EvidenceProf Blog

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

Friday, January 8, 2021

Court of Appeals of Ohio Finds Blanket Ban on Recross-Examination Was Improper

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. 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.



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This is an interesting little case, thanks for posting.

At least in terms of the bottom line conclusion, I think the dissent is actually correct.

While the majority was clearly right that the trial court did have a blanket recross ban, I don’t agree that such a policy is a per se abuse of discretion (AoD); the majority simply asserted that it is, but without citing any authority for the proposition.

Instead, the dissent cited authority showing that denying recross is necessarily AoD only when that prevents inquiring about new matter elicited during redirect. The dissent further noted that under the circumstances here, no such new, material evidence had arisen during the prosecution’s re-direct examination of the witness. As such, the trial court’s blanket policy didn’t cause the defendant any actual prejudice.

So while I can sympathize a little with the majority’s apparent distaste for blanket recross bans, it seems like under the case-law that alone won’t be enough to cause error.

Two stray thoughts in closing:
(1) I felt sort of bad for trial counsel. S/he seemed genuinely surprised at being denied recross. I wonder if counsel had any previous experience with that judge.
(2) Although it didn’t really make a difference to the dissent’s bottom line conclusion, it seems like the 8th Appellate District in Hartley misinterpreted the Supreme Court’s holding in Faulkner.

Posted by: hardreaders | Jan 8, 2021 9:47:06 PM

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