Oregon Supreme Ct - Dec. 3, 2015
by: Abassos • December 3, 2015 • no comments
(Created page with "<summary hidden> * * * </summary> The Trial Court May Not Permit Detailed Cross-Examination of a Defense Witness By the Prosecutor Merely to Find Out Whether the Witness Will...") |
|||
| Line 1: | Line 1: | ||
<summary hidden> | <summary hidden> | ||
* | * | ||
| − | * | + | *The Trial Court May Not Permit Detailed Cross-Examination of a Defense Witness By the Prosecutor Merely to Find Out Whether the Witness Will Assert a Right to Remain Silent |
* | * | ||
</summary> | </summary> | ||
| − | |||
| − | While a trial court has broad authority to determine whether a witness is really going to testify (or instead, assert the right to remain silent), there is a limit to that authority. That limit is crossed when the judge allows a detailed pretrial examination of a witness by one of the parties. Here, the defense planned to call a co-defendant (who had already pled guilty) and | + | |
| + | '''The Trial Court May Not Permit Detailed Cross-Examination of a Defense Witness By the Prosecutor Merely to Find Out Whether the Witness Will Assert a Right to Remain Silent''' | ||
| + | |||
| + | While a trial court has broad authority to determine whether a witness is really going to testify (or instead, assert the right to remain silent), there is a limit to that authority. That limit is crossed when the judge allows a detailed pretrial examination of a witness by one of the parties. Here, the defense planned to call a co-defendant (who had already pled guilty). The trial court had the defense conduct a limited examination about whether he was willing to testify. But on cross, the judge "effectively permitted an unlawful pretrial deposition of a defense witness . . . including asking leading questions to draw out a moment- by-moment description of . . . actions and statements leading up to and during the assault". Allowing such a detailed pretrial examination violated both the discovery rules (ORS 135.805 to ORS 135.873) and ORS 136.420, which provides that all testimony “shall be given orally in the presence of the court and jury". The court also finds the error to be harmless, however, since the defendant could identify no significant benefit gained by the state through having the additional information. [http://www.publications.ojd.state.or.us/docs/S059530.pdf State v Agee], 358 Or 325 (2015). | ||
Revision as of 22:11, December 7, 2015
The Trial Court May Not Permit Detailed Cross-Examination of a Defense Witness By the Prosecutor Merely to Find Out Whether the Witness Will Assert a Right to Remain Silent
While a trial court has broad authority to determine whether a witness is really going to testify (or instead, assert the right to remain silent), there is a limit to that authority. That limit is crossed when the judge allows a detailed pretrial examination of a witness by one of the parties. Here, the defense planned to call a co-defendant (who had already pled guilty). The trial court had the defense conduct a limited examination about whether he was willing to testify. But on cross, the judge "effectively permitted an unlawful pretrial deposition of a defense witness . . . including asking leading questions to draw out a moment- by-moment description of . . . actions and statements leading up to and during the assault". Allowing such a detailed pretrial examination violated both the discovery rules (ORS 135.805 to ORS 135.873) and ORS 136.420, which provides that all testimony “shall be given orally in the presence of the court and jury". The court also finds the error to be harmless, however, since the defendant could identify no significant benefit gained by the state through having the additional information. State v Agee, 358 Or 325 (2015).
