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Univ. of South Carolina School of Law

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Monday, October 11, 2010

The Long Lead: Court Of Appeals Of Ohio Finds No Problem With Judge Asking Leading Questions To Prosecution's Expert Witness

Federal Rule of Evidence 614(b) provides that "The court may interrogate witnesses, whether called by itself or by a party." Meanwhile, Ohio Rule of Evidence 614(B) makes explicit what is implicit in its federal counterpart. It provides that "The court may interrogate witnesses, in an impartial manner, whether called by itself or by a party." (emphasis added). So, when does the court interrogate witnesses in a partial manner? Apparently not by asking leading questions to the prosecution's expert witness after her testimony has been attacked by defense counsel, at least according to the recent opinion of the Court of Appeals of Ohio, Twelfth District, in its recent opinion in State v. Stout, 2010 WL 3836158 (Ohio App. 12 Dist. 2010).

In Stout, James Stout was convicted of harassment by an inmate after he allegedly threw a cup filled with his urine in the face of corrections officer Richard Stiehl. At trial, the prosecution

introduced the testimony of Sarah Glass, a forensic scientist...Glass testified that she performed an amylase test on a stain on Officer Stiehl's uniform shirt. She explained that amylase is an enzyme found in saliva, and is also present in other bodily fluids, including urine, in "small amounts." Glass stated that the amylase test performed on Stiehl's shirt yielded a positive result, indicating the presence of the enzyme. She testified that based upon her training and experience, the presence of amylase indicated that there "could be saliva there." She also stated that there could be other bodily substances present.

[Stout] testified at trial and admitted to throwing fluid on Stiehl, but claimed that it was water from the toilet in his cell....

The nature of the substance thrown on Officer Stiehl was disputed at length at trial. Glass admitted on cross-examination that although the test she performed detected the amylase enzyme, it did not necessarily indicate that a bodily substance was present. Glass explained that the enzyme is produced by both humans and animals, and is also found in food products. Glass further testified that she was not told to perform any specific tests on Stiehl's uniform shirt, and chose the amylase test because it was the most expedient and cost-effective test to perform in checking for the presence of saliva. She also testified that she was not instructed to conduct a creatinine test on the shirt, which is specifically used to test for the presence of urine.

After Stout tried to establish that the amylase test did not conclusively prove that the stain on Stiehl's uniform shirt was in fact a bodily substance during recross-examination of Glass, the trial judge engaged in the following interrogation of Glass:

THE COURT: I do have a question or two. They send you this evidence. You're asked to run a test to determine if there are bodily fluids on the shirt. Is that what you are doing?

[GLASS]: Yes.

THE COURT: Okay. You have a choice as to whether you can test for saliva, urine, or blood?

[GLASS]: Or feces or semen.

THE COURT: Okay. You have a choice-you can test for any of those specifically, correct?

[GLASS]: Correct.

THE COURT: Do you know what substance you were supposed to test for when you got this case?

[GLASS]: No, I did not.

THE COURT: You were just testing to see whether or not there was a bodily fluid?

[GLASS]: Yes.

THE COURT: And you ran the first and the easiest test being the amylase test?

[GLASS]: Correct.

THE COURT: Once you found-you got a positive result from that, you stopped running tests-

[GLASS]: Correct.

THE COURT:-because you saw there was a bodily fluid?

[GLASS]: Yes.

THE COURT: Okay. Are you able to-

[DEFENSE COUNSEL]: Your Honor, could we approach?

THE COURT: One moment. Are you able to tell any concentrations by specific numbers?

[GLASS]: We do have a standard that we apply to paper that is a very deliberate concentration type amylase and if the positive on what we test, the stain that we test, the positive is greater than that standard that is positive, anything less we don't call positive.

Thereafter, defense counsel objected to this line of questioning at a sidebar conference, claiming that it was an attempt to bolster Glass' testimony but the trial judge overruled his objection. After he was convicted, Stout appealed, claiming that the above interrogation exceeded the scope of the trial judge's interrogation authority under Ohio Rule of Evidence 614(B). In rejecting this argument, the Court of Appeals of Ohio, Twelfth District, found that

Although the trial court's questions came close to crossing the line from "helpful clarification to unwarranted interference," upon review, we conclude that the questions did not go beyond the parameters of Evid.R. 614(B)....The tenor and nature of the court's questions did not indicate that it was expressing an opinion as to the evidence or Glass' credibility. Rather, they consisted of attempts to clarify her testimony.

Really? It seems to me like the trial judge asked, essentially, leading questions to which he already knew the answer. Consider, for example, this exchange:

THE COURT: You were just testing to see whether or not there was a bodily fluid?

[GLASS]: Yes.

THE COURT: And you ran the first and the easiest test being the amylase test?

[GLASS]: Correct.

THE COURT: Once you found-you got a positive result from that, you stopped running tests-

[GLASS]: Correct.

THE COURT:-because you saw there was a bodily fluid?

[GLASS]: Yes.

This was not the trial judge clarifying testimony. This was the trial judge ostensibly restating Glass' testimony in an attempt to bolster her testimony after defense counsel had attacked it. Or at least, that's the way I see it.

-CM

http://lawprofessors.typepad.com/evidenceprof/2010/10/614b-state-v-stoutslip-copy-2010-wl-3836158ohio-app-12-dist2010.html

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