BE PATIENT

The Evidence ProfBlogger has an interesting post about an Ohio judge who limited re-cross examination. There may well not be any judges who have not become frustrated with lawyers who drag out proceedings. And so the temptation is to just cut them off. But as this case illustrates better practice is be patient.

Federal Rule of Evidence 611(b) states that

Cross-examination should not go beyond the subject matter of the direct examination and matters affecting the witness’s credibility. The court may allow inquiry into additional matters as if on direct examination.

Meanwhile, Ohio Rule of Evidence 611(b) is broader. It states that

Cross-examination shall be permitted on all relevant matters and matters affecting credibility.

Yesterday’s opinion of the Court of Appeals of Ohio, Eighth District, Cuyahoga County in State v. Umstead, 2021 WL 62151 (Ohio. App. 2021), however, did not deal with cross-examination; it dealt with recross-examination.

In Umstead, Robert Umstead was charged with aggravated menacing. After an eyewitness for the prosecution testified on direct examination, the defense cross-examined her, followed by the prosecutor on redirect examination. Then, the following exchange occurred:

DEFENSE ATTORNEY: Can I have one –
THE COURT: No. No.
DEFENSE ATTORNEY: One question.
THE COURT: No. All right?
DEFENSE ATTORNEY: I can’t recross?
THE COURT: No. No means no, right?
DEFENSE ATTORNEY: I want to recross.
THE COURT: I said no.
DEFENSE ATTORNEY: Is there a reason I don’t – I can’t –
THE COURT: Because I don’t do that in 12-B and it’s my courtroom and I said no.

After Umstead was convicted, he appealed, claiming that the trial judge improperly precluded recross-examination. After noting that Ohio Rule of Evidence 611(b) is broader than Federal Rule of Evidence 611(b), the Court of Appeals held that “[u]nder no circumstances is a blanket policy prohibiting all recross-examination appropriate.” 

The Court of Appeals then granted Umstead a new trial, finding that

Eyewitness testimony…can carry great weight considering that a single credible eyewitness can sustain a conviction….The state was given the opportunity to reexamine [the eyewitness. Umstead’s counsel stated he had only one further question he wished to ask [the eyewitness] on recross-examination, which mitigates any concerns that might merit a reasonable limit on recross-examination. Nevertheless, his request to briefly recross [the eyewitness] was denied with no reason other than “I don’t do that in 12-B and it’s my courtroom and I said no.”

This statement demonstrates that the trial court had a blanket prohibition on recross-examination. The trial court abused its discretion in imposing this blanket prohibition, and Umstead was denied a fair trial as a result.

-CM

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