Read an analysis of the oral argument here.

On January 27, 2021, the Supreme Court of Ohio will hear oral argument in State of Ohio v. Theodis Montgomery, 2020-0312. At issue in this case is whether allowing the alleged victim to sit with the prosecutor at counsel table throughout the trial in front of the jury denies the defendant the right to a fair trial guaranteed by the Sixth and Fourteenth Amendments.

Case Background

Theodis Montgomery and A.B. had known each other for nearly a decade, and their families were connected.  Montgomery’s sister was married to A.B.’s father.  Montgomery became interested in a romantic relationship, but A.B. was not, as she was engaged to a man who was then in prison. After an incident in December of 2017 involving a fake Facebook page created by Montgomery, A.B. broke off contact with Montgomery.

The incidents leading to Montgomery’s arrest occurred on March 15, 2018. A.B. went over to her father’s house, where Montgomery was living. She ended up staying the night, and her father left for the airport early the next morning. A.B. alleged that, later that morning, Montgomery woke her up, yelled at her, and then punched her in the face. Montgomery then allegedly followed A.B. into the bathroom and blocked the doorway, before taking her into the basement and forcing her to clean a dog kennel. Afterwards, Montgomery forced A.B. to take a shower and forced her to engage in vaginal intercourse. He then carried her to the couch and forcibly engaged in vaginal intercourse with her again, until A.B. asked him to stop, and he did. After a short time, A.B. left the house and drove to her sister’s house and called 911. The police searched the house and collected DNA evidence. Ultimately, Montgomery was arrested and charged with one count of kidnapping with a sexual motivation specification and one count of rape. Both counts included a repeat violent offender specification.

Before Montgomery’s trial began, Stark County Common Pleas Judge Chryssa Hartnett granted the State’s motion to designate A.B. as the State’s representative and to sit at counsel table throughout the trial. A.B. testified at trial, but Montgomery did not. Instead, Montgomery relied on the testimony of many of A.B.’s family members to show that A.B. and Montgomery were in a relationship, and the sex was consensual. The jury found Montgomery guilty of kidnapping and rape but acquitted him of the sexual motivation specification accompanying the kidnapping charge. The court found him guilty of the repeat violent offender specification and sentenced him to two concurrent sentences of ten years. Montgomery appealed.

The Appeal

In a unanimous decision authored by Judge William B. Hoffman, and joined by Judges John W. Wise and Patricia A. Delaney, the Fifth District affirmed the judgment of the trial court. In the issue pertinent to this appeal, the court held that Montgomery, who had the burden of proving he was prejudiced by the victim’ presence, had made only a “vague, generalized assertion of prejudice,” and because A.B. was the first witness to testify, that Montgomery “has not demonstrated prejudice in her ability to hear the testimony of the other witnesses.” Because the victim’s presence is permitted both by the Ohio Constitution and by statute, the trial court did not err in allowing A.B. to sit at counsel table with the prosecutor throughout the trial as the State’s representative.

Votes to Accept the Case

Yes: Chief Justice O’Connor and Justices French, Fischer, Donnelly, and Stewart.

No: Justices Kennedy and DeWine.

Key Statutes and Precedent 

U.S. Constitution, Sixth Amendment (“In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.”)

U.S. Constitution, Fourteenth Amendment (“No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”)

Ohio Constitution, Art. I, Sec. 10a (“Marsy’s Law”) (A victim has the right, “upon request to reasonable and timely notice of all public proceedings involving the criminal offense or delinquent action against the victim, and to be present at all such proceedings.” A victim also has the right to “confer with the attorney for the government.”)

Evid. R. 615 (Separation and Exclusion of Witnesses)(“[A]t the request of a party the court shall order witnesses excluded so that they cannot hear the testimony of other witnesses, and it may make the order of its own motion. An order directing the “exclusion” or “separation” of witnesses or the like . . . is effective only to require the exclusion of witnesses from the hearing during the testimony of other witnesses.” In a criminal proceeding, this does not authorize the exclusion of “an alleged victim of the charged offense to the extent that the alleged victim’s presence is authorized by statute enacted by the General Assembly or by the Ohio Constitution.”)

R.C. 2930.09  (Victim’s Presence at Trial)(A victim in a case may be present whenever the defendant . . . in the case is present during any stage of the case against the defendant . . . that is conducted on the record . . . unless the court determines that exclusion of the victim is necessary to protect the defendant’s . . . right to a fair trial . . .”)

R.C. 2945.03 (Control of Trial) (“The judge of the trial court shall control all proceedings during a criminal trial, and shall limit the introduction of evidence and the argument of counsel to relevant and material matters with a view to expeditious and effective ascertainment of the truth regarding the matters in issue.”)

United States v. Lawn, 355 U.S. 339 (1958) (Vouching occurs when the prosecution places the prestige of the government behind the witness, or when it indicates that information not presented to the jury supports the witness’s testimony.)

Geders v. United States, 425 U.S. 80 (1976) (The purpose of the sequestration rule is to prevent witnesses from shaping their testimony to match that of another, and to discourage fabrication and collusion.)

Holbrook v. Flynn, 475 U.S. 560 (1986) (An arrangement or practice in a courtroom that creates a risk of “impermissible factors” coming into play is inherently prejudicial, regardless of actual prejudice.”)

Arizona v. Fulminante, 499 U.S. 279 (1991) (Structural errors are constitutional defects that affect the framework within which the trial proceeds, and therefore “defy analysis by harmless error standards.”)

Carey v. Musladin, 549 U.S. 70 (2006) (Certain courtroom practices are “so inherently prejudicial that they deprive the defendant of a fair trial.”)

Weaver v. Massachusetts, __ U.S. __, 137 S.Ct. 1899 (2017) (There are at least three instances of structural errors: (1) when the right at issue protects an interest other than erroneous conviction; (2) when the error’s effects are too hard to measure; and, (3) when the error always results in fundamental unfairness.)

State v. Bryant, 105 Ohio App. 452 (2d Dist. 1957) (The harmless error standard applies when the judge cautioned the jury about the presence of a victim’s wife at counsel table, and determined that she did not make emotional displays, demonstrations, or statements.)

State v. Browning, Muskingum No. CA-77-18 (5th Dist. 1977) (Permission to sit at counsel table pursuant to Evid.R. 615(B) does not constitute error unless obvious advantage accrues to the prosecution contrary to Evid.R. 615.)

State v. Davis, 2008-Ohio-2 (Vouching occurs when a prosecutor “implies knowledge of facts outside the record or places his personal credibility in issue.”)

State v. Riccio, 2009-Ohio-5894 (1st Dist.) (The defendant has the burden of showing that the presence of the alleged victim compromised the defendant’s right to a fair trial.)

State v. Klusty, 2015-Ohio-2843 (5th Dist.) (A decision to allow a victim to remain in the courtroom during a trial is left to the discretion of the trial court.)

State v. Maley, 2013-Ohio-3452 (1st Dist.) (A generalized claim that a defendant was prejudiced by a victim’s presence in the courtroom is insufficient to show violation of a right to fair trial. The defendant must present “particularized evidence that the victim’s testimony will be so affected by the victim’s presence during the testimony of other witnesses that [the defendant’s] right to a fair trial would be violated.”)

Montgomery’s Argument

By allowing A.B. to sit at counsel table with the prosecutors throughout the entire trial, and introducing her to the jury as the state’s representative, both over his objection, Montgomery was denied his right to a fair trial. This particular case is a “he-said, she-said” case, and hinges on the credibility of the testimony of A.B. and Montgomery, and whether the sexual intercourse was consensual. The State, in designating A.B. as its representative and having her sit at counsel table, effectively vouches for A.B.’s testimony, which undermines Montgomery’s right to a fair trial.

In many instances, law enforcement officers involved in the case at hand are designated as the State’s representative, even if they are witnesses in the trial. These case agents are an exception to the sequestration rule, but because A.B.’s credibility is at issue in this case, and the fact that she was not able to assist the prosecution with its other witnesses, she does not fall into this exception.

The seating arrangement conveyed the message to the jury that the prosecutor was vouching for A.B. and her testimony. Some courts in other states have held that seating arrangements in the courtroom can vouch for witness credibility.

Under Ohio law, victims do have a right to be present and participate in the criminal process, but that right does not extend to sitting at counsel table as a representative of the State. The State and the victim have different interests, which do not necessarily align. Additionally, “Marsy’s Law” affords victims the right to “confer with the attorney for the government,” but this does not extend to a right to real-time consultation in the middle of trial, or the right to guide the prosecution.

A.B.’s presence at counsel table throughout the trial was inherently prejudicial. Her presence at counsel table did not serve a purpose beyond emotionally appealing to the jury. This could be found to be structural error.  But even if this Court does not find structural error, the Court should still find that seating A.B. at counsel table prejudiced Montgomery. Unlike State v. Bryant, the only reported Ohio case on point, the jury was not provided with instructions on how to evaluate A.B.’s placement. Because allowing A.B. to sit at counsel table with the prosecutors effectively bolstered the credibility of the State’s key witness against Montgomery and led to Montgomery’s conviction, Montgomery was denied his constitutional right to a fair trial, and the court of appeals decision should be reversed.

State’s Argument

A.B. undeniably had the right to be present in the courtroom during Montgomery’s trial. There is no specific law permitting the victim-witness to sit at counsel table, but there also is no specific law preventing it. The trial court’s decision to permit A.B. to sit at counsel table is within traditional courtroom protocol and practices for all Evid.R. 615(B) witnesses. The intent of Evid.R. 615(B) is to allow the victim to sit at counsel table without any further showing of necessity. “Marsy’s Law” affords victims the right to confer with the State’s counsel and is in the best position to do so while seated at counsel table throughout the trial.

Because A.B. was the State’s first witness, she did not have the opportunity to tailor her testimony to match other witnesses. And even if she had not been permitted to sit at counsel table, she still would have been permitted to sit in the courtroom and hear the other testimony. Additionally, A.B.’s presence was necessary for the presentation of the State’s case, especially on cross-examination of her family.

The State made no remarks that bolstered A.B.’s credibility, and therefore did not vouch for her testimony. A.B.’s presence at counsel table did not implicitly vouch for her credibility. Nothing on the record indicates that A.B.’s presence was prejudicial to Montgomery.

Because Montgomery cannot show actual prejudice, he must resort to structural error. But the victim’s presence at counsel table is not structural error. If the Court finds the victim-witness’s presence at counsel table is inherently prejudicial, the Court would effectively be abolishing Evid.R. 615(B). The impact of vouching requires a harmless error analysis. Harmless error review is appropriate where there is overwhelming evidence of guilt, as there is in this case. The appellate court’s decision should be affirmed. Alternatively, the Court should dismiss the case as improvidently allowed since the constitutional arguments presented before this Court were not raised before the lower courts.

Montgomery’s Proposition of Law Accepted for Review

An appellant is denied his right to a fair trial guaranteed by the 6th and 14th amendments to the United States Constitution when a trial court permits an alleged victim to be introduced to the jury during voir dire as representing the State of Ohio and permits them to sit with the Prosecutor at counsel table throughout the entire trial in front of the jury.

State’s Proposed Counter Propositions of Law

1. The trial court did not violate the defendant’s right to a fair trial by permitting the victim to be present at counsel table and being identified as the State’s representative.

2. The defendant’s constitutional right to a fair trial is not violated by the presence of a victim-witness at counsel table during all stages of a criminal proceeding.

Amicus in Support of Montgomery

Ohio Association of Criminal Defense Lawyers

The OACDL is an organization comprising approximately 700 attorneys committed to defending the rights of persons accused of the commission of a criminal offense.

The issue in this case is not whether the victim has the right to be present in the courtroom, as afforded by “Marcy’s Law,” but whether the victim has the right to sit at counsel table. Neither “Marsy’s Law,” R.C. 2930.09, nor Evid.R. 615 provides a right for the victim to sit at the prosecutor’s table. A.B.’s presence at counsel table amounted to the state vouching for A.B.’s credibility, and prejudiced Montgomery. This constituted structural error, which requires reversal. The appellate court’s decision should be reversed, and the case remanded for a new trial.

Student Contributor: Liam McMillin