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Editor: Colin Miller
Univ. of South Carolina School of Law

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Monday, February 21, 2011

Thanks For The Opportunity: Court Of Appeals Of Ohio Finds Deficient Cross-Examination Doesn't Preclude Application Of Rule 804(b)(1)

Similar to its federal counterpart, Ohio Rule of Evidence 804(b)(1) provides an exception to the rule against hearsay for 

Testimony given as a witness at another hearing of the same or a different proceeding, or in a deposition taken in compliance with law in the course of the same or another proceeding, if the party against whom the testimony is now offered, or, in a civil action or proceeding, a predecessor in interest, had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination. Testimony given at a preliminary hearing must satisfy the right to confrontation and exhibit indicia of reliability.

So, let's say that a witness for the prosecution testifies at a preliminary hearing, and the prosecution seeks to present that testimony at trial without having that witness testify again. Will the fact that defense counsel engaged in a deficient cross-examination of that witness present the testimony from being introduced under this "former testimony" exception. According to the recent opinion of the Court of Appeals of Ohio, Tenth District, in State v. Sidibeh, 2011 WL 553140 (Ohio App. 10 Dist. 2011), the answer is "no" because Rule 804(b)(1) only requires the opportunity and similar motive to develop the testimony.

In Sidibeh,  Hassan Sidibeh was convicted of offenses pertaining to an October 12, 2008 home invasion. The invasion happened at a home in which Raheem Carter lived, and, at a 

bindover hearing, Raheem testified that [Sidibeh], [Kacey] Brown, and [Robert] Vann committed the home invasion around 10:45 p.m. He recognized [Sidibeh] when the incident occurred, and, during the bindover hearing, he identified [Sidibeh] as a participant of the home invasion. [Sodobeh]'s defense counsel, who was different from the one at trial, cross-examined Raheem. During cross-examination, Raheem testified that he had seen a photograph of [Sidibeh] on a social networking website before the home invasion. He said that he had not seen [Sidibeh] "in person" before the incident, however.

Later, Raheem was unavailable to testify at trial because he had died in an incident unrelated to the home invasion, so the prosecution introduced his testimony from the bindover hearing pursuant to Ohio Rule of Evidence 804(b)(1).

After he was convicted, Sidibeh appealed, claiming, inter alia, that Raheem's former testimony was inadmissible under Rule 804(b)(1) because his attorney at the bindover hearing was deficient in that he failed to conduct a sufficiently rigorous cross-examination of Raheem. The Court of Appeals of Ohio disagreed, finding that Rule 804(b)(1)

is not concerned with "the actual cross-examination itself."...Instead, the rule requires that a party have an opportunity for cross-examination....Likewise, a defendant's constitutional right to confront witnesses "guarantees only an opportunity for cross-examination."...Appellant was given an opportunity to cross-examine Raheem, and we need not consider appellant's challenges to the adequacy of that cross-examination.

-CM

http://lawprofessors.typepad.com/evidenceprof/2011/02/804b1-state-v-sidibehslip-copy-2011-wl-553140ohio-app-10-dist2011.html

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