Loher v. Thomas: a Criminal Defendant's Right to "wait-and-see" What Other Defense Witnesses Say Before Taking the Witness Stand

• Publication year: 2016
• Citation: Vol. 20 No. 12

Loher v. Thomas: A Criminal Defendant's Right to "Wait-And-See" What Other Defense Witnesses Say Before Taking the Witness Stand

by Kenji M. Price

Trial courts have broad discretion to make a variety of decisions regarding the overall management of a criminal or civil trial. But can a trial court's exercise of that discretion trump a defendant's right to make an informed choice about whether to take the witness stand in a criminal case? That question worked its way from the Circuit Court of the First Circuit, State of Hawaii, to the U.S. Court of Appeals for the Ninth Circuit following the trial of Frank Loher.

In August 1999, Loher was charged with first-degree attempted sexual assault and attempted kidnapping. Loher v. Thomas, 23 F. Supp. 3d 1182, 1186-87 (D. Haw. 2014) ("Loher"). His trial began at 9:00 a.m. on November 14, 2000, and the government rested its case approximately five hours later.¹ Loher's attorney asked the court for a continuance to November 16th—the next trial day— because he was unsuccessful in his efforts to get Loher's witnesses to come to court to testify in Loher's defense on November 14, 2000. Id. at 1187. Noting that Loher's attorney had previously informed the court that his client would testify, and apparently taking the view that Loher's attorney should know what Loher's witnesses would say on the witness stand, the court denied the request. Id. at 1188. The court also told Loher's attorney that Loher could testify on November 14th, or not at all. Id. Loher testified and was later convicted of attempted sexual assault. Id. at 1189.

After unsuccessfully challenging his conviction in state court, Loher filed a petition for habeas relief in federal court, arguing, among other things, that the Circuit Court violated his right to due process under the Fourteenth Amendment to the U.S. Constitution and his right against self-incrimination under the Fifth Amendment to the U.S. Constitution, as well as Brooks v. Tennessee, 406 U.S. 605 (1972).² Id. at 1186. The magistrate judge recommended denying Loher's petition on these grounds.³ Id.

The District Court's Decision

The U.S. District Court disagreed, concluding that the Circuit Court's actions were "contrary to" and "an unreasonable application of"⁴ the U.S. Supreme Court's holding in Brooks. Id. at 1195. In Brooks, the Supreme Court held that a Tennessee statute that required a criminal defendant to testify before other defense witnesses to prevent him from "being influenced by other testimony," 406 U.S. at 607, violated the Fifth and Fourteenth Amendments to the U.S. Constitution, id. at 612-13. The District Court ruled that Loher's case was on all fours with Brooks, and that the Circuit Court's decision essentially...