K.M.J. v. Captain

It is legal error for a trial court to deny cross-examination of an opponent witness.

Respondent appealed the entry of an order for a temporary restraining order. Respondent assigned error to the trial court’s denial of an opportunity to question the only witness against him, Petitioner. Respondent was not represented by counsel in the trial court. During the outset of the hearing, the trial court announced it would not allow parties to ask questions of each other. The trial court allowed parties "to respond" and make statements, but did not ask questions on behalf of parties. Respondent did not object and so the error was not preserved. Respondent asked the Court to review the assignment of error anyway under plain error review. Under the two-step plain error review analysis, "the error must be apparent on the face of the record." Even if error was committed, the Court must "decide to exercise . . . discretion to reach the error." Under step one, it was apparent on the record that the trial court did not give Respondent the opportunity to cross-examine Petitioner. Step two provides the Court the ability to exercise discretion to reach the unpreserved error. Balancing the "gravity of error" against the competing interests of the parties, and the additional burden of the trial court to allow cross-examination, Respondent's fundamental right to cross examination to ensure fair judicial proceedings was not outweighed by other factors. A trial court has limited discretion to control cross-examination, but cannot completely deny that right; doing so is a legal error. Reversed and remanded.