Franklin County Criminal Law Casebook
Reproduced with permission from
David L. Strait and the Franklin County Public Defender Office
Separation of Witnesses;
Competency to be a Witness; Privilege;
Fifth Amendment; Cross Examination;
Expert Witnesses and Opinion Testimony.
R.C. 2945.47 -- Subpoena for testimony of
State v. Mays, 119
Ohio St. 3d 406,
2008-Ohio-4539 -- A codefendant‘s plea allocution is not admissible as a
State v. Chapman, 190
Ohio App. 3d 528,
2010-Ohio-5924, ¶19-21 – At the first trial a codefendant
testified the prosecutor offered to reduce his sentence from 51
to 13 years if his testimony secured a conviction. The 9th
District reversed as this amounted to an invitation to perjury.
Codefendant testified again at the retrial. This time a copy of
his plea agreement was admitted, showing it did not make
benefits contingent on conviction. Assignment of error
overruled. Earlier case was State v. Chapman, 9th Dist.
State v. Arnold, 189 Ohio App. 3d 507,
2010-Ohio-5379 – Defendant’s infant died after two minutes
in a microwave. State’s evidence was largely circumstantial.
Defense was that the defendant was too intoxicated to have
committed the crime. A jailhouse snitch claimed the defendant
admitted putting her child in the microwave. The first trial
ended in a mistrial when the defense presented newly discovered
evidence that a young nephew had admitted placing the infant in
the microwave and turning it on. The snitch didn’t testify at
the second trial, but her prior testimony was played. (1) The
snitch resurfaced and recanted. No abuse of discretion found in
denying a motion for a new trial. (2) Neither party called the
nephew who made the admission or those that heard it. Nor would
the judge call the nephew as a court’s witness. Following
intricate discussion of what might have happened had either
party called the nephew, Chambers v. Mississippi,
voucher rules, and use being limited to impeachment, no error is
found. (3) Discovery tactics gave the defense only a limited
opportunity to interview the snitch before the first trial. This
amounted to a denial of the right to “prior confrontation”
required by Crawford v. Washington. (4) Court erred by
not allowing testimony of snitch’s subsequent cellmate to
impeach her testimony. Though the snitch had made similar
statements to a detective, statements to the cellmate were not
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
v. Irwin, 184 Ohio App. 3d 764,
2009-Ohio-5271, ¶74-91 – There is a distinction between
hostile witnesses and adverse witnesses. A “hostile witness” is
one who surprises the party calling him by turning against him
while testifying. An “adverse witness” may be a party or a
person whose interest is aligned with a party. At a hearing on a
motion for a new trial both the individual claimed to be the
actual offender and the chief investigator were adverse
witnesses. Defense counsel was entitled to use leading
questions, though to the extent he may have been limited the
error was harmless.
State v. Phelps, 192 Ohio App. 3d 84,
2011-Ohio-706 -- In 1999 defendant was granted leave to file
a motion for a new trial based on newly discovered evidence,
specifically that a state’s witness had been hypnotized.
Applying State v. Johnston (1988), 39 Ohio St. 3d 48,
court concludes the witness did not testify under hypnosis and
her testimony was not hypnotically enhanced, though thee was
little or no record of her hypnosis. Court further concludes
that there was no Brady violation because a “memorializiation”
would not have established guilt or innocence. It would only
have gone to admissibility.
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,
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
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,
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.
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.
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.
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.
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,
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.
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
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 , 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
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
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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