Cross-Examination

 

Franklin County Criminal Law Casebook

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

Evidence Rule 611 -- Mode and Order of Interrogation and Presentation.
Evidence Rule 613 -- Prior Statements of Witnesses.

Basics

State v. Spradlin, 187 Ohio App. 3d 767, 2010-Ohio-2140 – Male codefendant in a drug case exercised his right to a jury trial. Woman’s charges were tried to the bench. After the woman rested her case, the male testified. She was not allowed to cross-examine. Reveresd.
 
State v. Cash, 193 Ohio App. 3d 224, 2011-Ohio-1404 – Judge meddled during cross but the appellate court is unwilling to grant relief. Among the blunders was the belief cross was limited by the scope of direct, as it is under the federal rules.
 
State v. Lowe, 164 Ohio App. 3d 726, 2005-Ohio-6614, ¶11 -- While a cross-examiner must have a good faith basis for posing a question, when that basis is not specifically challenged at the trial level it presumed such basis exists.
 
State v. Browning (1954), 98 Ohio App. 8 -- (1) At page 10: "Cross-examination of a witness is perhaps the most effective means devised by the law for the discovery of the truth, and is an accepted universal right. The constitutional right of an accused to meet the witnesses face to face included 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." (2) At page 14: Evidence of habits of sobriety, condition of sobriety at the time of the incident, mental health, associations in life, similar accusations made and general habits may all bear on credibility and the jury's ability to sort through conflicting versions of the facts.
 
State v. Gillard (1988), 40 Ohio St. 3d 226 -- (1) Paragraph two of the syllabus: "A cross-examiner may ask a question if the examiner has a good-faith belief that a factual predicate for the question exists..." (2) At 233-134: A witness, other than the defendant, may be asked about a previous offense disposed of through a no contest plea.
 
State v. Daugherty (1987), 41 Ohio App. 3d 91 -- Improper for prosecutor during cross-examination to imply, under the pretext of asking a question, that the defendant's employment records would contradict her testimony, then fail to support that assertion. Unfortunately for the prosecutor, the court, before sentencing reviewed those records and found they supported the defendant's testimony.
 
State v. Minor (1988), 47 Ohio App. 3d 22, 27 -- There is no requirement that the cross-examiner introduce extrinsic evidence of a prior inconsistent statement, if that statement is denied, unless there is an indication that the question was posed without a good faith belief that the statement had been made.
 
Smith v. State (1932), 125 Ohio St. 137, 148 -- "A witness may be properly cross-examined as to all relevant facts developed by the examination in chief and as to such other relevant facts into which the party calling such witness could have inquired in order to make out his case."
 
State v. Miracle (1973), 33 Ohio App. 2d 89, 99 -- An opposing party's expert witness may be asked questions, beyond the scope of direct examination, which tend to support the cross-examiner's case. Also see State v. Rivers (1977), 50 Ohio App. 2d 129, 132-133; Cities Service Oil Co. v. Burkett (1964), 176 Ohio St. 449, 452.
 
State v. Faulkner (1978), 56 Ohio St. 2d 42, 46 -- Where no new matters are explored on redirect examination, it is not an abuse of discretion for the court to deny defense counsel's request to conduct recross examination.
 
State v. Haddix (1994), 93 Ohio App. 3d 470, 473-474 -- "Crim. R. 16(B) imposes on the prosecutor a duty to disclose certain information upon a proper discovery request. The rule does not distinguish between whether documents are intended to be used by the prosecutor in its case-in-chief or in cross-examination. Accordingly, the state's failure to disclose appellant's income tax returns, despite appellant's proper discovery request, violated Crim. R. 16(B)(1)(c)."
 
State v. Nobles (1995), 106 Ohio App. 3d 246, 272-272 -- Defense counsel elected not to cross-examine 16 witnesses, based on a Hamilton County case [State v. Miller (1988), 56 Ohio App. 3d 130] holding cross-examination of a witness waives objection to that witness's testimony. This was done to protect a substantial corpus delicti issue. Though court tends to agree with a Franklin County case [State v. Farris (March 24, 1994) Franklin Co. App. No. 93APA08-1211, unreported (1994 Opinions 1248)], finding it contrary to common sense to force election between cross and waiver of challenge to testimony of a witness, it was not ineffective assistance of counsel to skip cross-examination on such basis.
 
State v. Grubb (1996), 111 Ohio App. 3d 277 -- Prosecutor used defendant's response on cross-examination as the point of departure for calling defendant's ex wife to rebut his claim he had never assaulted her. Defendant had on his own made no claims concerning his good character. At p. 281: "The prosecution cannot circumvent the limited nature of the exception provided in Evid. R. 404(A)(1) by putting the character of an accused in issue via its own questions, and then present evidence to rebut the answers."
 
Geders v. United States (1976), 425 U.S. 80 -- It was a denial of the right to counsel to forbid consultation between defendant and counsel during overnight recess between direct and cross-examination.
 
State v. Malott (1992), 79 Ohio App. 3d 393 -- Officer testified at the suppression hearing in an OMVI case. Court denied 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.
 
State v. Stearns (1982), 7 Ohio App. 3d 11 -- Headnote 1: "The trial court properly allows the prosecutor to use leading questions for the state's witness pursuant to Evid. R. 611(C), where the witness is shown to have a strong affinity to the defendant, frequently gave incomplete or evasive answers, and testified differently from statements previously given to the prosecution."
 
State v. Parker (February 1, 1994), Franklin Co. App. No. 93AP-975 -- Answer on cross-examination was nonresponsive and contained damaging hearsay. Erroneous failure to strike required new trial.
 
State v. Hartford (1984), 21 Ohio App. 3d 133 -- While counsel must be allowed to proffer excluded evidence, since doing so is a prerequisite for appellate review, Evidence Rule 103(A)(2) does not require an offer of proof if evidence is excluded during cross-examination.
 
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.

Subject Matter

In re Orick, 182 Ohio App. 3d 333, 2009-Ohio-2097 – Defense should have been allowed to ask victim of alleged rape how he might have known she was at the location where the incident occurred since it went to credibility. Defense also was entitled to inquire concerning victim‘s efforts to defend herself. While proof of resistance is not required, inquiry was relevant to consent.
 
State v. Drummond, 111 Ohio St. 3d 14, 2006-Ohio-5084, ¶97-109 -- No error or harmless error found in denying cross concerning pending charges. Issue is whether they are probative of bias, interest, or character for truthfulness or untruthfulness.
 
State v. Pinkney (1988), 36 Ohio St. 3d 190 -- Paragraph one of the syllabus: "The clearness or want of clearness of recollection of a witness as affecting that witness's credibility is a proper subject for cross-examination."
 
State v. Hannah (1978), 54 Ohio St. 2d 84 -- Syllabus: "Where a conviction must turn substantially upon the identification of the defendant as the guilty actor by the victim-witness, any unreasonable limitation upon defendant's right to a complete cross-examination of that witness is prejudicial error." Spurious hearsay objections prevented defense counsel from pursuing questions concerning inconsistent statements by witness during earlier telephone interview.
 
State v. Brooks (1996), 75 Ohio St. 3d 148, 151-152 -- Court refused to allow cross-examination to establish witness had originally been charged with complicity. While neither Evid. R. 609 nor 608(B) provided a basis for such cross, Evid. R. 616 did. (Bias, prejudice, interest or motive to misrepresent.)
 
State v. Ferguson (1986), 30 Ohio App. 3d 171 -- Headnote 2: "It is error for the court to prohibit the defense, during cross-examination, from impeaching the testimony of a witness by showing that (1) the witness was also indicted for the same offenses, and (2) the witness had been granted immunity in exchange for his testimony." Also see State v. Perez (1991), 72 Ohio App. 3d 468; State v. Patton (1991), 74 Ohio App. 3d 224.
 
State v. Riffle (1982), 3 Ohio App. 3d 202 -- Court erroneously blocked cross-examination concerning psychiatric treatment received by prosecuting witness in a rape case which might have borne upon her credibility.
 
Olden v. Kentucky (1988), 488 U.S. 227 -- Speculation as to the effect of jurors' racial biases cannot "left" exclusion of cross-examination with strong potential to demonstrate the falsity of a witness' testimony. Defense claimed alleged rape victim had a motive to falsely accuse defendant to "left" late return home to man she was apparently having an affair with.
 
State v. Ferguson (1983), 5 Ohio St. 3d 160 -- Paragraph three of the syllabus: "An accused is permitted to cross examine the prosecuting witness as to the witness' pending or contemplated civil action against the accused, in order to demonstrate any possible bias or prejudice arising out of the witness' financial interest in the outcome of the prosecution." Also see State v. Doughty (Maine 1979), 399 A. 2d 1319, 1323; Calderon v. Sharkey (1982), 70 Ohio St. 2d 218.
 
State v. Rapp (1990), 67 Ohio App. 3d 33 -- Defense improperly prevented from cross-examining undercover drug agent concerning his income from such activity.
 
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.
 
State v. Boulabeiz (1994), 92 Ohio App. 3d 238 -- Native of Morocco blew his horn, then drove over two women who were fighting in the street, blocking his car. Then he backed over them. Opinion suggests that questioning of the defendant by the prosecutor regarding the culture and beliefs of people living in his native country, his family there, and the rights of women in that country, was irrelevant and improper.
 
State v. Mundy (1994), 99 Ohio App. 3d 275, 316-317 -- No abuse of discretion in not allowing recross-examination of child witness where matters proffered by counsel had been covered on cross.
 
State v. Hines (December 11, 1980), Franklin Co. App. No. 80AP-338, unreported (1980 Opinions 3728) -- Reversible error for prosecutor to ask defendant whether he would lie to avoid going back to the penitentiary. Compare State v. Garfield (1986), 33 Ohio App. 3d 300, 303-304.

In Camera Inspection of Witness Statements

Criminal Rule 16(B)(1)(g)
 
State v. Daniels (1982), 1 Ohio St. 3d 69 -- Syllabus: "Once the court independently determines that a producible out-of-court witness statement exists, attorneys for all parties, upon the granting of a defendant's timely motion for an in camera inspection of the statement, must be given the opportunity to: (1) inspect the statement personally; and (2) call to the court's attention any perceived inconsistencies between the testimony of the witness and the prior statement. (Crim. R. 16[B][1][g] construed and applied.) Also see Palmero v. United States (1959), 360 U.S. 343; State v. Johnson (1978), 62 Ohio App. 2d 31.
 
Columbus v. Bee (1979), 67 Ohio App. 2d 65, 78 -- "An advocate is frequently in a better position than the court to spot such inconsistencies, being much more familiar with the entire case... Thus the advocate is able to intelligently argue the matter prior to the court's ruling."
 
State v. Schnipper (1986), 22 Ohio St. 3d 158 -- The court's obligation to make an in camera inspection of a witness' previous statements arises only upon the request by counsel that such an inspection be conducted.
 
State v. Jenkins (1984), 15 Ohio St. 3d 164, 225 -- Those portions of a police report which constitute the statement of a testifying officer are subject to in camera inspection pursuant to Crim. R. 16(B)(1)(g). "When it is doubtful whether any discoverable statement exists, the court, on motion of the defendant, shall conduct a hearing on the issue of disclosure held in camera with both attorneys present and participating."
 
State v. Johnson (1978), 62 Ohio App. 2d 31, 37 -- "...(W)e see no reason why the mere fact that the document was a report from one police officer to another would automatically bar its productibility under Crim. R. 16(B)(1)(g). Cf. State v. Smith (1976), 50 Ohio App. 2d 183. We hold that under certain conditions a police report may be producible under Crim. R. 16(B)(1)(g) and adopt the test for productibility advanced in State v. Houston (Iowa 1973), 209 N.W. 2d 42, 46."
 
State v. Houston (Iowa 1973), 209 N.W. 2d 42, 46 -- "The true test is whether the statement is the witness' own, rather than the product of the investigator's selections, interpretations and interpolations. It must be shown, unless there is direct evidence the witness prepared, signed or adopted the statement, that it is minimally a continuous, narrative statement made by the witness and recorded verbatim, or nearly so."
 
State v. Billups (1990), 68 Ohio App. 3d 248 -- (1) Statements contained within police reports are subject to in camera inspection. (2) It is error for a trial court not to preserve disputed reports as a part of the record for purposes of appellate review.

Other Issues

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 denied when insufficient notice to defense of 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. Prokos (1993), 91 Ohio App. 3d 39 -- (1) Prolonged and repetitive questioning from the bench which communicates the judge's view of the merits is improper. (2) Cross-examination of a witness regarding his accent and national origin in a badgering manner is improper.
 
State v. Wayt (1992), 83 Ohio App. 3d 848, 853-858 -- While the practice of allowing jurors to pose questions to witnesses may be acceptable, though controversial, counsel must be afforded a full opportunity to further examine the witness after such questions have been posed.
 
State v. Litz (1982), 8 Ohio App. 3d 321 -- Error for court to allow prosecutor during cross-examination to use police report from previous incident involving homicide victim and defendant to attack claim of self-defense. Report was hearsay and neither it nor the reporting officer's testimony would have been admissible under any of the exceptions to the hearsay rule.
 

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.

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