Expert Witnesses and Opinion Testimony


Franklin County Criminal Law Casebook

Reproduced with permission from:
Timothy E. Pierce and the Franklin County Public Defender Office

Evidence Rule 701 -- Opinion Testimony by Lay Witnesses.
Evidence Rule 702 -- Testimony by Experts.
Evidence Rule 703 -- Bases of Opinion Testimony by Experts.
Evidence Rule 704 -- Opinion on Ultimate Issue.
Evidence Rule 705 -- Disclosure of Facts or Data Underlying Expert Opinion.

Qualifications; Foundation

State v. Troisi, 179 Ohio App. 3d 326, 2008-Ohio-6062 – On a tip, police raided a grange hall where knock-off fashion merchandise was being sold. Defendant was convicted of trademark counterfeiting. (1) In the view of the majority, an element of the offense was that the trademark affixed to the knock-off was identical or substantially identical to a trademark registered with the United States trademark and patent office. Proof of this element required certified copies of the authentic trademarks or other evidence of the trademarks at issue as registered. (2) Prosecution was largely under the direction of a Cleveland police sergeant, also employed as the "regional director" of a private company specializing in the investigation of intellectual property crimes, such as trademark counterfeiting. He was the state‘s expert witness. Court views introduction of proof of authentic trademarks as a necessary part of the foundation for his testimony. (3) Defendant was also convicted of possessing criminal tools, specifically the car she used to bring the merchandise to the grange hall, and the totes used to carry it inside. This conviction is also reversed because there was insufficient proof on the counterfeiting charge. Affirmed, State v. Troisi, 124 Ohio St. 3d 404, 2010-Ohio-275 – Syllabus: “A trademark-investigation expert’s testimony that he is aware that certain trademarks are registered but that he has never personally viewed the trademark-registration documents is insufficient to prove by itself that the trademarks are registered on the principal register in the United States Patent and Trademark Office as required for a conviction under R.C. 2913.34.”
State v. Craig, 110 Ohio St. 3d 306, 2006-Ohio-4571, ¶73-80 -- Deputy coroner who conducted the autopsy retired. Elected coroner testified at trial. There is no unavailability requirement for presentation of expert testimony. Nor need the best witness be called. The autopsy report was properly admitted as a business record. As to Crawford objections to the conclusory portions of the report, and whether or not such are testimonial, Ohio sides with the majority finding confrontation rights are not violated.
State v. Hartman, 93 Ohio St. 3d 274, 285-287, 2001-Ohio-1580 -- When the state fails to formally tender a witness as an expert, the failure to object to the qualifications of the witness waives all but plain error.
State v. Franklin, 164 Ohio App. 3d 758, 2005-Ohio-6854 -- Distance to a school in a drug case was measured using satellite imaging software. The city geographical information specialist knew how to use the software but was not an expert on how it had been programmed. In the court's view global imaging devices are widely used and considered reliable, so pursuant to Evidence Rule 702 it is not scientific evidence requiring expert testimony.
State v. Maupin (1975), 42 Ohio St. 2d 473, 479 -- "The qualification of an expert is a matter for determination by the court on the facts, and rulings with respect to such matters will ordinarily not be reversed unless there is a clear showing that the court abused its discretion."
Kitchens v. McKay (1987), 38 Ohio App. 3d 165 -- Before an expert witness may testify, a threshold determination must be made under Evidence Rule 104(A) whether he qualifies as an expert. On review, the standard is whether the trial court's determination as to qualification was an abuse of discretion.
State v. Holt (1969), 17 Ohio St. 2d 81 -- Testimony of an expert witness as to the results of scientific testing must meet the standard or "reasonable scientific certainty" to be admissible. Also see State v. Hunsberger (December 3, 1974), Franklin Co. App. No. 74AP-351, unreported (1974 Opinions 3219, 3227-3229).
Miller v. Bike Athletic Supply Co. (1998), 80 Ohio App. 3d 607 -- Paragraph one of the syllabus: "A trial court's role in determining whether an expert's testimony is admissible under Evid. R. 702(C) focuses on whether the opinion is based upon scientifically valid principles, not whether the expert's conclusions are correct or whether the testimony satisfies the proponent's burden of proof at trial."
State v. Akwal (1996), 76 Ohio St. 3d 324, 331-332 -- Court did not abuse its discretion excluding testimony of psychologist not licensed in Ohio. Had testimony been admitted, lack of license would have gone to weight. When excluded, issue is abuse of discretion.
State v. Jones (1984), 9 Ohio St. 3d 123 -- If testimony is based on records not prepared by the expert witness, records must be admitted into evidence. Syllabus: "Pursuant to Evid. R. 703, facts or data upon which an expert bases an opinion must be those perceived by him or admitted into evidence at the hearing. (State v. Chapin, 67 Ohio St. 2d 437, followed.)" Also see Kramer v. Coastal Tank Lines (1971), 26 Ohio St. 2d 59; State v. Schell (1984), 13 Ohio App. 3d 313, 318 (defense expert in an OMVI case).
State v. Gumm (1995), 73 Ohio St. 3d 413, 426-427 -- At the penalty phase of a death penalty trial the defense presented the testimony of a psychologist. It was not prosecutorial misconduct for the prosecutor to move to strike the psychologist's testimony unless a packet of materials provided him by the defense was admitted into evidence, though the packet related instances of cruelty to animals and an alleged attempted rape.
State v. Brown (1982), 7 Ohio App. 3d 113 -- It is erroneous to instruct the jury that they must find any facts on which an expert opinion was based to have been established by a preponderance of the evidence.

Admissibility; Basis and Scope of Testimony

Last updated 1/30/2018
State v. Walls, 6th Dist. Nos. E-16-027, E-16-028, 2018-Ohio-329. In child rape case, lower court committed reversible error under Crim. R. 16(K) when it permitted prosecution’s child rape expert to testify to matters not contained in his report, namely on the subjects of sexual grooming, delayed disclosure, and recantation. The appeals court observed “it was not until the state’s opening statement that there was any suggestion that [the doctor’s] testimony would exceed the scope of his report. There was no earlier opportunity, therefore, for Walls to seek the court’s intervention. This is precisely the type of trial-by-ambush strategy that Crim. R. 16(K) was enacted to prevent. Upon learning of the proposed testimony, defense counsel properly objected at the earliest possible point, effectively preserving his objections for our review. Accordingly, Walls did not waive his objections to the Crim. R. 16(K) violation. It was error to allow [the doctor’s] testimony.” Walls at ¶ 39 (bracketed material added).
State v. Helke, 2nd Dist. Montgomery No. 26672, 2015-Ohio-4402
In speeding case, State failed to provide a proper foundation for the scientific reliability of laser evidence, and the trial court failed to take judicial notice of reliability pursuant to recognized methods for doing so.
State v. Brady, 119 Ohio St. 3d 375, 2008-Ohio-4493 – Attorney was appointed as an expert witness in a kiddie porn prosecution. The FBI raided his home and seized his laptop and the digital image exhibits was preparing for use at trial. Trial court sustained a motion to dismiss. Court of Appeals affirmed. Reversed. Court could consider matters beyond the face of the indictment in ruling on motion to dismiss premised on claim federal child pornography statutes deprived the defendant of his right to expert assistance, since the motion could be decided without deciding the general issue. Expert could do his work at the prosecutor‘s office.
State v. Lang, 129 Ohio St. 3d 512, 2011-Ohio-4215, ¶81-90 – Court adhered to its decision in State v. d’Ambrosio (1993), 67 Ohio St. 3d 185 that expert opinion in criminal cases may be expressed in terms of possibilities, while the more demanding standard of probability is required in civil cases.
Beard v. Merida Huron Hospital, 106 Ohio St. 3d 237, 2005-Ohio-4787 -- Syllabus: "Expert witnesses are permitted to testify that their opinions are based, in part, on their review of professional literature."
State v. Franklin, 97 Ohio St. 3d 1, 2002-Ohio-5304, ¶63-64 -- While R.C. 2945.371, limiting use of defendant's statements, applies only to court appointed examiners, statements to other examiners remain hearsay, and a limiting instruction that they may not be considered for the truth of the matters asserted is appropriate.
In re Bennett (1999), 134 Ohio App. 3d 699 -- Investigator employed by the prosecutor's office could be qualified as an expert in the identification of marijuana, despite lack of a background in chemistry. R.C. 2925.51 pertaining to the admissibility of lab reports unless the defense demands the person performing the test testify does not require all testing be done by a qualifying lab.
State v. Bates, Allen App. No. 1-03-83, 2004-Ohio-2219 -- Lab report omitted notice that the accused is entitled to demand the testimony of the person signing the report. Omission rendered the report inadmissible.
State v. Rangel (2000), 140 Ohio App. 3d 291 -- Expert testimony wasn't necessary to establish that a social security card and a green card were false. Majority finds a BMV clerk had adequate training and experience to testify as to authenticity.
State v. Cress, 162 Ohio App. 3d 46, 2005-Ohio-4620 -- Allowing the testimony of a supposed expert on domestic violence, who did not know the parties, was prejudicial error. There was no charge of domestic violence, and it was irrelevant why the victim preferred that burglary, intimidation, extortion and retaliation charges not be pursued.
State v. Solomon (1991), 59 Ohio St. 3d 124 -- Syllabus: "Where an expert bases his opinion, in whole or in major part, on facts or data perceived by him, the requirement of Evid. R. 703 has been satisfied." Also see State v. Underwood (1991), 73 Ohio App. 3d 834.
Beavercreek Local Schools v. Basic, Inc. (1991), 71 Ohio App. 3d 669 -- Expert may testify as to his own conclusions but not as to the collective opinions of those attending a symposium, which is inadmissible hearsay.
State v. Williams (1996), 74 Ohio St. 3d 569 -- Paragraph two of the syllabus: "Whether a person has a 'significant history of prior criminal convictions' under R.C. 2929.04(B)(5) is a question for the jury and is specifically outside the province of expert testimony."
State v. Walsh (December 18, 1979), Franklin Co. App. No. 78AP-837, unreported (1979 Opinions 3992, 4009) -- While in some circumstances a lawyer may testify as to the meaning of words used as terms of art in a document, it is error to allow such testimony as to the construction of the document. It is the duty of the court to do so, and by allowing expert testimony the court, in effect, allowed the witness to instruct the jury as to the law.
State v. Simms (1983), 9 Ohio App. 3d 302 -- Testimony by law school professor that the plea agreement with prosecution witness was illegal was properly excluded. Issue is motive to fabricate testimony, not legality of agreement.
State v. Decker (1986), 28 Ohio St. 3d 137 -- While the testimony of a defense attorney as an expert witness is not foreclosed in a post conviction action alleging ineffective assistance of counsel, it is properly excluded when the claim is otherwise refuted by the facts of the case.
State v. Buell (1986), 22 Ohio St. 3d 124 -- Syllabus: "(1) The expert testimony of an experimental psychologist concerning the variables or factors which may impair the accuracy of a typical eyewitness identification is admissible under Evid R. 702. (2) The expert testimony of an experimental psychologist regarding the credibility of the testimony of a particular witness is inadmissible under Evid. R. 702, absent a showing that the witness suffers from a mental or physical impairment which would affect the witness' ability to observe or recall events.
State v. Sims (1981), 3 Ohio App. 3d 321, 324-326 -- Expert testimony as to the general unreliability of eyewitness identifications is not admissible unless the court is persuaded it would assist the trier of fact in assessing the credibility of the witness in the particular case before it. Examples of where such testimony would be beneficial are organic illnesses, psychiatric disorders or mental impairments, which would diminish the ability of the witness to accurately perceive, remember or relate the events testified to. (Impliedly modified by State v. Buell.)
State v. Stowers (1998), 81 Ohio St. 3d 260, 261 -- "An expert witness's testimony that the behavior of an alleged child victim of sexual abuse is consistent with behavior observed in sexually abused children is admissible under the Ohio Rules of Evidence." See dissent.
State v. Boston (1989), 46 Ohio St. 3d 108 -- Syllabus: "An expert may not testify as to the expert's opinion of the veracity of the statements of a child declarant." Also see State v. Hamilton (1991), 77 Ohio App. 3d 293; State v. Dever (1992), 64 Ohio St. 3d 401.
State v. Davis (1989), 64 Ohio App. 3d 334 -- Child sexual abuse accommodation syndrome is not accepted as a means of diagnosing whether or not a child has been abused, nor may it be used to bolster the credibility of a child witness. Also see State v. Whitt (1991), 68 Ohio App. 3d 752.
State v. McMillan (1990), 69 Ohio App. 3d 36, 49-52 -- It is improper to permit expert testimony concerning common characteristics of child abusers.
State v. Price (1992), 80 Ohio App. 3d 35, 44 -- Testimony of expert on child sexual abuse was inadmissible where it was merely offered to bolster the credibility of the victim and her brother, and did not assist the trier of fact to understand the evidence or to determine a fact in issue. Also see State v. Eben (1992), 81 Ohio App. 3d 341; State v. Yarber (1995), 102 Ohio App. 3d 185, 195 (plain error found).
State v. Smith (1992), 84 Ohio App. 3d 647 -- Testimony of an expert witness concerning behavior traits of pedophiles was improperly admitted as a part of the state's case in chief. The effect of the testimony was to show that the defendant acted in accordance with an undesirable character trait.
State v. Tomlin (1992), 63 Ohio St. 3d 724 -- Syllabus: In order to assist the trier of fact in determining whether an individual is a 'chronic alcoholic' pursuant to R.C. 2923.13(A)(4), (weapon under a disability), a medical or osteopathic physician, psychologist, or any health care professional who has been specifically trained or is experienced in providing treatment for or diagnosing alcoholism, may testify as an expert witness where the trial court has preliminarily determined, under the facts of the particular case pursuant to Evid. R. 104(A), that the proposed witness is qualified to so testify. (State v. Soke [1989], 65 Ohio App. 3d 590, disapproved.)"
St. Paul Fire & Marine Ins. Co. v. Baltimore & Ohio R.R. Co. (1935), 129 Ohio St. 401 -- Paragraph one of the syllabus: "Evidence of experiments performed out of court, tending to prove or disprove a contention in issue, is admissible if there is a substantial similarity between conditions existing when the experiments are made and those existing at the time of the occurrence in dispute; dissimilarities, when not so marked as to confuse and mislead the jury, go to the weight rather than the admissibility of the evidence." Also see State v. Zerla (December 22, 1994), Franklin Co. App. No. 93APA09-1304.
State v. McFadden (1982), 7 Ohio App. 3d 215, 217 -- "For out-of-court experiments to be admissible it is not necessary that they be performed under identical conditions to those existing at the time of the occurrence in question; it is sufficient if there is a substantial similarity."
State v. Dehner (1991), 74 Ohio App. 3d 431 -- In an OMVI prosecution replicate test results were properly excluded where it was not established that experimental conditions matched conditions at time of breath test. Issue was retention of alcohol by a dental plate. Compare State v. English (1991), 77 Ohio App. 3d 371.
State v. Delaney (September 2, 1993), Franklin Co. App. No. 92AP-1408, unreported (1993 Opinions 3681) -- It was error to permit the state to call an expert witness retained by the defense as a rebuttal witness, as there had been no waiver of the attorney-client privilege. State v. Richey (1992), 64 Ohio St. 3d 353 distinguished on the basis counsel there failed to object.
State v. Karns (1992), 80 Ohio App. 3d 199 -- Building contractor was prosecuted for theft based on failure to complete work contracted for on several projects. State properly allowed to call another contractor as an expert witness to establish low bids could not have covered cost of work, establishing defendant's intent not to carry out contracts.
State v. Robles (1989), 65 Ohio App. 3d 104, 107-111 -- Testimony as to the percentage of the population having the same blood type as the victim was improperly admitted where witness did not have personal knowledge of the data underlying his opinion and where the FBI report which was the basis for his opinion had not been admitted into evidence.


State v. Ross, Franklin App. No. 02AP-898, 2003-Ohio-3338, ¶ 83-91 -- Trial court erroneously prevented cross of deputy coroner using reference to learned materials.
Ohio Dept. of Mental Health v. Milligan (1988), 39 Ohio App. 3d 178, 179 -- "Generally, a party in attempting to show bias on the part of an expert witness, may inquire as to whether said expert is to be paid a fee, but inquiry into the amount of the fee is improper." Compare dissent and State v. Ferguson (1983), 5 Ohio St. 3d 160, 165. Also see Annotation, Cross-examination of expert witness as to fees, compensation and the like, 33 A.L.R. 2d 1170.
In re Webb (1989), 64 Ohio App. 3d 280, 286 -- That a psychologist was not licensed at the time he administered tests goes to weight but not admissibility.
Calderon v. Sharkey (1982), 70 Ohio St. 2d 218 -- The extent to which a medical expert may be cross-examined concerning his bias and pecuniary interest may be limited through application of Evid. R. 403(B).
Ramage v. Central Ohio Emergency Services, Inc. (1992), 64 Ohio St. 3d 97, 110 -- "We, therefore, hold that a party may, during the direct examination of its expert witness, inquire whether that expert agrees with the opinions expressed in publications by the adverse party's (uncalled) expert witness."
Freshwater v. Scheidt (1999), 86 Ohio St. 3d 260 -- Syllabus: "If an expert witness relies upon published medical literature in forming his or her opinion, or if the expert presents testimony sufficient to establish that the literature is reliable authority, or the literature is part of the expert's own publication, statements contained in the literature can be used for purposes of impeachment. The requisite reliance upon published medical literature or its authoritative nature can be established without an express acknowledgment by the testifying expert that he or she had relied upon the literature or that it is authoritative...." Also see State v. DePew (1999), 136 Ohio App. 3d 129.
State v. Wilson (1982), 8 Ohio App. 3d 216 -- Headnotes: "(2) Psychiatric testimony can be used in appropriate cases to impeach the non-testifying declarant whose out-of-court statement is admitted into evidence, where the declarant's ability to perceive, remember or relate is allegedly impaired by organic illness or a psychiatric disorder. (3) Where psychiatric or psychological testimony asserts a scientifically accurate conclusion on subjects whose scientific reliability is uncertain, such evidence should be rejected if the probative value of the expert testimony is outweighed by its prejudicial effect and its ability to confuse and mislead the jury."

Testing; Measurement; Reconstruction

Melendez-Diaz v. Massachusetts (2009), 129 S.Ct. 2527 – Certificates of state laboratory analysts were used to identify drugs at trial, over the defendant‘s objection. Applying Crawford held to be a denial of confrontation. Defense ability to subpoena the analyst is no substitute for the right to confront witnesses, since doing so would be useless if the witness was unavailable or refused to appear.
Bullcoming v. New Mexico (2011), 131 S.Ct. 2708 – In a DUI case the defendant’s blood sample was sent to a state lab for testing. The examiner was on unpaid leave for undisclosed reasons and did not testify. Instead the state called one his associates to validate the report, though he had not participated in the testing. Held that the defendant’s confrontation rights were denied. His associate’s testimony would have been admissible only if the actual examiner was unavailable and the defendant had previously been afforded confrontation. Analogy drawn to inclusion of speed measuring device readout in a speeding complaint.
State v. Lopez, 186 Ohio App. 3d 328, 2010-Ohio-732 – Technicians who performed the actual testing were unavailable but another forensic scientist testified using results. Melendez-Diaz v. Massachusetts distinguished on the basis that “live” testimony was presented, not just documents. Compare Bullcoming v. New Mexico (2011), 131 S.Ct. 2708.
State v. Pasqualone, 121 Ohio St. 3d 186, 2009-Ohio-315 – Counsel failed to file a demand for the testimony of a laboratory analyst, but objected to admission of the report at trial. Counsel may waive the defendant‘s right to confrontation by not demanding a laboratory analyst testify at trial. The requirement of a demand, rather than an affirmative waiver, is adequate to protect the defendant‘s rights. Syllabus: "(1) An attorney may waive a client‘s Sixth Amendment right to confrontation. (2) When the state has complied with its obligations under R.C. 2925.51, a defendant‘s failure to use the procedures of R.C. 2925.51(C) to demand that a laboratory analyst testify constitutes a waiver of the opportunity to cross-examine the analyst at trial and allows the analyst‘s report to be admitted as prima facie evidence of the test results."
State v. Pulaski, 154 Ohio App. 3d 301, 2003-Ohio-4847 -- Three women went out drinking. One fell and suffered a head injury. The defendant remembered being behind the wheel when they set out for the hospital, and initially believed she had been driving at the time of a serious accident. But a reconstruction expert testified she could not have been behind the wheel since the woman with the head injury was pinned in that location. Trial judge erred by not assigning weight to the expert's testimony. Conviction also reversed as being against the weight of the evidence.
State v. Clark (1995), 101 Ohio App. 3d 389, 409-419 -- Forensic photographer employed by the coroner's office found to have been properly qualified to testify as an expert witness concerning his use of an electronic drafting program to demonstrate, through locations of entrance and exit wounds, bullet hole in bathroom wall, and firing distance, that the fatal shot could not have been fired in the manner described by the defendant. See dissent which stresses expert's failure to visit scene, inability to place locations of victim and defendant, and lack of academic degrees or experience as a reconstruction expert.
State v. Courtney (1986), 25 Ohio App. 3d 12, 14-15 -- Expert testimony that a bullet could have been fired from a particular pistol admissible, even though identification was not conclusive.
State v. Smith (1976), 50 Ohio App. 2d 183 -- Headnote 1: "The results of a gunshot residue test may be admitted into evidence only after it is established that: (a) The test was based upon scientific principles which are accepted as dependable for the proposed purpose by the profession concerned in that science or its related art; and has gained general acceptance in the particular field to which it belongs; (b) The apparatus and/or materials used to make the scientific test were constructed or produced according to an acceptable model and were in condition to allow for accurate testing; and (c) The witness who conducted the test must be qualified by his training and experience to conduct the test."
State v. Williams (1983), 4 Ohio St. 3d 53 -- Syllabus: "The Ohio Rules of Evidence establish adequate preconditions for admissibility of expert testimony such as spectrographic voice analysis. It is within the sound discretion of the state's judiciary, on a case by case basis, to decide whether such testimony is relevant and will assist the trier of fact to understand the evidence or to determine a fact in issue."
Owens v. Bell (1983), 6 Ohio St. 3d 46 -- Human Leukocyte Antigen (HLA) tests, characterized as genetic comparison examinations rather than blood grouping tests, are medically and legally accepted as proof of the probability of paternity.
State v. Shelt (1976), 46 Ohio App. 2d 115 -- One may be convicted of speeding upon evidence obtained through the use of a moving radar device where: (1) there has been expert testimony as to the construction of the device and its method of operation, (2) evidence that the device was in proper operating condition, and (3) evidence that the operator was properly qualified to use the device. Also see State v. Wilcox (1974), 40 Ohio App. 2d 380.
Ohio v. Doles (1980), 70 Ohio App. 2d 35 -- Headnotes: "(1) In order for judicial notice to be taken, the fact must be one of common knowledge throughout the jurisdiction of the court. (2) Where there is no testimony as to the construction of a speed measuring device not the subject of judicial notice, the testimony of the user that he operated the device as instructed is insufficient to sustain a conviction for speeding." Also see State v. Colby (1984), 14 Ohio App. 3d 291.
Village of Moreland Hills v. Gazdak (1988), 49 Ohio App. 3d 22 --Headnotes: "(1) The taking of judicial notice in one jurisdiction cannot serve as proper judicial notice in another jurisdiction. (2) Judicial notice of the accuracy of a specific model of radar device cannot automatically be extended to warrant judicial notice of the accuracy of another model of radar device in another case." Also see City of East Cleveland v. Ferrell (1958), 168 Ohio St. 298; State v. Doles (September 4, 1980), Franklin Co. App. No. 80AP-144, unreported (1980 Opinions 2746).
State v. Midwest Pride IV, Inc. (1998), 131 Ohio App. 3d 1 -- While public opinion polls may be relevant in pandering obscenity trials, poll results were properly excluded when they did not address the content of the specific materials at issue. Title of one of two videotapes was highly suggestive as to content. Also see State v. Williams (1991), 75 Ohio App. 3d 102.


State v. Hardin, 193 Ohio App. 3d 666, 2010-Ohio-6304 – Franklin County Coroner testified based on an autopsy report from an autopsy preformed by another. Court of Appeals finds no confrontation violation applying Crawford and State v. Craig, 110 Ohio St. 3d 306, 2006-Ohio-4571. But Craig is again before the Ohio Supreme Court on the same issue, and the U.S. Supreme Court has decided Bullcoming v. New Mexico (201), 131 S.Ct. 2705 finding a confrontation violation in these circumstances.
State v. Snodgrass, 177 Ohio App. 3d 556, 2008-Ohio-4019 – Emergency room physician who diagnosed victim suffered a concussion was properly allowed to testify even though by the time of trial his license was suspended. While Evid. R. 601(D) only allows licensed physicians to testify on the issue of liability in a medical malpractice case, it does not apply to criminal cases. Licensure goes to weight, however.
State v. Emerick (1995), 108 Ohio App. 3d 401 -- Infant probably died of hypothermia but expert testimony did not rule out sudden infant death syndrome. Held that testimony was not inadmissible because it was framed in terms of possibility or probability rather than reasonable medical certainty. Also see State v. D'Ambrosio (1993), 67 Ohio St. 3d 185, 191.
State v. Fouty (1996), 110 Ohio App. 3d 130 -- Coroner did not perform autopsy and based his testimony on reports prepared by associates, not admitted into evidence. Testimony was improperly received. Vehicular manslaughter conviction reversed as without coroner's testimony there was no basis for finding death wasn't the result of victim's own negligence or improper intubation by medical personnel.
Vetter v. Hampton (1978), 54 Ohio St. 2d 227 -- In the context of a probate proceeding, held that the opinion of a physician as to competency is not dispositive of that issue as a matter of law.

Psychologists and Psychiatrists

State v. Ferguson, 108 Ohio St. 3d 451, 2006-Ohio-1502, ¶35-72 -- In a capital case the defendant proposed to plead guilty and waive mitigation. Both psychologists and psychiatrists are qualified to evaluate competency when the defendant has been prescribed psychotropic medications. It was not plain error to rule the defendant competent without ascertaining whether all testing had been completed. The report did not suffer from lack of information. Higher scrutiny is not required in determining the competency of a person actively seeking the death penalty.
In re Sherman, 162 Ohio App. 3d 73, 2005-Ohio-3444 -- (1) The psychologist's report was erroneously admitted in permanent custody proceedings as it contained information based on the observations of others which was not in evidence. (2) The court should have appointed a psychologist for the father to rebut the conclusions of the agency's expert.
In re Washington (2001), 143 Ohio App. 3d 576 -- Though the Rules of Evidence generally do not apply in Juvenile Court dispositional hearings, according to Juv. R. 34(I) they do apply in proceedings to terminate parental rights. Reversed because psychological evaluation of the parents was inadmissible hearsay.
State v. Ross, Franklin App. No. 02AP-898, 2003-Ohio-3338 -- Burly five-year old asked questions strongly suggesting he and not his father was responsible for the death of his infant sister. The trial court acted within its discretion excluding these statements, but erroneously excluded testimony by a psychologist who examined the five-year old as to his behavior. Such testimony would have tended to corroborate the defendant's alternative explanation of events leading to the infant's death.
State v. Presley, Franklin App. No. 02AP-1354, 2003-Ohio-6069 -- Prejudicial effect of testimony concerning victim's post-rape psychological problems substantially outweighed probative value regarding guilt or innocence.
State v. Wilcox (1982), 70 Ohio St. 2d 182 -- Syllabus: "(1) The partial defense of diminished capacity is not recognized in Ohio. (State v. Jackson 32 Ohio St. 2d 203...,followed.) (2) A defendant may not offer expert psychiatric testimony, unrelated to the insanity defense to show that the defendant lacked the mental capacity to form the specific mental state required for a particular crime or degree of crime." Also see State v. Cooey (1989), 46 Ohio St. 3d 20.
State v. Holt (March 30, 1982), Franklin Co. App. No. 81AP-661, unreported (1982 Opinions 791, 798) -- "The mere fact that the defendant testified in her own behalf and denied guilt does not preclude her from presenting evidence from other witnesses tending to indicate a lesser degree of guilt that the State's evidence would otherwise indicate, assuming the jury did not believe the defendant's testimony. Intent is seldom arrived at directly...Accordingly, the psychological makeup of a defendant can be an important factor in determining the intent with which that person acted." Also see State v. Thomas (1983), 13 Ohio App. 3d 211.
State v. Thomas (1983), 13 Ohio App. 3d 211 -- Headnote: "Testimony of the accused's psychiatrist regarding the accused's 'paranoid personality,' proffered to support defendant's claims of self-defense in killing her abusive common-law husband, is relevant and admissible in evidence to show the condition of the defendant's mind at the time of the killing." (See Battered Woman Syndrome and R.C. 2901.06.)
State v. Coulter (1992), 75 Ohio App. 3d 219 -- Expert testimony concerning the defendant's state of mind offered in support of self-defense claim not shown to go beyond what would have been within the understanding of the average juror.
State v. Zeh (1987), 31 Ohio St. 3d 99 -- Paragraph two of the syllabus: "When the mental condition of the victim-potential witness is a contested, essential element of the crime charged, the defense may move the court that the state be barred from utilizing evidence of such mental condition obtained in a clinical interview of the witness prior to trial, unless such witness voluntarily agrees to a court-appointed, independent examination with the results being made available to both sides." Compare In re Johnson (1989), 61 Ohio App. 3d 544, 548-549 where the state did not utilize evidence of the mental state of the rape victim.
State v. Stowers (1998), 81 Ohio St. 3d 260, 261 -- "An expert witness's testimony that the behavior of an alleged child victim of sexual abuse is consistent with behavior observed in sexually abused children is admissible under the Ohio Rules of Evidence." See dissent.
Tinkham v. Groveport-Madison Local School Dist. (1991), 77 Ohio App. 3d 242, 254-256 -- Witness qualified as a clinical and child psychologist could not testify as to whether child was a victim of sexual abuse as such matters were beyond her area of expertise, nor could she offer the same information as opinion testimony by a lay witness.
State v. Garfield (1986), 34 Ohio App. 3d 300 -- Headnote: "A psychiatrist may testify as an expert to explain how a child can be induced against her will but without force or physical coercion to engage in sexual conduct with an adult and not to disclose the conduct to others." (Provided foundation is otherwise established.) Also see State v. Timperio (1987), 38 Ohio App. 3d 156.
State v. Bidnost (1994), 71 Ohio St. 3d 449 -- Paragraph one of the syllabus: "Post-traumatic stress disorder in children has gained sufficient recognition in the psychiatric profession to be considered a proper subject for expert testimony."
State v. Whitman (1984), 16 Ohio App. 3d 246 -- Headnote 1: "To properly evaluate the admission of expert testimony evidence relating to 'rape trauma syndrome,' it must be subjected to the following tests: Whether or not the evidence (1) is relevant and material, (2) is within the view of the average layman, (3) has acceptable scientific reliability, and (4) has probative value that outweighs its prejudicial impact."
State v. Purcell (1995), 107 Ohio App. 3d 501, 504-506 -- Defendant presented expert testimony concerning post traumatic stress disorder as basis for self defense claim. State was properly allowed to present its own expert as to the defendant's state of mind at time of the incident.
State v. Martens (1993), 90 Ohio App. 3d 338 -- Testimony by an expert that rape victim suffered from posttraumatic stress disorder was relevant, as, in the face of a consent defense, her demeanor was relevant and important to corroborate her claim that she was raped. Testimony that PTSD was only within the general knowledge of the public to a certain degree was sufficient to establish such testimony as beyond the ken of the jury. While the testimony came close to being an impermissible effort to bolster the credibility of the victim, it was sufficiently limited to explaining the victim's reactions after the incident.
State v. Roquemore (1993), 85 Ohio App. 3d 448, 452-458 -- It was error to admit testimony by a "profilist" called by the state to testify that the crime scene fell within patterns of known violent behavior he had studied in the past. Failure of the expert to maintain complete statistics, though he claimed "profiling" was statistics based, failure to lay foundation for expression of opinion, relevancy, hearsay, and invasion of the province of the jury are discussed. Prosecution sought to establish there had been a rape in an involuntary manslaughter case.
In re Shaeffer Children (1993), 85 Ohio App. 3d 683 -- Where a parent's mental health is the predominant issue in permanent commitment proceedings, an indigent parent is entitled to the assistance of a court compensated psychiatric expert under the due process provisions of the state and federal constitutions.
State, ex rel. a Juvenile, v. Hoose (1988), 43 Ohio App. 3d 109 -- Headnote: "In relinquishment proceedings in the juvenile court pursuant to Juv. R. 30, a juvenile is not entitled to the appointment of a private psychiatric examiner of the court's choosing and at the state's expense, instead of the court psychologist."
State v. Marshall (1984), 15 Ohio App. 3d 105 -- The statutes governing competency do not require an "independent" evaluation and the defendant was found not to have made a sufficient showing why one was required. But see State v. Hix (1988), 38 Ohio St. 3d 129, applying a differently phrased statute, but which discusses this case and requires an independent examiner in some instances when sanity is at issue.
In re Egbert Children (1994), 99 Ohio App. 3d 492, 495 -- $300 fee limitation cannot be found a due process violation without evidence that it was insufficient to retain a competent psychiatrist.
State v. Filiaggi (1999) 86 Ohio St. 3d 230, 243-244 -- In a NGRI/death case defense called four experts, the state one. Court gives greater weight to the state's expert as he specialized in forensic psychiatry and had access to police reports and other materials in the sole possession of the prosecution.


State v. Crager, 116 Ohio St. 3d 369, 2007-Ohio-6840, cert granted, judgment vacated and remanded Crager v. Ohio (2009), 129 S.Ct. 2527, remanded for a new trial by the Ohio Supreme Court on September 9, 2009 – Syllabus: “(1) Records of scientific tests are not ‘testimonial’ under Crawford v. Washington (2004), 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177. (2) A criminal defendant’s constitutional right to confrontation is not violated when a qualified expert DNA analyst testifies at trial in place of the DNA analyst who actually conducted the testing.” DNA test results are a business record. Examiner was on maternity leave. Corresponds to State v. Craig, 110 Ohio St. 3d 306, 2006-Ohio-4571, involving a coroner’s report. Compare Bullcoming v. New Mexico (2011), 131 S.Ct. 2708.
State v. Emerson, 192 Ohio App. 3d 446, 2011-Ohio-593 – Defendant was acquitted of a 2005 offense, but his DNA profile remained in the “CODIS” databases, which are maintained at the local, state (BCI), and national (FBI) levels. The “profile” created from an exemplar led to conviction for an otherwise unsolved homicide. Defendant unsuccessfully sought to suppress the DNA identification. Court concludes he did not have a proprietary interest in the profile. It was incumbent upon the defendant to expunge records from his prior acquittal. The court questions whether this would reach the federal CODIS. Case is pending before the Supreme Court as 2011-0486.
State v. Steele, 155 Ohio App. 3d 659, 2003-Ohio-7103 -- Constitutional challenge fails with respect to use of DNA samples taken from the defendant while he was in prison, and placed in the DNA database that led to indictment for an unsolved rape. Also see State v. Cremeans, 160 Ohio App. 3d 1, 2005-Ohio-928.
State v. Young, Montgomery App. No. 19466, 2003-Ohio-4706 -- Swabs from areas the defendant allegedly kissed, which matched his DNA, helps defeat weight of the evidence claim.
State v. Pierce (1992), 64 Ohio St. 3d 490 -- Syllabus: "(1) DNA evidence may be relevant evidence which will assist the trier of fact in determining a fact in issue, and may be admissible. (State v. Williams [1983], 4 Ohio St. 3d 53, syllabus, applied.) (2) Questions regarding the reliability of DNA evidence in a given case go to the weight of the evidence rather than to its admissibility." Also see State v. Tinch (1992), 84 Ohio App. 3d 111, 128.
State v. Wages (1993), 87 Ohio App. 3d 780, 786-787 -- Properly qualified DNA expert did not have to be further qualified in the field of statistics where statistical conclusions in his testimony were based on simple multiplication.
State v. Lane (1995), 108 Ohio App. 3d 477 -- (1) Admission and interpretation of DNA results from Cellmark should have included testimony by both the molecular biologist who performed the test and the population geneticist who calculated the match frequency. Nor was Cellmark casefile properly admitted. Court declines to reverse as plain error. Compare State v. Austin (1998), 131 Ohio App. 3d 329, 337-338, where the same court found the witness was adequately qualified as an expert in both areas. (2) Admissibility of DNA results is not conditioned upon promulgation of standards by the Director of Health. (3) Release to Cellmark was not beyond scope of defendant's consent to have blood drawn. (4) Cellmark case file was prepared for litigation and lacked the necessary trustworthiness for admission as a business record.
State v. Pearson (1997), 119 Ohio App. 3d 745 -- Defendant submitted to the drawing of a blood sample pursuant to an invalid court order. A second specimen was later drawn pursuant to a valid warrant, but was never used for comparison purposes. DNA profile from the first draw was sent to another county investigating a factually similar rape, and led to indictment. (1) The trial court could not properly impute results from the testing of the first sample to the second, lawfully obtained, sample. The reliability of DNA testing is not a matter for judicial notice, and the reliability of the results of a particular test depend on the circumstances and methodology under which it was performed. (2) Inevitable discovery saves use of initial test results as police in second county would have proceeded to obtain a valid warrant had they not had the results of the previous testing. Related cases: State v. Pearson (1996), 114 Ohio App. 3d 153; State v. Pearson (1996), 114 Ohio App. 3d 168; State v. Pearson (1998), 130 Ohio App. 3d 577.

Lay Opinion Testimony

United States v. Freeman, 730 F.3d 590 (6th Cir. 2013) Trial court erred by improperly permitting an FBI agent to give lay testimony under Federal Evidence Rule 701. The agent was allowed to interpret the meaning of statements in recorded phone conversations between the co-defendants without backing those opinions up with testimony about personal experiences. In essence, he gave no foundation for his opinion testimony. Allowing the agent to do so was prejudicial to the defendant, as the jury was likely to give the benefit of the doubt to the agent’s interpretations (which fit the prosecution’s narrative perfectly and which could have been based on hearsay and other inadmissible evidence).
State v. Marshall, 191 Ohio App. 3d 444, 2010-Ohio-5160 – Defendant maintained asking two officers whether the victim appeared vindictive amounted to allowing them to express an opinion as to credibility. Court construes questions as proper lay opinion testimony concerning demeanor and state of mind.
State v. Lopez, 186 Ohio App. 3d 328, 2010-Ohio-732 – Court finds no error in allowing a police officer to testify it would be highly unlikely a prostitute would remove her clothing in an alley. Since the witness was not qualified as a expert, the court assumes this was offered as lay opinion, and finds the opinion was rationally based on the witness’ perception and his many years of dealing with prostitutes. Even if it came in as expert testimony, the witness had specialized knowledge, education and experience working with prostitutes over the year.
State v. McKee, 91 Ohio St. 3d 293, 2001-Ohio-41 -- Proof of the identity of the substance involved was limited to lay opinion of the teenagers who allegedly smoked marijuana in a car with the defendant. Syllabus: "The experience and knowledge of a drug user lay witness can establish his or her competence to express an opinion on the identity of a controlled substance if a foundation for this testimony is first established." Conviction reversed as such a foundation had not been established.
State v. Kehoe (1999), 133 Ohio App. 3d 591, 602-608 --investigator's description of broken glass and bullet strike marks, and his interpretation of based on his experience, fell within what is allowed as the expression of an opinion by a lay witness. Nor was his description of what he saw on videotape, or information concerning other shoot outs he had investigated improperly received. It was error, though harmless, for investigator to testify as to results of ballistics testing he did not perform or observe.
State v. Hawn (2000), 138 Ohio App. 3d 449, 464-466 -- Court improperly allowed officer to state lay opinion that defendant's crying and remorse were faked because she saw no tears.
State v. Hensley, Lucas App. No. L-03-1005, 2005-Ohio-664 -- Ineffective assistance of counsel not to object when officer was asked whether he believed a third-party confession was believable.
State v. Kovac, 150 Ohio App. 3d 676, 2002-Ohio-6784, ¶31-48 -- Mother testified she had no reason to disbelieve her daughter's claim she had been raped. Reversed as plain error. Door was not opened by defense counsel's inquiry regarding daughter's recent history of lying, and thus was not invited error.
State v. Jells (1990), 53 Ohio St. 3d 22 -- Paragraph two of the syllabus: "A lay witness may be permitted to express his or her opinion as to the similarity of footprints if it can be shown that his or her conclusions are based on measurements or peculiarities in the prints that are readily recognizable and within the capabilities of a lay witness to observe. (Evid. R. 710, construed and applied.)"
State v. Sibert (1994), 98 Ohio App. 3d 412, 425-426 -- No abuse of discretion to have allowed mother of sex offense victims to testify as to changes in their mental states, where specific examples of their behavior were the basis for her testimony.
State v. Norman (1982), 7 Ohio App. 3d 17 -- A police officer may render a non-expert opinion as to the choke pattern of a shotgun, based on his observations and experience as a police officer and a hunter, to aid the jury in understanding his testimony.
Columbus v. Dawson (1986), 28 Ohio App. 3d 45 -- No abuse in allowing a police officer with military, police academy and martial arts training to testify a particular knife was designed as a deadly weapon.
State v. Maupin (1975), 42 Ohio St. 2d 473 -- Paragraph two of the syllabus: "The admission in evidence of the testimony of a Cincinnati police officer that a substance was marijuana was not an abuse of discretion where the officer had 14 years experience as a member of the vice squad of the Cincinnati Police Department, had one and a half years experience as an undercover agent for the Federal Bureau of Narcotics, had made hundreds of arrests, including those for drug violations, and, during the course of drug investigations, he had occasion to see and observe marijuana."
Hatfield v. Andermat (1988), 54 Ohio App. 3d 188 -- Headnote 1: "A trial court errs in admitting the non-expert opinion testimony of a police officer, who did not witness the accident in question, as to the proximate cause of the accident and the negligence of the parties involved."
State v. Koelling (May 4, 1993), Franklin Co. App. No. 92AP-1519, unreported (1993 Opinions 1629) -- It was error to allow a police officer to testify that from his review of accounts given by state's witnesses, they appeared to have been truthful.
State v. Hicks (1993), 88 Ohio App. 3d 515 -- Police officer was not properly qualified to express opinion that case involved abuse and not proper parental discipline.
State v. Hohman (1991), 81 Ohio App. 3d 80, 82 -- Where test circumstances were sufficiently similar to those of the case being tried, it was not an abuse of discretion to allow an officer to testify as to the amount of time it took for smell to dissipate after he had sprayed himself with mace.


Publishing Information

Published by Timothy E. Pierce
Copyright © Franklin County Public Defender and Timothy E. Pierce, 2015
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