Summary
reversing traffic infraction because defendant was denied opportunity to cross-examine officer; stating that a “trial court has some power to regulate cross-examination * * *, but it does not have the power wholly to deny the right to cross-examine”
Summary of this case from K. M. J. v. CaptainOpinion
T91-5723; CA A73007
Argued and submitted September 21, 1992
Reversed and remanded for new trial November 4, 1992
Appeal from District Court, Polk County.
William M. Horner, Judge.
Robert D. Bulkley, Jr., Portland, argued the cause for appellant. With him on the brief was Markowitz, Herbold, Glade Mehlhaf, PC, Portland.
Kaye E. Sunderland, Assistant Attorney General, Salem, argued the cause for respondent. With her on the brief were Charles S. Crookham, Attorney General, and Virginia L. Linder, Solicitor General, Salem.
Before Joseph, Chief Judge, and Deits and Durham, Judges.
PER CURIAM
Reversed and remanded for new trial.
Defendant was convicted for speeding. At the beginning of the trial, the court had the citation-issuing officer and defendant sworn as witnesses. Defendant was unrepresented. The officer testified about the facts leading to the citation. The court then asked defendant to say what he wanted to say. Defendant said: "I was expecting to have him up here so I could question him, Your Honor." To that the court replied: "Things are all different from TV and real life. Go ahead." Defendant was not permitted to cross-examine the officer.
"It is axiomatic that a party against whom a witness is called has the right to cross examine the [witness]." Best v. Tavenner, 189 Or. 46, 53, 218 P.2d 471 (1950). "The opportunity [for] cross-examination is an essential safeguard of the accuracy and completeness of testimony, and it is a right and not a mere privilege." Jones v. Siladic, 52 Or. App. 807, 813, 629 P.2d 875, rev den 291 Or. 662 (1981). A trial court has some power to regulate cross-examination, see, e.g., OEC 611; OEC 405, but it does not have the power wholly to deny the right to cross-examine.
The error was not harmless.
Reversed and remanded for a new trial.