Confrontation

 

Franklin County Criminal Law Casebook

Reproduced with permission from:
David L. Strait and the Franklin County Public Defender Office
 

Last updated 3/3/2015

Witness Issues

Melendez-Diaz v. Massachusetts (2009), 129 S.Ct. 2527 – Certificates of state laboratory analysts were used to identify drugs at trial, over the defendant‘s objection. Applying Crawford, held to be a denial of confrontation. Defense ability to subpoena the analyst is no substitute for the right to confront witnesses, since doing so would be useless if the witness was unavailable or refused to appear.
 
Bullcoming v. New Mexico (2011), 131 S.Ct. 2708 – In a DUI case the defendant’s blood sample was sent to a state lab for testing. The examiner was on unpaid leave for undisclosed reasons and did not testify. Instead the state called one his associates to validate the report, though he had not participated in the testing. Held that the defendant’s confrontation rights were denied. His associate’s testimony would have been admissible only if the actual examiner was unavailable and the defendant had previously been afforded confrontation. Analogy drawn to inclusion of speed measuring device readout in a speeding complaint.
 
State v. Lopez, 186 Ohio App. 3d 328, 2010-Ohio-732 – Technicians who performed the actual testing were unavailable but another forensic scientist testified using results. Melendez-Diaz v. Massachusetts distinguished on the basis that “live” testimony was presented, not just documents. Compare Bullcoming v. New Mexico (2011), 131 S.Ct. 2708.
 
State v. Crager, 116 Ohio St. 3d 369, 2007-Ohio-6840, cert granted, judgment vacated and remanded Crager v. Ohio (2009), 129 S.Ct. 2527, remanded for a new trial by the Ohio Supreme Court on September 9, 2009 – Syllabus: “(1) Records of scientific tests are not ‘testimonial’ under Crawford v. Washington (2004), 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177. (2) A criminal defendant’s constitutional right to confrontation is not violated when a qualified expert DNA analyst testifies at trial in place of the DNA analyst who actually conducted the testing.” DNA test results are a business record. Examiner was on maternity leave. Corresponds to State v. Craig, 110 Ohio St. 3d 306, 2006-Ohio-4571, involving a coroner’s report. Compare Bullcoming v. New Mexico (2011), 131 S.Ct. 2708.
 
State v. Hardin, 193 Ohio App. 3d 666, 2010-Ohio-6304 – Franklin County Coroner testified based on an autopsy report from an autopsy preformed by another. Court of Appeals finds no confrontation violation applying Crawford and State v. Craig, 110 Ohio St. 3d 306, 2006-Ohio-4571. But Craig is again before the Ohio Supreme Court on the same issue, and the U.S. Supreme Court has decided Bullcoming v. New Mexico (201), 131 S.Ct. 2705 finding a confrontation violation in these circumstances.
 
State v. Pasqualone, 121 Ohio St. 3d 186, 2009-Ohio-315 – Counsel failed to file a demand for the testimony of a laboratory analyst, but objected to admission of the report at trial. Counsel may waive the defendant‘s right to confrontation by not demanding a laboratory analyst testify at trial. The requirement of a demand, rather than an affirmative waiver, is adequate to protect the defendant‘s rights. Syllabus: "(1) An attorney may waive a client‘s Sixth Amendment right to confrontation. (2) When the state has complied with its obligations under R.C. 2925.51, a defendant‘s failure to use the procedures of R.C. 2925.51(C) to demand that a laboratory analyst testify constitutes a waiver of the opportunity to cross-examine the analyst at trial and allows the analyst‘s report to be admitted as prima facie evidence of the test results."
 
State v. Johnson, 195 Ohio App. 3d 59, 2011-Ohio-3143 – Fifteen or more young men appeared more than once in the courtroom in an apparent effort to intimidate three already reluctant witnesses in a homicide case. No denial of confrontation found in allowing the use of two way video for their testimony. While there was not a hearing as such, the judge was in the courtroom and all discussions were of record.
 
State v. Gonzales, 151 Ohio App. 3d 160, 2002-Ohio-4937, ¶43-49 -- Codefendant's agreed sentence in exchange for testimony was less than the mandatory sentence for the crime he pled to. Core Sixth Amendment confrontation rights were not violated by refusal to allow questioning to establish this fact. Thus the issue is whether there was an abuse of discretion. While limitation was "technically erroneous," it was not abuse of discretion in view of other questions that were allowed.
 
State v. Williams, Montgomery App. No. 20368, 2005-Ohio-213 -- Admission of excited utterances without proof the declarant is unavailable does not violate the right to confrontation under the Ohio Constitution. Trial court did not rely on the federal Constitution.
 
State v. Evans, 153 Ohio App. 3d 226, 2003-Ohio-3475, ¶ 18-26 -- A defendant in custody has the right to be brought to a deposition, but may waive that right in writing. A defendant not in custody has the right to notice and to be present, but may waive the right to attend by simply not showing up.
 
State v. Wolderufael, 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.
 
Wilkins v. Wilkerson, 157 Ohio App. 3d 209, 2004-Ohio-2530 -- A parolee contesting revocation does not have the same confrontation and due process rights as a trial defendant. Parole revocation hearing was conducted at Lucasville. Parole officer and witnesses were in Akron. Use of teleconferenceing equipment found not to violate confrontation rights as the technology permitted free and unimpeded visual and auditory communication among the hearing officer, witnesses, the parolee and counsel.
 
United States v. Owen (1988), 484 U.S. 554 -- The Confrontation Clause guarantees only the full and fair opportunity for effective cross-examination. That a witness may have suffered a memory loss is not a denial of confrontation.
 
Pointer v. Texas (1965), 380 U.S. 400 -- Defendant's right to confrontation denied when state was allowed to introduce transcript of a witness' preliminary hearing testimony, where the defendant was not represented at that time and did not have a full and complete opportunity to cross-examine.
 
California v. Green (1970), 399 U.S. 149 -- Under California law prior inconsistent statements of a witnesses to a police officer and at a preliminary hearing were properly admitted at trial for the truth of the matter asserted. Because the witness did testify and was subject to cross-examination at trial, the Confrontation Clause was satisfied. In addition, the opportunity to fully cross-examine the witness at the preliminary hearing was not significantly different from a trial for purposes of confrontation.
 
State v. Madison (1980), 64 Ohio St. 2d 322 -- Syllabus: "R.C. 2945.49 permits the admissibility at trial of prior recorded testimony taken at a preliminary hearing upon a showing that, despite a good faith effort to secure the witness' presence at trial, the witness was unavailable, and that the witness' prior recorded testimony bears an 'adequate indicia of reliability.'" Also see: State v. Keairns (1984), 9 Ohio St. 3d 228 -- Unavailability must be proven through testimony unless conceded. State v. Jester (1987), 32 Ohio St. 3d 147, 153-154 -- Witness unavailability was established by refusal to accept immunity in exchange for testimony and citation in contempt for refusal to testify.
 
Davis v. Alaska (1973), 415 U.S. 308 -- A defendant's Sixth Amendment right to confront witnesses against him through cross-examination demonstrating possible bias takes precedence over a state statute protecting juvenile offenders by making juvenile records inadmissible. Rather than seeking to impeach the juvenile's credibility generally, the defendant sought to show that the witness might be a suspect in the offense charged and that he might have a motive to lie because he was worried about his probation status. Also see Olden v. Kentucky (1988), 488 U.S. 227.
 
State v. Williams (1986), 21 Ohio St. 3d 33 -- In a rape prosecution where the alleged victim on direct denied previously having sex with the defendant and that she did not have sex with men because she was gay, it was a denial of the defendant's right of confrontation not to allow testimony contradicting these assertions, notwithstanding the rape shield law and Evid. R. 608(B). Also see Olden v. Kentucky (1988), 109 S. Ct. 480. Compare State v. Tomlinson (1986), 33 Ohio App. 3d 278, 280; State v. Leslie (1984), 14 Ohio App. 3d 343.
 
Delaware v. Van Arsdale (1986), 475 U.S. 673, 680 -- For purposes of appellate review and the determination whether a denial of the right to confrontation warrants reversal: "We think a criminal defendant states a violation of the Confrontation Clause by showing that he was prohibited from engaging in otherwise appropriate cross-examination designed to show a prototypical form of bias on the part of the witness, and thereby 'to expose to the jury facts from which jurors...could appropriately draw inferences relating to the reliability of the witness.'"
 
State v. Browning (1954), 98 Ohio App. 8, 10 -- "The constitutional right of an accused to meet the witnesses face to face includes in its purpose the opportunity and right to cross examine all the state's witnesses, and the widest latitude known to the law is granted in criminal cases, where the life liberty, and property of the accused are exposed to adverse and hostile witnesses."
 
State v. Warren (1995), 106 Ohio App. 3d 753 -- Denial of Sixth Amendment right to confrontation not to permit cross examination of complainant concerning possible bias arising from pending custody action.

Hearsay

Michigan v. Bryant (2011), 131 S.Ct. 1143 – Initial statements to police by shooting victim might have been admissible as dying declarations or excited utterances, but Michigan court did not reach that issue, finding statements were testimonial hearsay under Crawford. Reversed. Statements were made informally in the course of a continuing emergency. But an ongoing emergency does not last until a suspect is in custody. Courts may take into account the actions and statements of both the declarant and officers and may consider the condition of the declarant. Here the primary purpose of the interaction between the declarant and officers was to enable police assistance.
 
Giles v. California (2008), 128 S. Ct. 2678 – State was allowed to use the victim‘s statements to a police officer responding to a domestic violence call at the defendant‘s trial for her murder on the basis of forfeiture by wrongdoing. Crawford was decided while the appeal was pending. Under Crawford exception was allowed to the right to cross-examine witnesses only when such an exception was recognized at the time of the founding. Forfeiture by wrongdoing does not date back that far. Until 1985 no court applied the forfeiture by wrongdoing doctrine except when the defendant‘s conduct was calculated to prevent a witness from testifying.
 
State v. Fry, 125 Ohio St. 3d 163, 2010-Ohio-1017 -- ¶106-109 – Debatable application of the forfeiture by wrongdoing doctrine. Defendant was charged with murdering girlfriend, who was the prosecuting witness in pending domestic violence charges. Her statement to a police officer at the time of the incident may have been “testimonial” for purposes of Crawford but is admissible because, in the court’s view, Giles v. California permits application of the doctrine when the defendant has engaged in conduct designed to prevent the witness from testifying. ¶110-114: Applying the objective witness test, the court concludes statements to a “Developing Options for Violent Emergencies” nurse were made for medical purposes, including identification of the defendant as the perpetrator. ¶115-118: Further statements to a victims assistance advocate also admissible under the forfeiture by wrongdoing doctrine and the court’s reading of Giles.
 
State v. Swann, 119 Ohio St. 3d 552, 2008-Ohio-4837 – Trial court refused to allow testimony by four witnesses that another person had claimed responsibility for the shooting the defendant was charged with. At issue on appeal was whether the corroboration requirement of Evidence Rule 804(B)(3), concerning declarations against penal interest, deprives defendant of the constitutional right to present a complete defense, applying Holmes v. South Carolina (2006), 547 U.S. 319. Syllabus: "The corroboration requirement of Evid.R. 804(B)(3) rationally serves a legitimate interest in the admission of trustworthy evidence, and therefore exclusion of a criminal defendant‘s proffered evidence for lack of corroboration does not deprive a defendant of the right to present a complete defense." Reverses State v. Swann, 171 Ohio App. 3d 304, 2007-Ohio-2010, but remanded for determination whether there was sufficient corroboration for admission of the proffered statements.
 
State v. Kelley, 179 Ohio App. 3d 666, 2008-Ohio-6598, ¶12-13 -- Informant in a drug deal did not testify but a tape of the transaction was played. No Crawford violation found as the informant‘s statements, though testimonial, established context (for the defendant‘s statements?) and were not offered for the truth of the matter asserted.
 
Toledo v. Sailes, 180 Ohio App. 3d 56, 2008-Ohio-6400 – Domestic violence victim‘s statements to an officer were made after the scene had been secured and not in response to questions calculated to meet an ongoing emergency. They were testimonial as the primary purpose was to record her version of past events. Thus they should have been excluded.
 
Crawford v. Washington (2004), 124 S.Ct. 1354 -- Prior testimonial statements of an unavailable witness are admissible only if they were subject to cross-examination. Husband and wife made statements to investigating officers. Marital privilege barred the wife's testimony at trial, but the privilege did not extend to out of court statements. Prosecution got her statement in through a dubious application of the statements against penal interest exception to the hearsay rule, finding through application of Ohio v. Roberts (1980), 448 U.S. 56 that it bore sufficient indica of reliability. The Supreme Court overrules Roberts emphasizing the historic objectives of the Confrontation Clause.
 
Worton v. Bockting (2007), 127 S.Ct. 1173 -- Crawford is not retroactive. While it does announce a new rule of criminal procedure, and would be applicable to cases remaining on direct appeal, it does not apply in cases under collateral review. According to Teague v. Layne a new rule applies retroactively in collateral proceedings only if it amounts to a "watershed" rule implicating the fundamental fairness and accuracy of criminal proceedings. The only example of a watershed rule offered is the right to counsel holding in Gideon v. Wainwright.
 
Davis v. Washington (2006), 126 S.Ct. 2266 -- For purposes of Crawford, responses to a 911 operator's queries during an ongoing emergency are not testimonial. But responses to questions by an officer at the scene to investigate an apparent domestic disturbance were testimonial.
 
State v. Stahl, 111 Ohio St. 3d 186, 2006-Ohio-5482 -- Ohio adopts the "objective witness test" for evaluation of Crawford claims. Syllabus: "(1) For Confrontation Clause purposes, a testimonial statement includes one made 'under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial.' Crawford v. Washington (2004), 541 U.S. 36, 52...followed.) (2) In determining whether a statement is testimonial for Confrontation Clause purposes, courts should focus on the expectation of the declarant at the time of making the statement; the intent of the questioner is relevant only if it could affect a reasonable declarant's expectations." The majority concludes that statements by the victim of an oral rape to a sexual assault nurse examiner were for diagnosis and treatment, notwithstanding indication efforts were primarily directed towards evidence gathering. Three dissenters concur in adoption of the test but conclude the statements to the nurse were testimonial in nature.
 
State v. Siler, 164 Ohio App. 3d 680, 2005-Ohio-6591 -- On remand from the U.S. Supreme Court in light of Crawford, the court of appeals concludes statements of a three year old, questioned by a police officer after his mother's death, were testimonial. The court had previously determined they qualified as excited utterances under Ohio law. Affirmed: State v. Siler, 116 Ohio St. 3d 39, 2007. Syllabus: "(1) To determine whether a child declarant's statement made in the course of police interrogation is testimonial or nontestimonial, courts should apply the primary purpose test: 'Statements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency. They are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution.'(Davis v. Washington (2006)...126 S.Ct. 2266, 2273-2274...followed.) (2) A declarant's age is not determinative of whether a testimonial statement has been made during a police interrogation."
 
State v. Byrd, 160 Ohio App. 3d 538, 2005-Ohio-1902 -- Applying Crawford v. Washington (2004), 124 S.Ct. 1354, alleged domestic violence victim's 911 call was properly admitted as an excited utterance, but her subsequent statement to the police did not, even though some of her statements fell within exceptions to the hearsay rule.
 
State v. Reardon, 168 Ohio App. 3d 386, 2006-Ohio-3984 -- Home invasion victim blurted out that one of the robbers was "that fat fucker Reardon with the lazy eye down at the end of the street" in chaotic circumstances as a foot pursuit of suspects was underway. Held to be non-testimonial under Crawford and properly admitted as an excited utterance.
 
State v. Hill, 160 Ohio App. 3d 324, 2005-Ohio-1501, ¶29 -- Crawford applies retroactively to cases pending on direct appeal: "New rules of criminal procedure that expand the rights of the accused always have retroactive application to criminal cases pending on direct appeal."
 
State v. Crager, 164 Ohio App. 3d 816, 2005-Ohio-6868 -- Noting authority to the contrary, court concludes that the report of a DNA technician, though a business record, is testimonial hearsay within the meaning of Crawford. Technician was on maternity leave. An associate who had reviewed the report testified, but had not observed or supervised it. Homicide conviction reversed.
 
State v. Craig, 110 Ohio St. 3d 306, 2006-Ohio-4571, ¶73-80 -- Deputy coroner who conducted the autopsy retired. Elected coroner testified at trial. There is no unavailability requirement for presentation of expert testimony. Nor need the best witness be called. The autopsy report was properly admitted as a business record. As to Crawford objections to the conclusory portions of the report, and whether or not such are testimonial, Ohio sides with the majority finding confrontation rights are not violated.
 
State v. Goff, Summit App. No. 21320, 2005-Ohio-339 -- On remand from the U.S. Supreme Court following Crawford. Wife's statements to the police were not subject to cross, thus not admissible, though her exercise of the Fifth Amendment privilege made her unavailable as a witness.
 
State v. Harr, 158 Ohio App. 3d 704, 2004-Ohio-5771 -- Trial court erroneously allowed mother to testify as to young daughters account of being molested two weeks earlier. To the extent Ohio courts may have been expanding the admissibility of excited utterances bases on assessment of reliability, Crawford v. Washington (2004), 124 S.Ct. 1354 requires stricter interpretation of Evid. R. 803(2).
 
State v. Sheppard, 164 Ohio App. 372, 2005-Ohio-6065 -- Child rape victim's testimony probably didn't cover the elements, but her statement to a "licensed clinical counsellor" did. The opinion says one of the objectives was to determine the nature and extent of sexual abuse allegations. Stretching Crawford the court concludes the child's statements were nontestimonial, and were made for purposes of diagnosis and treatment. Hung jury the first time the case was tried. LWOP the second time.
 
State v. Lloyd, Montgomery App. No. 20220, 2004-Ohio-5813 -- Crawford v. Washington (2004), 124 S.Ct. 1354, does not apply to the defendant's own statements admissible as those of a party-opponent.
 
State v. Smith, 162 Ohio App. 3d 208, 2005-Ohio-3579 -- Applying Crawford, admission of a taped conversation between the defendant and an informant in furtherance of a drug transaction did not violate the right to confrontation. The informant did not testify. His end of the taped conversation was not admitted for the truth of the matter asserted. It only provided the context for the defendant's statements received as admissions.
 
State v. Jones, Lucas App. No. L-00-1231, 2003-Ohio-219, ¶48-72 -- Officer's repetition of hearsay to the effect defendant was heavily involved in dog fighting went beyond explanation of conduct. Violation of the Confrontation Clause held not to be harmless beyond a reasonable doubt.
 
Ohio v. Roberts (1980), 448 U.S. 56, 65 -- "The Confrontation Clause operates in two separate ways to restrict the range of admissible hearsay. First...the Sixth Amendment creates a rule of necessity. In the usual case (including cases where prior cross-examination has occurred), the prosecution must either produce, or demonstrate the unavailability of, the declarant...The second aspect operates once a witness is shown to be unavailable...(T)he Clause countenances only hearsay marked with such trustworthiness that 'there is no material departure from the reason of the (hearsay) rule.'"
 
State v. Dever (1992), 64 Ohio St. 3d 401 -- Paragraph three of the syllabus: "The admission into evidence of a hearsay statement pursuant to a firmly rooted hearsay exception does not violate a defendant's right of confrontation. (White v. Illinois [1992], 502 U.S. 346.)"
 
White v. Illinois (1992), 502 U.S. 346 -- The Confrontation Clause does not require the production of the declarant at court before hearsay statements may be introduced under the spontaneous declaration or medical examination exceptions to the hearsay rule.
 
State v. Wilkinson (1980), 64 Ohio St. 2d 308 -- Paragraph one of the syllabus: "A defendant's rights to confrontation and cross examination of witnesses apply in the taking of a videotaped deposition to be used against the defendant in a criminal trial." Right is denied when insufficient notice to defense of second and supplemental deposition of witness suffering a fatal illness prevented attendance when deposition was taken. Witness lived more than two months after deposition was taken.
 
State v. Rowe (1993), 92 Ohio App. 3d 652 -- Deposition of elderly witness was admitted in violation of the defendant's right to confrontation, the state having failed to establish that the witness was unavailable within the meaning of Evid. R. 804(A). Affidavit from physician was unsworn and not sufficiently specific as to the nature of the person's ailments, prosecutor had not spoken with the witness during the year since the deposition was taken, and the defense claimed the witness was in fact able to shop and socialize.

Statements by Codefendants and Accomplices

State v. Ricks, 136 Ohio St.3d 356, 2013-Ohio-3712, 995 N.E.2d 1181
 
Ohio Supreme Court reverses an aggravated murder conviction finding that trial court erred in admitting an alleged accomplice’s statements through the testimony of an investigating officer violated a defendant’s right to confront the witnesses against him under the Sixth Amendment to the U.S. Constitution, and Article I, Section 10, of the Ohio Constitution.
 
 
State v. Gonzalez (2000), 138 Ohio App. 3d 853 -- Applying Lilly v. Virginia (1999), 527 U.S. 116 and State v. Mardigal (2000), 87 Ohio St. 3d 378, codefendant's statements were not admissible as there was nothing to rebut the presumption of unreliability. Corroborating evidence is irrelevant under Lilly and Madrigal. Also see State v. Lather, Ottawa App. No. OT-02-024, 2003-Ohio-1866. Compare State v. Carroll, Hamilton App. No. C-020777, 2003-Ohio-5260 where the officer should not have mentioned a codefendant's confession, but the testimony was induced by a question on cross.
 
State v. Issa, 93 Ohio St. 3d 49, 57-61, 2001-Ohio-1290 -- Applying Lilly v. Virginia (1999), 527 U.S. 116 and State v. Mardigal (2000), 87 Ohio St. 3d 378 codefendant's statements to others were admissible as they did not shift blame to the defendant and exposed him as the gunman in a double homicide.
 
State v. Marshall (2000), 136 Ohio App. 3d 742 -- Applying Lilly v. Virginia (1999), 527 U.S. 116 and State v. Mardigal (2000), 87 Ohio St. 3d 378, codefendant's statements were admissible since they met the three conditions for admission of statements against penal interest and there were particularized guarantees of trustworthiness, including that the statement was self-inculpatory, was not made while he was under the influence or pursuant to a deal with the prosecution, and was corroborated by other evidence. Also see State v. Anderson, 154 Ohio App. 3d 789, 2003-Ohio-5439.
 
State v. Adams, Clark App. No. 2003 CA 32, 2004-Ohio-2958 -- Bruton violation claimed where another person was indicted separately based on the facts of a single transaction. (1) No error since a severance is a potential remedy for a Bruton violation. (2) There must be a trial for a Bruton error to occur. Adams pled guilty.
 
Bruton v. United States (1968), 391 U.S. 123 -- Admission of codefendant's confession at a joint trial where the codefendant does not take the stand denies defendant the right to cross-examination secured by the Confrontation Clause of the Sixth Amendment. Also see State v. Moritz (1980), 63 Ohio St. 2d 150.
 
Cruz v. New York (1987), 481 U.S. 186 -- Decision overrules Parker v. Randolph (1979), 442 U.S. 62, where the plurality opinion stated that separate trials may not be required if both defendant have confessed and confessions "interlock" or tend to corroborate each other. Thus, even interlocking confession of nontestifying codefendant is inadmissible at joint trial, even with limiting instructions, unless admissible under some other theory.
 
Lilly v. Virginia (1999), 527 U.S. 116 -- The Confrontation Clause permits admission of statements within firmly rooted exceptions to the hearsay rule, whose conditions over time have proven to remove the temptation to falsehood and enforce adherence to the truth as would an oath. But not all declarations against penal interest qualify. Statements of an accomplice admitting some wrongdoing, but shifting primary blame to others are presumptively unreliable.
 
State v. Madrigal (2000), 87 Ohio St. 3d 378 -- Accomplice made two statements to the police, the first untruthfully, the second minimizing his involvement. When he refused to testify, both statements were read, admitted pursuant to Evid. R. 804(B)(3). Syllabus: "(1) Hearsay statements are deemed sufficiently reliable to allow their admission into evidence without the benefit of cross-examination when the statements (1) fall within a firmly rooted exception to the hearsay rule, or (2) contain adequate indicia of reliability. (Ohio v. Roberts [1980], 448 U.S. 56, 66...followed. (2) An accomplice's confession that inculpates a criminal defendant is not within a firmly rooted exception to the hearsay rule as that concept has been defined by Confrontation Clause jurisprudence. (Lilly v. Virginia [1999]...119 S.Ct. 1857, 1898-1899...followed; State v. Gilliam [1994], 70 Ohio St. 3d 175...to the extent inconsistent herewith, overruled. (3) Out-of-court statements made by an accomplice that incriminate the defendant may be admitted as evidence if the statement satisfies the second prong of the test announced in Ohio v. Roberts, supra."

Child Victims

State v. Arnold, 126 Ohio St. 3d 290, 2010-Ohio-2742 – Syllabus: “(1) Statements made to interviewers at child-advocacy centers that serve primarily a forensic or investigative purpose are testimonial and are inadmissible pursuant to the Confrontation Clause. (2) Statements made to interviewers at child-advocacy centers that are made for medical diagnosis and treatment are nontestimonial and are admissible without offending the Confrontation Clause. Compare In re T.L., 186 Ohio App. 3d 42, 2010-Ohio-402.
 
State v. Eastham (1988), 39 Ohio St. 3d 307 -- Procedure whereby child rape victim was allowed to testify (at a bench trial) in a side room in the presence of the judge, counsel and the court reporter, while the defendant remained in the courtroom watching on a TV monitor and able to communicate by telephone with defense counsel, was a denial of confrontation. Also see Coy v. Iowa (1988), 487 U.S. 1012.
 
State v. Self (1990), 56 Ohio St. 3d 73 -- Paragraph one of the syllabus: "The use, in accord with R.C. 2907.41(A) and (B), of a child sexual abuse victim's videotaped deposition at trial in place of live testimony does not violate a defendant's right of confrontation guaranteed by the Sixth Amendment to the United States Constitution and Section 10, Article I of the Ohio Constitution. (Maryland v. Craig [1990], 497 U.S. ___, 110 S. Ct. 3157, 111 L. Ed. 2d 666, applied and followed; Coy v. Iowa [1988], 487 U.S. 1012, and State v. Eastham [1988], 39 Ohio St. 3d 307, 530 N.E. 2d 409, distinguished." Compare State v. Butts (June 29, 1989), Franklin Co. App. No. 88AP-764, unreported (1989 Opinions 2366).
 
Kentucky v. Stincer (1987), 482 U.S. 730 -- No denial of confrontation when defendant was excluded from hearing to determine competency of child witness. Also see State v. Brown (1988), 48 Ohio App. 3d 286 -- Headnote: "The rights to confrontation and due process of a defendant charged with gross sexual imposition are not violated by his forced absence from an in camera competency examination of the child victim-witness where no substantive testimony was given by that prospective witness." (Counsel was present.)
 
State v. Storch (1993), 66 Ohio St. 3d 280 -- In a case involving a child sex abuse victim and the application of Ohio Evid. R. 807, court holds that the right to confrontation is broader under the Ohio Constitution than the U.S. Supreme Court has held it to be under the federal Constitution. Compare Idaho v. Wright (1990), 497 U.S. 805, 110 S. Ct. 3139; White v. Illinois (1992), 502 U.S.346, 112 S. Ct. 736. Also see State v. McWhite (1993), 91 Ohio App. 3d 508.
 
State v. Ulis (1993), 91 Ohio App. 3d 656, 667 -- When competency is at issue, determination must be made based on personal observation of the child, and may not be based on prior finding by a different judge, or assessment by others.
 
In re Howard (1997), 119 Ohio App. 3d 33 -- Child victims were allowed to testify via closed circuit TV. Court erred by not making findings called for by R.C. 2151.3511, though deemed harmless under the circumstances.

Other Issues

State v. Maxwell, 139 Ohio St.3d 12, 2014-Ohio-1019, 9 N.E.3d 930-- An autopsy report that is neither prepared for the primary purpose of accusing a targeted individual nor prepared for the primary purpose of providing evidence in a criminal trial is nontestimonial, and its admission into evidence at trial under Evid.R. 803(6) as a business record does not violate a defendant’s Sixth Amendment confrontation rights.
 
 
State v. Rivas, 121 Ohio St. 3d 469, 2009-Ohio-1354 – Syllabus: "Pursuant to a Crim. R. 16(B)(1)(c) discovery request, when a prosecutor has provided a written transcript that purports to accurately reflect data stored on a computer hard drive, a court may not order an examination of the computer hard drive unless the defense makes a prima facie showing that the state has provided false, incomplete, adulterated, or spoliated evidence." Reversed State v. Rivas, 172 Ohio App. 3d 473, 2007-Ohio-3593. Defense wanted a mirror image of a hard drive also containing information pertaining to other investigations. Claim seems to have been that rebooting computer might affect files.
 
Danforth v. Minnesota (2008), 128 S.Ct. 1029 – The Teague v. Lane, 489 U.S. 288, rule on retroactivity applies only in federal habeas. State courts may allow broader remedies. At issue was a Crawford claim raised in state postconviction after Crawford had been decided.
 
Holmes v. North Carolina, 547 U.S. ___, 126 S.Ct. 1727 -- South Carolina held defendant could not introduce evidence another might be guilty based on the strength of the state's forensic evidence. A state rule of evidence excluding defense evidence based on the strength of the state's case is arbitrary and improperly denies the defendant's constitutional right to have a meaningful opportunity to present a complete defense. This right is guaranteed either directly under the Due Process Clause of the Fourteenth Amendment or the Confrontation and Compulsory Process Clauses of the Sixth. Compare State v. Craig, 110 Ohio St. 3d 306, 2006-Ohio-4571, ¶63-72 involving Ohio's rape shield law.
 
State v. Swann, 171 Ohio App. 3d 304, 2007-Ohio-2010 -- Applying Holmes v. North Carolina, the trial court is deemed to had improperly applied the corroboration requirement of Evid. R. 804(B)(3) with respect to declarations against penal interest. The defense contended that a third party was responsible for a shooting, and had admitted responsibility to others, whose testimony was proffered.
 
State v. Rivas, 172 Ohio App. 3d 473, 2007-Ohio-3593 -- 36 year old man, posing as a 19 year old, arranged to meet a Xenia cop posing as a 14 year old girl. Defendant claimed he had arranged to meet a 41 year old woman and that the transcript prepared by the state from the police department's hard drive was inaccurate. Court refused to order the state provide a mirror copy of the hard drive which included information from other investigations. ¶18: Right to confrontation was denied. ¶19: Right to due process denied. Proposed alternative to providing a mirror image is in camera review by the court, perhaps employing its own expert.
 
State v. Williams (1994), 97 Ohio App. 3d 289 -- Trial court did not err in denying defense request that the identity of an informant be disclosed for purposes of a suppression hearing. Claim was that the informant had provided false information which led to issuance of search warrant. Court draws a distinction between right to confrontation at a pretrial hearing and at trial, and faults the defense for not coming forward with argument why identity of the informant was needed to proceed on the motion to suppress, which was withdrawn after court refused to order disclosure.
 
State v. Scott (1972), 31 Ohio St. 2d 1 -- Paragraph two of the syllabus: "The admission of a memorandum as 'past recollection recorded' in a criminal case does not deprive the defendant of his right of confrontation and cross-examination, where the witness is present on the stand and is available for full cross-examination by the defendant."
 
State v. Spikes (1981), 67 Ohio St. 2d 405 -- Paragraph one of the syllabus: "R.C. 2317.422, which established a procedure for admitting hospital records in evidence, via a sworn, written certification from the custodian of records, preserves the confrontation rights of a criminal defendant...(State v. Tims (1981), 9 Ohio St. 2d 136, overruled, in part.) Also see State v. Walker (1978), 53 Ohio St. 2d 192 (copies of logbook pages relating to OMVI tests).
 
State v. Walker (1978), 53 Ohio St. 2d 192 -- No denial of confrontation when breath analysis machine logbooks are admitted pursuant to R.C. 2317.42 as official reports by state officers. At page 200: "It is important to note that we are not further expressly or implicitly holding that all documents qualifying under the Official Reports as Evidence Act are admissible in a criminal proceeding."
 
State v. Fleming (May 10, 1983), Franklin Co. App. No. 82AP-813, unreported (1983 Opinions 1313, 1317-1319) -- R.C. 2925.51, permitting admission of lab report in drug cases as prima facie evidence of identification, unless defendant makes timely demand for testimony of analyst, does not deny right to confrontation.
 
Delaware v. Fensterer (1985), 474 U.S. 15 -- Though expert witness could not recall what theoretical application which led him to the conclusion he testified to, the Confrontation Clause was satisfied by the opportunity to fully cross-examine, exposing the weaknesses of his testimony.
 
State v. Lopez (1993), 90 Ohio App. 3d 566 -- Officer testified that the statements of people he interviewed were consistent with his investigation. No confrontation violation found in the court's refusal to allow defense counsel access to all of those statements.
 
State v. Daniels (1993), 92 Ohio App. 3d 473 -- 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.
 
State v. Craig (1998), 130 Ohio App. 3d 639 -- Community control may be revoked though new charges were dismissed. Reversed nonetheless as defendant was denied his right to confrontation. Victim of new domestic violence charge did not appear, court made no finding of good cause for not allowing confrontation and arresting officer's testimony did not fall within exceptions to the hearsay rule or otherwise carry indicia of reliability.
 
State v. Jamison (1969), 20 Ohio App. 2d 196 -- Headnote 3: "In a post conviction proceeding it is error for the trial court to rely upon facts personally known to it, or to rely upon an affidavit of appointed counsel, for such reliance constitutes a denial of the petitioner's right of confrontation, cross-examination and an impartial tribunal."
 
State v. Schaim (1992), 65 Ohio St. 3d 51 -- The confrontation clause requires that a hearing impaired defendant be provided assistance so that he may understand and participate in the proceedings against him.
 
State v. Gettys (1976), 49 Ohio App. 3d 241, 247-249 -- Local court rule providing for cases to be tried by playing videotaped deposition for the jury instead of presenting live testimony was a denial of confrontation.
 

Publishing Information

Published by David L. Strait
 
Copyright © Franklin County Public Defender and David L. Strait, 2015
 
Contents may not be duplicated without express permission.

OFFICE OF THE OHIO PUBLIC DEFENDER

  250 EAST BROAD STREET
SUITE 1400
COLUMBUS, OHIO 43215
(614) 466-5394
(800) 686-1573