Tuesday, March 28, 2006

Persons present must be called to testify.

Sarah Johnson won in State v. Wilson, No. 93,648 (Kan. App. March 17, 2006), overturning two counts of forgery and a count of attempted theft by deception out of Saline County. Although a split majority rejected a multiplicity claim, the COA reversed based on a hearsay violation. During redirect examination, the prosecutor elicited statements from an out-of-court declarant. When defense counsel entered a hearsay objection, the state indicated that the witness was present and the district court overruled the objection. Although the declarant was apparently in the courthouse, she was never called to testify. The COA noted that under K.S.A. 60-460(a) (the persons present exception) the declarant must testify either before or after the admission of the out-of-court statement. It is important to note in cases like this, it is insufficient that the defendant might have called the witness–cross-examination is different than direct examination. And the COA also held that defense counsel’s solicitation of further damaging hearsay statements on cross-examination of the officer did not render the error harmless:

this testimony did not occur until after the State offered and the court admitted improper hearsay statements, its content should not be considered in evaluating the issue of harmless error. We know of no rule that provides that if the prosecutor commits reversible error on redirect examination, it can be turned into harmless error on cross-examination.
This is a pretty important point on harmless error analysis.

[Update: The state did not file a petition for review and the mandate issued in this case on April 20, 2006.]

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