Ohio Criminal Appeals Lawyer Blog

John Syx was convicted of Operating a Vehicle Under the Influence (OVI) after he was caught speeding down Wayne Avenue in Dayton, Ohio. But the Second District Court of Appeals of Montgomery County just reversed his conviction because Judge Pickrel erred when he allowed into evidence, over objection by his criminal defense lawyer, blood test results showing Syx had a BAC of 0.11 percent.

Judge Fain wrote for the Court of Appeals that the State has "the burden of establishing a foundation for the admissibility of the test results at trial, and Syx has a constitutional right to cross-examine the witnesses in order to challenge their credibility, the methodology employed, and any other factors that might affect the weight to be given to the test results. The State's failure to call [the phlebotomist or the toxicologist] at trial deprived Syx of his constitutional right to confront those witnesses

The Court of Appeals cited Melendez-Diaz v. Massachusetts (2009), __ U.S. __, 129 S.Ct. 2527, and you can read the decision by the Second District Court of Appeals here.

If you are accused of a crime or have been convicted already, contact me if you can afford to hire a private attorney. Otherwise, contact your county or state public defender to see if they can help.

Two Ohio convictions were reversed this week because prosecutors tried to prove their cases even when their "victims" did not show up to testify at trial. But even prosecutors have to follow the law. Hearsay is not admissible as stated in Ohio Evidence Rule 802. And the "Confrontation" Clauses of the United States and Ohio Constitutions require an accuser to come to court to make their accusations. This gives the accused the chance to cross examine them to test their claims.

Ohio's Eleventh District Court of Appeals reversed a conviction out of Portage County because the State had an officer testify about what the alleged criminal damaging victim told him. The defense lawyer objected and the trial judge characterized the defense lawyer's objection as "ludicrous." That's reassuring, isn't it? Read the case by clicking here.

Ohio's Twelfth District Court of Appeals reversed a conviction out of Butler County because the defense lawyer failed to object when a neighbor and officer gave crucial testimony about an alleged burglary. The failure to object constituted the ineffective assistance of trial counsel as you can read by clicking here.

Today the Second District Court of Appeals took a common sense approach to hearsay in two cases.

In one case (which you can read by clicking here) the defendant got into an accident with another driver. An officer testified that a person - who did not testify - corroborated the other driver's version of events. The prosecutor argued on appeal that there was no hearsay violation because the officer did not testify as to what this witness actually said - just that they corroborated the version of events of the other driver. What??? The Second District did not buy that one and wrote, "there is no substantive difference between allowing a police officer to state which of two opposing views an out-of-court witness corroborated and allowing him to recount the actual substance of an out-of-court witness's statement."

In a second case about a traffic accident (you can read by clicking here) an officer testified that based on a statement of a witness who did not testify, he was able to determine that the defendant was at fault for the accident. Here too the prosecutor argued that there was no problem because this testimony only went to show why the officer's investigation led him to ticket the defendant. But the Second District Court of Appeals determined this was hearsay too.

This interpretation of hearsay makes sense and it is always nice when the law comports with common sense.