EvidenceProf Blog

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

Friday, April 23, 2010

For Your Eyes Only: Court Of Appeals Of Ohio Finds Trial Court Erred By Allowing Witness To Read Rule 612 Writing Aloud

Like its federal counterpart, Ohio Rule of Evidence 612 indicates that

Except as otherwise provided in criminal proceedings by Rules 16(B)(1)(g) and 16(C)(1)(d) of Ohio Rules of Criminal Procedure, if a witness uses a writing to refresh memory for the purpose of testifying, either: (1) while testifying; or (2) before testifying, if the court in its discretion determines it is necessary in the interests of justice, an adverse party is entitled to have the writing produced at the hearing. The adverse party is also entitled to inspect it, to cross-examine the witness thereon, and to introduce in evidence those portions which relate to the testimony of the witness. If it is claimed that the writing contains matters not related to the subject matter of the testimony the court shall examine the writing in camera, excise any portions not so related, and order delivery of the remainder to the party entitled thereto. Any portion withheld over objections shall be preserved and made available to the appellate court in the event of an appeal. If a writing is not produced or delivered pursuant to order under this rule, the court shall make any order justice requires, except that in criminal cases when the prosecution elects not to comply, the order shall be one striking the testimony or, if the court in its discretion determines that the interests of justice so require, declaring a mistrial.  

In other words, if a witness once had personal knowledge of an event but now lacks memory of that event, an attorney can use a writing to refresh the witness' recollection and allow the witness to testify independent of the writing. Thus, the witness cannot read aloud from the writing under Rule 612; that can only be done if the writing also qualifies for admission as a recorded recollection under Ohio Rule of Evidence 803(5) (or is otherwise admissible). An Ohio trial court recently missed this point, leading to the recent opinion of the Court of Appeals of Ohio, Twelfth District, in State v. Miller, 2010 WL 1534104 (Ohio App. 12 Dist. 2010).

In Miller, Kimble Miller was convicted of child endangering. Specifically, the prosecution claimed that Miller

shook his 38-day-old daughter four to five times, causing her head to go back and forth, after she would not drink her bottle. Upon her arrival at Cincinnati Children's Hospital, the child was diagnosed as being "neurologically devastated" with a "global dying off of the brain." The child also had several rib fractures, some old, some new, and fractures on one foot. The hospital was able to keep her alive but her brain could not be saved; her brain injuries are permanent. As a result of her injuries, the child has cerebral palsy and vaso quadriplegia, and is at a "continual risk for death."

At trial, Lindsey Breen, the child's mother, testified as a witness for the prosecution. At one point during Lindsey's testimony, she stated that the child did not cry at birth, and was not alert or active. Therefater,

The prosecutor asked Lindsey to review the nurse's notes, and then asked her to read aloud what was written at the bottom of the notes. Lindsey complied and read: "Alert, active, lusty cry." Subsequently, Lindsey testified the notes were incorrect as the child did not cry at birth. The nurse's notes were certified, marked as a state exhibit for identification, but never offered in evidence.

After he was convicted, Miller appealed, claiming, inter alia, that the trial court only deemed the notes admissible under Ohio Rule of Evidence 612, meaning that Lindsey could not read them aloud while testifying. The appellate court agreed, noting that

A party may refresh the recollection of a witness under Evid.R. 612 by showing him a prior writing. However, the party may not read the statement aloud, have the witness read it aloud, or otherwise place it before the jury....Rather, the witness should read the writing silently to refresh his recollection....If his recollection has been revived, the witness may then continue with his testimony....The writing used to refresh the witness' recollection is not admitted into evidence unless admission is requested by the adverse party.

The court thus concluded that

the prosecutor's examination of Lindsey did not comport with the rules governing how a party may refresh the memory of its own witness with a writing. The prosecutor did not simply show the nurse's notes to Lindsey. Rather, the prosecutor had Lindsey read aloud the statement in the nurse's notes describing the child at birth as “alert, active, lusty cry.” The manner in which the prosecutor had Lindsey read aloud was more indicative of impeachment techniques and as such violated the purpose of Evid.R. 612. Evidence that the child cried at birth was therefore improperly admitted.

(Based upon the other evidence in the record, however, the court deemed the error to be harmless)



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