se. (2) Testimony supplied by a witness regarding events recalled and related prior to and independent of hypnosis is admissible if the trial court determines that the proposed testimony is substantially in conformance with the pre-hypnosis memory of the witness. (State v. Maurer [1984], 15 Ohio St. 3d 239..., approved and followed.) (3) Testimony supplied by a witness whose memory has been refreshed by hypnosis prior to trial is admissible only if the trial court determines that, under the totality of the circumstances, the proposed testimony is sufficiently reliable to merit admission." At p. 55 court sets forth additional guidelines for admissibility, generally requiring that the hypnotic session be conducted by a licensed psychiatrist or psychologist trained in hypnosis, independent of the parties, that a record be made as to what the subject knew beforehand and what additional information was made known to the hypnotist, and that all contact between the subject and the hypnotist be recorded, preferably on videotape. Also see State v. Weston (1984), 16 Ohio App. 3d 279; Annotation, 92 A.L.R. 3d 442.

State v. Cook (1992), 65 Ohio St. 3d 516, 520 -- When a witness has been hypnotized, but the hypnosis uncovers noting new of significance, and the witness testifies only as to matters recalled before hypnosis, the hearing on reliability of hypnotically enhanced testimony called for in State v. Johnson (1998), 39 Ohio St. 3d 48 is not required. (Would seem a hearing would still be required to determine what was known before hypnosis.)

Rock v. Arkansas (1987), 483 U.S. 44 -- Because defendants have a right to testify on their own behalf, guaranteed by the 14th, 6th and 5th Amendments, a state may not adopt a per se rule excluding all hypnotically refreshed memory infringing upon this right.

State v. Wernet (1996), 108 Ohio App. 3d 737 -- An arson suspect confessed, but later recanted, claiming he had confessed because he was tired and wanted to end the interrogation. When the defendant was tried for the same arson, the other suspect's confession was introduced after the first suspect exercised his Fifth Amendment privilege and became unavailable as a witness. Held that the defense should have been allowed to introduce evidence that the first suspect had been told he failed a polygraph, since that served to refute his claim that he confessed only because he was tired. What the suspect had been told was relevant, not the actual results of the test.

State v. Miller (1997), 122 Ohio App. 3d 111 -- Trial court erroneously refused to allow the defendant to reopen his case when a subpoenaed witness appeared at the courthouse after the jury had been instructed, but before deliberations had begun. Though the witness indicated she would exercise her Fifth Amendment privilege to any question other than her name, the trial had evolved in such a manner that her nonappearance created strong inferences against the defense.

State v. Daniels (1993), 92 Ohio App. 3d 473 -- (1) Names and addresses of 24 prospective prosecution witnesses were properly withheld in an aggravated murder prosecution, based upon the execution style slaying of an arson victim who was a witness against members of a gang said to be involved in drug distribution. Hearing was properly conducted in front of a judge other than the trial judge. The defense was not prejudiced since the witnesses ultimately were present at trial and subject to cross-examination. No confrontation violation found. (2) At page 488 the court finds no impropriety in calling an assistant prosecutor in the Juvenile Division to rebut claims made by the defense. The witness was not actively involved in the prosecution and provided only general background information.

State v. Castle (1994), 92 Ohio App. 3d 732 -- Criminal contempt convictions upheld where witnesses failed to appear in response to subpoenas because they were on vacation. Prosecutor had been contacted but a continuance had not been arranged. Case did not go to trial.

State v. Kirk (1995), 72 Ohio St. 3d 564 -- The right to compulsory process is not denied when the court prevents a witness who intends to exercise his Fifth Amendment privilege from taking the stand, if that witness will exercise the privilege and offer no testimony. Columbus v. Cooper (1990), 49 Ohio St. 3d 42, limited. The defendant is entitled to a an instruction that the jury is to draw no inference from the absence of the witness because the witness was not available to either side. Also see State v. Branham (1995), 104 Ohio App. 3d 355, 360-361.

State v. Malott (1992), 79 Ohio App. 3d 393 -- Officer testified at suppression hearing in an OMVI case. Court denied the prosecutor's request to speak privately with the witness before proceeding with cross-examination. Judge held not to have abused his discretion by not permitting consultation. Prosecutor should have had his case prepared. Compare Geders v. United States (1976), 425 U.S. 80 -- Denial of the right to counsel to forbid consultation between defendant and counsel during overnight recess between direct and cross examination.

United States v. Johnson (8th Cir. 1981), 649 F. 2d 617, 618 -- "Due process is violated when the prosecutor, although not soliciting false evidence from a government witness, allows it to stand uncorrected when it appears. That the false testimony goes only to the credibility of the witness does not weaken this rule." See Ohio Code of Professional Responsibility, DR 7-102(A).

State v. Thomas (1980), 61 Ohio St. 2d 223, 230 -- No impropriety in police officer in a gambling prosecution identifying himself as being assigned to the organized crime squad.

State v. Lee (1983), 9 Ohio App. 3d 282 -- Whether a witness may testify with the aid of a doll lies within the discretion of the trial court.

State v. Donnelly (1984), 17 Ohio Misc. 2d 1 -- State's motion to depose inmates in lieu of calling them to the stand granted where the interests of justice do not require that they be brought to court. Witnesses were said to have a recent record of belligerent, anti-social conduct.

State v. Oliver (1995), 101 Ohio App. 3d 587, 592-593 -- No error in failure to inquire and determine whether defendant knowingly and voluntarily waived his right to testify. Claim tenuous in any event as defendant was a defense attorney on trial for smuggling drugs into a detention facility. Also see State v. Bey (1999), 85 Ohio St. 3d 487, 499.

State v. Allen (1995), 102 Ohio App. 3d 696 -- While it was improper for the judge to thank a witness for "being open and candid," error was cured by instruction jurors not consider any perceived comments by the judge on witness credibility.

State v. Soke (1995), 105 Ohio App. 3d 226, 243 -- No abuse of discretion in refusing to allow a witness to be recalled for questioning on a collateral matter which might have impeached his credibility: "'A witness may not be impeached by evidence that merely contradicts his testimony on a matter that is collateral and not material to any issue in the trial.' Byomin v. Alvis (1959), 169 Ohio St. 395, 398... 'Evid. R. 608(B) provides a well-established rule of law that protects a legitimate state interest in preventing criminal trials from bogging down in matters collateral to the crime for which defendant was charged.' State v. Boggs (1992), 63 Ohio St. 3d 418, 422-423..."

Holtz v. Dick (1884), 42 Ohio St. 23 -- According to paragraph seven of the syllabus, a witness who has been fully examined and cross-examined may be re-examined to explain matters gone into on cross, but he may not be examined on new matter not beyond the scope of cross.

State v. Calhoun (1981), 2 Ohio App. 3d 472, 474 -- Missing witness instruction is not required when informant could have been called as a witness by either party. Also see United States v. Anders (8th Cir. 1979), 602 F. 2d 823; United States v. Montoya (10th Cir. 1982), 676 F. 2d 1099.

Silveous v. Rensch (1969), 20 Ohio St. 2d 1969 -- Missing witness instruction: "A special instruction prior to argument, stating that when it appears a litigant knows of the existence of a material witness, and such witness is within the control of the litigant whose interest would naturally be to produce him, and without satisfactory explanation he fails to do so, the jury may draw an inference that the testimony would not be favorable to him, is error where the jury is not also instructed regarding the facts to be considered in determining what evidence a litigant would naturally produce at trial." (paragraph one of the syllabus).

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