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Criminal Law Casebook
Competency to Be a Witness
Competency to Be a Witness
Franklin County Criminal Law Casebook
Reproduced with permission from:
David L. Strait
Franklin County Public Defender Office
Evidence Rule 601 -- General Rule of Competency.
Evidence Rule 605 -- Competency of Judge as Witness.
Evidence Rule 606 -- Competency of Juror as Witness.
-- Competent witnesses.
-- Competency of witnesses.
-- Police officer incompetent as a witness if primarily assigned to traffic enforcement and not in uniform or using marked vehicle.
State v. Moore
, 190 Ohio App. 3d 102,
– Detective recruited a jail inmate to purchase Oxycontin from the defendant on two occasions. When she took the stand the defense asked that she submit to a drug test to determine her competency. The court refused. Affirmed. Ordering testing was a matter of judicial discretion and no indications such discretion was abused appear in the record. Compare
Prudential Insurance Company v. Hashman
(1982), 7 Ohio App. 3d 55, 58-59.
State v. Krueger
, 176 Ohio App. 3d 95,
– Grandson plundered grandmother‘s funds leading to theft charges. Grandmother had suffered a stroke that affected that part of the brain that controls the ability of a person to express her thoughts. Grandson wanted to call victim as a witness at trial. Court properly found her incompetent to testify under Evid. R. 601(A). She was not a person of "unsound mind" as she was neither retarded nor insane. Though she could receive just impressions, the stroke prevented her from relating them accurately. Court erroneously gave the grandson the burden of establishing competency as grandmother was over ten and not of unsound mind. That burden lies on that party challenging competency. However, error was harmless beyond a reasonable doubt.
State v. Bradley
(1989), 42 Ohio St. 3d 136 -- Paragraph one of the syllabus: "A trial judge, being in the best position to view and hear a witness and being in the best position to determine the witness' understanding of the events in question and his understanding of the nature of an oath, is to be given wide discretion in determining that witness' competence to testify."
State v. Savage
(1987), 30 Ohio St. 3d 1 -- Syllabus: "A witness is not 'unavailable' under Evid. R. 804(A)(1) when he is ruled incompetent to testify under Evid. R. 601(B)." Same principle would seem to apply whenever a witness has been ruled incompetent.
Persons of Unsound Mind
State v. Marshall
, 191 Ohio App. 3d 444,
– Probate Court had named mother/defendant as guardian for 33-year old daughter diagnosed as bipolar. Daughter claimed she was injured in an argument about how many cigarettes she smoked. Trial court properly found the daughter competent to testify. Standard for Probate Court guardianship is whether a person is so impaired as a result of mental or physical illness or disability, or as a result of chronic substance abuse that the person is incapable of taking proper care of he person’s self, property, family, or others. Competency to be a witness is determined by a substantially different standard premised on being incapable of receiving just impressions of facts and transactions. Party opposing testimony has the burden of establishing incompetency.
State v. Kinney
(1987), 35 Ohio App. 3d 84 -- Headnote 1: "A trial court has the obligation to determine whether a person of unsound mind is competent as a witness. Evid. R. 601(A) and
. Where the competence of a mentally retarded girl is clearly called into question before she testifies, the trial court's failure to inquire into her capacity to recite just impressions of the facts and to relate them truly amounts to plain error."
State v. Bradley
(1989), 42 Ohio St. 3d 136 -- At pp. 140-141 the court finds a person of unsound mind may still be qualified to testify. Also see
State v. Wildman
(1945), 145 Ohio St. 379.
Prudential Insurance Co. v. Hashman
(1982), 7 Ohio App. 3d 55, 58 -- "...(A) person whose mind is so beclouded by the use of intoxicants that he could not relate with truthfulness and accuracy his observation or understand the nature of his oath ought not be allowed to testify at that time since such a person would necessarily be of 'unsound mind'..." Appropriate inquiry should be conducted.
State v. Burnette
(1998), 125 Ohio App. 3d 278 -- Excited utterances by an adult witness of unsound mind are admissible if the ability to perceive and recall accurately, and to communicate basic information can be demonstrated. Other elements of competency do not have to be established. With regard to statements to physician for purposes of treatment, court should look to the circumstances surrounding the making of the statement and the subject's ability to recall over the relevant time frame between the events and consultation.
State v. Muttart
, 116 Ohio St. 3d 5,
-- Syllabus: "Regardless of whether a child less than ten years old has been determined to be competent to testify pursuant to Evid.R. 601, the child's statements may be admitted at trial as an exception to the hearsay rule pursuant to Evid.R. 803(4) if they were made for the purposes of medical diagnosis or treatment." The issue remains whether statements were actually made in relation to diagnosis and treatment.
Akron v. Deem
(1999), 135 Ohio App. 3d 523 -- A finding that a child is incompetent to testify mandates the exclusion of his or her out of court statements offered under Evidence Rule 807 concerning child statements in abuse cases. Also see
State v. Street
(1997), 122 Ohio App. 3d 79, 85.
In re Joshua R.C.
, Erie App. No. E-03-015,
-- The competency of a child under ten to testify is not a matter to be judged in relation to age. Merely responding in a manner typical of a four year old is not enough. When questioned by the judge, the victim tended to respond by asking questions or making comments unrelated to the court's question.
State v. Anderson
, 154 Ohio App. 3d 789, ¶ 62 -- A child witness may be found competent to testify even though the answers to some questions are wrong, and some indicate an imagination.
State v. Frazier
(1991), 61 Ohio St. 3d 247 -- Syllabus: "In determining whether a child under ten is competent to testify, the trial court must take into consideration (1) the child's ability to receive accurate impressions of fact or to observe acts about which he or she will testify, (2) the child's ability to recollect those impressions or observations, (3) the child's ability to communicate what was observed, (4) the child's understanding of truth and falsity and (5) the child's appreciation of his or her responsibility to be truthful." For earlier cases on qualification, see
State v. Wilson
(1952), 156 Ohio St. 525;
State v. Lee
(1983), 9 Ohio App. 3d 282;
State v. Pershin
(1988), 62 Ohio App. 3d 405, 409;
State v. Workman
(1984), 14 Ohio App. 3d 385. Also see
State v. Ward
(1992), 86 Ohio App. 3d 4;
Schulte v. Schulte
(1994), 71 Ohio St. 3d 41.
State v. Clark
(1994), 71 Ohio St. 3d 466 -- Syllabus: "(1) Under the plain meaning of Evid. R. 601(A), a child witness who is ten years of age or older at the time of trial, but who was under the age of ten at the time an incident in question occurred, is presumed competent to testify about the event. (
Huprich v. Paul W. Varga & Sons
, 3 Ohio St. 2d 87...overruled.) (2) A trial judge, in the exercise of his or her discretion, may chose to conduct a voir-dire examination of a child witness who is ten years of age or older if the judge has reason to question the child's competency. The decision not to voir-dire a child under such circumstances will be viewed under an abuse-of-discretion standard. In such circumstances, absent a compelling reason to act otherwise, the failure to conduct a voir-dire examination of a child witness who is ten years of age or older at the time of trial will not constitute reversible error."
State v. Said
(1994), 71 Ohio St. 3d 473 -- (1) Syllabus: "A hearing to determine the competency of a potential child witness pursuant to Evid. R. 601 must be recorded pursuant to Crim. R. 22." (2) For the statement of a child victim to be admissible under Evid. R. 807, the court must first determine whether the child was competent as a witness at the time the statement was made.
State v. Ulis
(1993), 91 Ohio App. 3d 656, 667 -- When competency is at issue, determination must be made based on personal observation of the child, and may not be based on prior finding by a different judge, or assessment by others.
State v. McMillan
(1989), 62 Ohio App. 3d 565, 568 -- Appearance of impropriety is created when the judge withdraws to determine the competency of a child witness without the presence of the defendant or counsel.
State v. Brown
(1988), 48 Ohio App. 3d 286 -- Headnote: "The rights to confrontation and due process of a defendant charged with gross sexual imposition are not violated by his forced absence from an in camera competency examination of the child victim-witness where no substantive testimony was given by that prospective witness." (Counsel was present.) Also see
Kentucky v. Stincer
(1987), 482 U.S. 730;
State v. Morgan
(1986), 31 Ohio App. 3d 152 -- While it is error to permit a child under age 10 to testify without first conducting a voir dire examination to determine whether he or she is competent to testify, the error may be harmless when the record shows sufficient indicia of the child's ability to receive just impressions of facts, to relate facts truthfully, and to understand the consequences of telling falsehoods. Counsel had asked for voir dire or challenges competency.
State v. Cobb
(1991), 81 Ohio App. 3d 179, 182-183 -- Court is not under a general duty, when determining the competency of a child witness, to make inquiry based upon the nature of the specific testimony the child is expected to offer. Counsel must submit questions in such circumstances before can claim such questioning was required.
State v. Mayhew
(1991), 71 Ohio App. 3d 622, 629 -- No abuse of discretion finding a five year old competent though she had been prodded by defense counsel into acknowledging it might be proper to lie in morally complex situations. Also see
State v. Kirk
(1987), 42 Ohio App. 3d 93.
State v. Miller
(1988), 43 Ohio App. 3d 44 -- For statements made by a child to a physician for treatment to be admissible under Evid. R. 803(4), it is not necessary that the child first be found competent as a witness pursuant to Evid. R. 601(A).
State v. Brown
, 115 Ohio St. 3d 55,
-- In a capital case it was disputed whether a marriage existed between the defendant and the only eyewitness. Counsel was ineffective for not requesting the judge formally decide whether a marriage existed, and if it did, proceeding to have the wife advised pursuant to Evid. R. 601 that she was not competent to testify until she made a deliberate choice to do so. See Fn. 2 concerning the applicability of spousal privilege which is a separate issue.
State v. Rahman
(1986), 23 Ohio St. 3d 146 -- Syllabus: "Although a spouse may be competent to testify in a criminal trial,
confers a substantive right upon the accused to exclude privileged spousal testimony concerning a confidential communication made or act done during coverture unless a third person was present or one of the other specifically enumerated exceptions contained in the statute is applicable." For the rule in federal courts compare
Trammel v. United States
(1980), 445 U.S. 40.
State v. Mowery
(1982), 1 Ohio St. 3d 192 -- Defendant maintained wife could not testify concerning shooting of man he found he in compromising circumstances with. Paragraph one of the syllabus: "
and Evid. R. 601 do not render the spouse of an accused incompetent to testify against the accused with respect to a crime committed against a third person, when such crime is part of one continuous transaction or happening which culminates in offenses against the third party and the spouse. Also see
State v. Fewerwerker
(1985), 24 Ohio App. 3d 27.
State v. Adamson
(1995), 72 Ohio App. 3d 431 -- Syllabus: "Under Evid. R. 601(B), a spouse remains incompetent to testify until she makes a deliberate choice to testify, with knowledge of her right to refuse. The trial judge must take an active role in determining competency, and must make an affirmative determination on the record that the spouse has elected to testify." Case distinguishes competency and spousal privilege.
State v. Phelps
(1995), 100 Ohio App. 3d 187 -- State wished to call codefendant wife in a homicide case. Finding a common law marriage existed, the trial court sustained a motion in limine and the prosecutor appealed. Affirmed. Islamic marriage ceremony and other indicia supported finding marriage existed. While testimony concerning acts done in the presence of a third person (the deceased) is not privileged, the wife is not competent to be a witness pursuant to Evid. R.
Mentor Lagoons v. Rubin
(1987), 31 Ohio St. 3d 256 -- Syllabus: "(1) DR 5-102(A) does not render an attorney incompetent to testify as a witness in a proceeding in which he is representing a litigant. When an attorney seeks to testify, his employment as counsel goes to the weight, not the competency, of his testimony. (2) When an attorney representing a litigant in a pending case requests permission or is called to testify in that case, the court shall first determine the admissibility of the attorney's testimony without reference to DR 5-102(A). If the court finds that the testimony is admissible, then that attorney, opposing counsel, or the court sua sponte, may make a motion requesting the attorney to withdraw voluntarily or be disqualified by the court from further representation in the case. The court must then consider whether any of the exceptions to DR 5-102 are applicable and, thus, whether the attorney may testify and continue to provide representation. In making these determinations, the court is not deciding whether a Disciplinary Rule will be violated, but rather preventing a potential violation of the Code of Professional Responsibility."
State v. Coleman
(1989), 45 Ohio St. 3d 298 -- Paragraph two of the syllabus: "A prosecuting attorney should avoid being a witness in a criminal prosecution, but where it is a complex proceeding and substitution of counsel is not practical, and where the attorney so testifying is not engaged in the active trial of the cause and it is the only testimony available, such testimony is admissible and not in violation of DR 5-102.
State v. Schiebel
(1990), 55 Ohio St. 3d 71 -- Paragraph two of the syllabus: "Where an attorney is told by a juror about another juror's possible misconduct, the attorney's testimony is incompetent and may not be received for the purpose of impeaching the verdict or for laying a foundation of evidence aliunde."
State v. Mabry
(1982), 5 Ohio App. 3d 13 -- Headnote 7: "If defense counsel believes that he 'ought to' be called as a witness on behalf of his client, he must withdraw as counsel in order to appear as a witness in the case, unless he qualifies under any of the exceptions noted in DR 5-101(B)(1) through (4)."
Cleveland v. Watson
, Cuyahoga App. No. 82162,
-- Airport security officer cited an air traffic controller for driving recklessly in a parking lot at Cleveland Hopkins Airport. Because the defense failed to establish through cross-examination that the officer was engaged in traffic enforcement, and because the officer approached the defendant on foot, he was competent to testify, even though he was in plain clothes.
Dayton v. Adams
(1967), 9 Ohio St. 2d 89 -- Paragraph two of the syllabus: "A municipal police officer, who is on duty exclusively or for the main purpose of enforcing motor vehicle or traffic ordinances of the municipality, providing the offense is punishable as a misdemeanor, is incompetent to testify as a witness in any prosecution against a person he arrests or assists in arresting for the violation of the motor vehicle or traffic ordinances of the municipality, if such officer, at the time of the arrest, was using a motor vehicle not marked in accordance with
, Revised Code."
State v. Heins
(1995), 72 Ohio St. 3d 504 -- Syllabus: "A State Highway Patrol aircraft that is operated for the purpose of conducting speed checks is not a 'motor vehicle,' and therefore does not fall within the purview of Evid. R. 601(C) and its companion statutes,
." Also see
State v. Foster
(1992), 84 Ohio App. 3d 214.
State v. Clark
(1983), 10 Ohio App. 3d 308, 311 -- Evid. R. 601(D) excludes testimony concerning events both before and after arrest.
Brookville v. Louthan
(1982), 3 Ohio Misc. 2d 1 -- Headnote 1: "An 'off duty' police officer comes on duty for the specific purpose of enforcing the traffic laws at the point in time when he begins to act like a police officer and exercises his power as a police officer."
State v. Huth
(1986), 24 Ohio St. 3d 114 -- Syllabus: "The phrase 'on duty exclusively or for the main purpose of enforcing...[motor vehicle traffic] laws' in
and similar language in Evid. R. 601(C) refer to the officer's main purpose for his whole period of duty and not to his duty during the apprehension and arrest of the suspect. (
Columbus v. Stump
, 41 Ohio App. 2d 81, approved.)"
Hamilton v. Jacobs
(1995), 100 Ohio App. 3d 724 -- Off duty deputy saw motorist operating erratically and followed him to the end of his drive, then asked him to stay put while she summoned other officers. Held that she was not on duty for the purpose of enforcing traffic laws, and was competent to testify.
Columbus v. Finlay
(November 19, 1991) Franklin Co. App. No. 91AP-621, unreported (1991 Opinions 5380) -- Officer competent to testify where he did not use his personal unmarked vehicle to stop the defendant, but was in uniform when he approached her after she had parked at her residence. Also see
Columbus v. Murchison
(1984), 21 Ohio App. 3d 75;
State v. Whitmer
(September 28, 1993), Franklin Co. App. Nos. 93AP-559 through 564, unreported (1993 Opinions 4188). Compare
State v. Butler
(1991), 77 Ohio App. 3d 143 where sheriff was off duty, out of uniform and in unmarked vehicle and approached driver after he stopped at a carryout.
State v. Rau
(1989), 65 Ohio App. 3d 478 -- It is the defendant's burden to establish that the officer was not in uniform or not in a marked vehicle if he seeks to disqualify the officer as a witness.
State v. Kaplan
(1994), 74 Ohio Misc. 2d 55 -- For purposes of officer's competency to testify, a Mustang, with a removable oscillating light, but no other fixed lights, normal as opposed to police department license plates, and lettering identifying the vehicle as a police vehicle in "reverse weeding" and blended with a racing stripe, did not meet the minimum requirements for a marked police car. Compare
Parma Heights v. Kaplan
(1998), 92 Ohio Misc. 2d 67 where the same court finds additional lights and better marking sufficient.
Jury Matters/Aliunde rule
Wicker v. Cleveland
(1948), 150 Ohio St. 434 -- syllabus: "In the absence of evidence aliunde, the verdict of a jury may not be impeached by the testimony of a juror concerning the alleged misconduct of a member thereof." Examples of evidence aliunde (from an outside source): Notebook kept by juror, now in possession of judge -
State v. Kehn
(1977), 50 Ohio St. 2d 11, 18-20; Testimony of juror's spouse concerning their independent investigation -
Diehl v. Castle Co.
(1971), 26 Ohio St. 2d 249. For further discussion of the aliunde rule see
Cameron v. Alba Ski & Sport Hut
(August 7, 1986), Franklin Co. App. No. 85AP-11018, unreported (1986 Opinions 2036);
Tanner v. United States
(1987), 483 U.S. 107.
Highfield v. Liberty Christian Academy
(1987), 34 Ohio App. 3d 311, 314 -- Only after evidence from a source other than a juror has been introduced may a juror testify. Also see
Nickell v. Gonzalez
(1986), 34 Ohio App. 3d 364.
State v. Rudge
(1993), 89 Ohio App. 3d 429, 436-439 -- Mistrial was declared between the guilt and penalty phases of a capital trial based on information received from an alternate juror indicating prejudgment or hostility by two members of the panel during the early stages of the trial. Aliunde rule held not to apply as went to the partiality of the jurors and not to their discussions during deliberation. Also, a present, but non-deliberating, alternate is said not to be a member of the trial jury for purposes of aliunde rule.
David L. Strait
Copyright © Franklin County Public Defender and David L. Strait, 2015
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