Franklin County Criminal Law Casebook

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

Evidence Rule 801 -- (Hearsay) Definitions.
Evidence Rule 802 -- Hearsay Rule.
Evidence Rule 803 -- Hearsay Exceptions; Availability of Declarant Immaterial.
Evidence Rule 804 -- Hearsay Exceptions; Declarant Unavailable.
Evidence Rule 805 -- Hearsay Within Hearsay.
Evidence Rule 806 -- Attacking and Supporting Credibility of Declarant.
Evidence Rule 807 -- Hearsay Exceptions; Child Statements in Abuse Cases.

In General

Crawford v. Washington (2004), 124 S.Ct. 1354 -- Prior testimonial statements of an unavailable witness are admissible only if they were subject to cross-examination. Husband and wife made statements to investigating officers. Marital privilege barred the wife's testimony at trial, but the privilege did not extend to out of court statements. Prosecution got her statement in through a dubious application of the statements against penal interest exception to the hearsay rule, finding through application of Ohio v. Roberts (1980), 448 U.S. 56 that it bore sufficient indica of reliability. The Supreme Court overrules Roberts emphasizing the historic objectives of the Confrontation Clause.
Worton v. Bockting (2007), 127 S.Ct. 1173 -- Crawford is not retroactive. While it does announce a new rule of criminal procedure, and would be applicable to cases remaining on direct appeal, it does not apply in cases under collateral review. According to Teague v. Layne a new rule applies retroactively in collateral proceedings only if it amounts to a "watershed" rule implicating the fundamental fairness and accuracy of criminal proceedings. The only example offered is the right to counsel holding in Gideon v. Wainwright.
Davis v. Washington (2006), 126 S.Ct. 2266 -- For purposes of Crawford responses to a 911 operator's queries during an ongoing emergency are not testimonial. But responses to questions by an officer at the scene to investigate an apparent domestic disturbance were testimonial. Also see State v. Mitchell, 171 Ohio App. 3d 225, 2007-Ohio-1696; State v. Naugler, 111 Ohio St. 3d 130, 2006-Ohio-5340.
State v. Byrd, 160 Ohio App. 3d 538, 2005-Ohio-1902 -- Applying Crawford v. Washington (2004), 124 S.Ct. 1354, alleged domestic violence victim's 911 call was properly admitted as an excited utterance, but her subsequent statement to the police did not, even though some of her statements fell within exceptions to the hearsay rule.
State v. Harr, 158 Ohio App. 3d 704, 2004-Ohio-5771 -- Trial court erroneously allowed mother to testify as to young daughters account of being molested two weeks earlier. To the extent Ohio courts may have been expanding the admissibility of excited utterances based on an assessment of reliability, Crawford v. Washington (2004), 124 S.Ct. 1354 requires stricter interpretation of Evid. R. 803(2).
State v. Lloyd, Montgomery App. No. 20220, 2004-Ohio-5813 -- Crawford v. Washington (2004), 124 S.Ct. 1354, does not apply to the defendant's own statements admissible as those of a party-opponent.
State v. Smith, 162 Ohio App. 3d 208, 2005-Ohio-3579 -- Applying Crawford, admission of a taped conversation between the defendant and an informant in furtherance of a drug transaction did not violate the right to confrontation. The informant did not testify. His end of the taped conversation was not admitted for the truth of the matter asserted. It only provided the context for the defendant's statements received as admissions.
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. Crable, Belmont App. No. 02 BA 24, 2003-Ohio-4884 -- Reversal and dismissal of charges is required when it is clear that the judge in a bench trial relied on inadmissible hearsay for the truth of the matter asserted and there was no other evidence to establish essential elements.
In re Sherman, 162 Ohio App. 3d 73, 2005-Ohio-3444 -- (1) The statements of the children in a permanent custody case are inadmissible unless they fall within a hearsay exception. (2) The psychologist's report was erroneously admitted as it contained information based on the observations of others which was not in evidence. (3) The same applies to the written guardian ad litem's report, said to have been based on records and conversations. Also see In re Swisher, Franklin App. No. 02AP-1408, 2003-Ohio-5446.
State v. Said (1994), 71 Ohio St. 3d 473, 475 -- "...(H)earsay statements must meet the same basic requirements for admissibility as live witness testimony." This includes competency and knowledge.
State v. Hirtzinger (1997), 124 Ohio App. 3d 40, 50 -- "When a court admits hearsay beyond the dictates of Evid. R. 802, the standard of review is a strict one. 'In the final analysis, the evidence in favor of conviction, absent the hearsay, must be so overwhelming that the admission of those statements was harmless beyond a reasonable doubt.' State v. Kidder (1987), 32 Ohio St. 3d 279, 284..."
State v. Flors (1987), 38 Ohio App. 3d 133 -- When hearsay statements were properly admitted but their content was not admissible for the truth of the matter asserted, the proper remedy is for the defendant to request a limiting instruction.
State v. Blevins (1987), 36 Ohio App. 3d 147, 150 -- When statements are not offered for the truth of the matter asserted, and when their content creates the potential for misunderstanding on the part of the jury, they should be excluded under Evid. R. 403(A).
State v. Cantlebarry (1990), 69 Ohio App. 3d 216, 220-221 -- It was error to exclude statements made by officers contemporaneous with their investigative efforts which the defendant sought to admit to explain the conduct of the officers. Also see State v. Thomas (1980), 61 Ohio St. 2d 223, 232.
State v. Pumpelly (1991), 77 Ohio App. 3d 470 -- If improperly admitted hearsay is the only proof on a necessary element, a conviction must be reversed.
State v. Sorrels (1991), 71 Ohio App. 3d 162 -- Erroneous admission of hearsay is harmless only if can reasonably be concluded that there is no reasonable possibility the evidence contributed to the defendant's conviction.

Statements that are not Hearsay

Also see Admissions
State v. Dickess, 174 Ohio App. 3d 658, 2008-Ohio-39, ¶29-42 – Tape of defendant‘s statement to the police was introduced. Without objection the jury was instructed it could consider his prior record in relation to that statement. Court finds this was permitted under Evid. R. 806. Dubious holding with regard to defendants, but the tactic might legitimately used to attack the credibility of other hearsay when the declarant has a record.
In re Mack, 148 Ohio App. 3d 626, 2002-Ohio-4161 -- Psychological evaluation report offered into evidence at a termination of parental rights hearing, where the Rules of Evidence applied, was inadmissible hearsay. Examiner did not testify. Error harmless as the judgment was supported by the balance of the evidence.
State v. Fisher, 148 Ohio App. 3d 126, 2002-Ohio-3026, ¶4-8 -- Witness had a conversation with the defendant in a bar. By the time of trial he was locked up as a parole violator for having been in that bar. Prior consistent statement was admissible to rebut an implicit claim of improper influence or motive based on hope of leniency in exchange for testimony.
State v. Prade (2000), 139 Ohio App. 3d 676, 692 -- The defendant's statements, when offered against him, are not hearsay. But testimony by a third party concerning statements attributed to the defendant by the victim are not admissible to show the victim's emotional state unless those statements meet an exception to the hearsay rule.
State v. Douglas, 164 Ohio App. 3d 467, 2005-Ohio-6144, ¶54-58 -- At a Bureau of Workers Compensation hearing the defendant's attorney admitted the defendant's signature appeared on claims forms and that he had worked three places while receiving benefits which he was not entitled to. At trial these statements, either authorized by the defendant or made by his agent, fell outside the definition of hearsay.
State v. Carter (1995), 72 Ohio St. 3d 545 -- Paragraph two of the syllabus: "Because a true question or inquiry is by its nature incapable of being proved either true of false and cannot be offered 'to prove the truth of the matter asserted,' it does not constitute 'hearsay' as defined by Evid. R. 801."
State v. Blevins (1987), 36 Ohio App. 3d 147 -- Headnote 1: "Not all out-of-court statements are hearsay, e.g., some statements are merely verbal parts of acts and are, as the acts are themselves, admissible. However, in a criminal case, the potential for abuse in admitting such statements is great where the purpose is merely to explain an officer's conduct during the course of an investigation. Therefore, in order to admit out-of-court statements which explain an officer's conduct during the course of a criminal investigation, the conduct to be explained must be relevant, equivocal and contemporaneous with the statements. In addition, the statements must meet the standard of Evid. R. 403(A)."
State v. Williams (1988), 38 Ohio St. 3d 346 -- A statement has been offered to prove the truth of the matters asserted when it has been read to the jury during argument in an attempt to bolster the credibility of the testimony of other witnesses. Also see State v. Eubank (1987), 38 Ohio App. 3d 141, 148 --No plausible basis advanced why statement was not offered for the truth of the matter asserted.
State v. Kline (1983), 11 Ohio App. 3d 208 -- (1) At 211: "Extrajudicial statements offered for impeachment purposes are not hearsay since they are not offered for the truth of what they state." (2) Hearsay declarant may be impeached by his other hearsay statements.
State v. Bock (1984), 16 Ohio App. 3d 146 -- Prior consistent statements are admissible to rebut an express or implied charge of recent fabrication. [Evid. R. 801(D)(1)(b)] Also see State v. Mullins (1986), 34 Ohio App. 3d 192, 196-197.
State v. Sprawl (1982), 3 Ohio App. 3d 406 -- Headnote: "A statement made by a defendant to police at the time of his arrest is admissible under Evid. R. 801(D)(1)(b) where the statement is consistent with the defendant's testimony at trial and is offered to rebut an express or implied charge against him that such testimony was of recent fabrication."

Statements that are Inadmissible Hearsay

In re D.K., 185 Ohio App. 3 355, 2009-Ohio-6347 – Notebooks left in a classroom were turned in at the office and examined by the principal, who found disturbing writings and records pertaining to prior disciplinary proceedings for having such materials while in junior high school. Juvenile was charged with being unruly. Opinion does not address how such activity might make one an unruly child, but disposes of the appeal by finding the principal was improperly allowed to testify as to the content of the disciplinary records, this being in violation of the juvenile’s right to confrontation..
State v. Blanton, 184 Ohio App. 3d 611, 2009-Ohio-5334 – Sexually oriented offender failed to give 20 days notice he planned to move from a motel he could no longer afford to a relative’s home, leading to conviction and lengthy imprisonment for failure to register. At ¶28-53: Reversible error for prosecution witnesses to relate what they were told in the process of investigating the defendant’s whereabouts.
State v. Platfoot, 183 Ohio App. 3d 349, 2009-Ohio-3769 – Over objection officer was allowed to testify a non-testifying witness to an accident had corroborated the account of one of the drivers. In the court‘s view this is reversible error equivalent to admitting the witness‘s hearsay statements. The court rejects the view of the Eighth and Tenth Districts that mention of corroboration is acceptable, provided the actual statements are not received.
State v. Kemper, Clark App. Nos. 2002-CA-101 and 102, 2004-Ohio-6055 -- Without objection, an interrogation tape was played for the jury in which an officer was heard to say several individuals had identified the defendant as the gunman. Those statements were inadmissible hearsay, offered for the truth of the matter asserted. Counsel was ineffective for having failed to object.
State v. Presley, Franklin App. No. 02AP-1354, 2003-Ohio-6069 -- Diagram prepared by victim while being questioned by a police officer was inadmissible hearsay.
Davis v. Trumbull County Children Services Board (1985), 24 Ohio App. 3d 180 -- An agency report containing social history information is hearsay and may not be admitted to prove the allegations in a dependency complaint.
Tasin v. SIFCO Industries (1990), 50 Ohio St. 3d 102, 107 -- An affidavit is inadmissible hearsay unless it falls within one of the exceptions in Evid. R. 803 and 804. Also see State v. Schell (1984), 13 Ohio App. 3d 313, 317-318.
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.
Tome v. United States (1995), 513 U.S. 150 -- Applying Federal Evid. R. 801(d)(1)(B) concerning statements admitted to rebut a charge of recent fabrication or improper influence, it was improper to admit testimony as to statements by alleged child-victim which were made after the motive to fabricate arose.
State v. Fears (1999), 86 Ohio St. 3d 329, 338 -- Though witness did not see shooting, she was allowed to testify she had been told who was responsible by two other people. State's claim this was offered for a "nonhearsay" purpose rejected.
State v. Yarber (1995), 102 Ohio App. 3d 185, 190-195 -- Where the plain purpose is to bolster the credibility of a witness, statements are not saved from being hearsay by a claim that they are not being offered for the truth of the matter asserted, but only to show that statements were made.
State v. Spinks (1992), 79 Ohio App. 3d 720, 729 -- Statements of decedent in a police report concerning threats made by the defendant were inadmissible: "...(N)either Evid. R. 803(6) nor Evid. R. 803(8), the public records and reports exception to the hearsay rule, permits the state to prove its case through police records or reports or portions thereof...In criminal cases, that procedure violates both the hearsay rule and the accused's constitutional right of confrontation."
State v. Smith (1989), 64 Ohio App. 3d 383 -- Reversal where detective mentioned information from another police department that defendant was known to carry cocaine in a Pepsi can. Reference not justified by claim was offered to explain why officers executing an arrest warrant picked up a Pepsi can in the defendant's motel room.
Toledo v. Stuart (1983), 11 Ohio App. 3d 192, 293 -- "Testimony regarding extrajudicial statements made during a telephone call is inadmissible when offered for the truth of the matter asserted therein. See Evid. R. 801(C)." Compare State v. Lewis (1970), 22 Ohio St. 2d 125 where purpose was only to show calls had been made.
In re Coy (1993), 67 Ohio St. 3d 215, 217-218 -- Evidence Rule 801(D)(2) pertaining to statements of a party-opponent is limited to statements of a party offered against that party. A party may not use the rule to introduce his or her own statements.
State v. York (1996), 115 Ohio App. 3d 245, 148 -- Though accident reports are public records, statements contained within them are admissible only if the declarant was under an official duty to relate what is set forth. Thus an officer's first hand observations are admissible, but statements by a motorist are not unless made under an official duty to report.

Statements Made in the Defendant's Presence

State v. Billings (1995), 103 Ohio App. 3d 343 -- Statement by attorney to officer in defendant's presence, concerning defendant's whereabouts at time of incident, construed as an admission.
State v. Poole (1976), 50 Ohio App. 2d 204 -- When a defendant has listened to the taped confessions of accomplices and acknowledged what they said to be true, their statements become his own confession by adoption or ratification. Also see State v. Matthews (1976), 47 Ohio St. 2d 119.
State v. Kidder (1987), 32 Ohio St. 3d 279, 283 -- Statements by police officers concerning the veracity and mental state of the victim, which were not excised from tape of interrogation of the defendant, were not admissible as adoptive admissions [Evid. R. 801(D)(2)] Compare United Stated v. Alker (3d Cir. 1958), 255 F. 2d 851.

Statements of Co-Conspirators

State v. Liberatore (1982), 69 Ohio St. 2d 583, 586-587 -- Statement of co-conspirator is not admissible unless made during the course of and in furtherance of the conspiracy or resulting coverup. Also see State v. Shelton (1977), 51 Ohio St. 2d 68 (coverup).
State v. Martin (1983), 9 Ohio App. 3d 150 -- In order for the out of court statements of a co-conspirator to be admissible, there must be independent proof sufficient to establish a prima facie case fairly raising a presumption or inference of conspiracy. See Evid. R. 801(D)(2)(e); Goins v. State (1889), 46 Ohio St. 457; State v. Thomas (1979), 61 Ohio St. 2d 223. Compare Bourjaily v. United States (1987), 483 U.S. 171 -- Existence of a conspiracy must be proven by a preponderance of the evidence.
State v. Carter (1995), 72 Ohio St. 3d 545 -- Paragraphs three and four of the syllabus: "(3) The statement of a co-conspirator is not admissible pursuant to Evid. R. 801(D)(2)(e) until the proponent of the statement has made a prima facie showing of the existence of the conspiracy by independent proof. (4) A confession to police by one co-conspirator implicating a second co-conspirator is not made 'during the course and in furtherance of the conspiracy' within the scope of Evid. R. 801(D)(2)(e), as such a statement is made at a point in time when the confessor is no longer attempting to conceal the crime and has abandoned the conspiracy."
State v. Daniels (1993), 92 Ohio App. 3d 473, 482-483 -- Undelivered letter from one co-conspirator to another, written nine months after the commission of the crime charged and relating to how to testify, was properly admitted under the co-conspirator exception to the hearsay rule, since it was in furtherance of the conspiracy and other requisites for admission had been met.
State v. Jurek (1989), 52 Ohio App. 3d 30, 35 -- Independent proof of conspiracy is required for introduction of a co-conspirator's statements, however, the defendant's own non-hearsay statements may be a part of such proof.
State v. Duerr (1982), 8 Ohio App. 3d 396 -- (1) The defendant's own admissions may constitute the independent proof establishing the existence of a conspiracy, permitting admission of the hearsay statements of co-conspirators. (2) When the crime has been completed, a co-conspirator's confession implicating the defendant is not a statement made "during the course and in furtherance of the conspiracy." See Evid. R. 801(D)(2)(e).
State v. Milo (1982), 6 Ohio App. 3d 19 -- There are five conditions for the admission of the out of court declaration of a co-conspirator: (1) the existence of a conspiracy; (2) the defendant's participation in the conspiracy; (3) the declarant's participation in the conspiracy; (4) the statement was made during the course of that conspiracy; and (5) the statement was in furtherance of the conspiracy. Also see Evid. R. 801(D)(2) (e); State v. Carver (1972), 30 Ohio St. 2d 280.
Boone v. Marshall (6th Cir. 1985), 760 F. 2d 117 -- Evidence admitted as the statement of a co-conspirator under Fed. Evid. R. 801(D)(2)(e) automatically satisfies the Sixth Amendment right to confrontation.

Excited Utterances

State v. Boles, 190 Ohio App. 3d 432, 2010-Ohio-5503 -- ¶ 30-36: Victim asked a friend to tell her father that the defendant was talking about killing her. Trial court admitted this under the state of mind exception to the hearsay rule. This was incorrect, but the statement was admissible as an excited utterance. ¶37-44: relayed information amounting to double hearsay was properly admitted since at each stage what was said fell within the excited utterance exception.
Toledo v. Sailes, 180 Ohio App. 3d 56, 2008-Ohio-6400 – Domestic violence victim‘s statements to an officer were made after the scene had been secured and not in response to questions calculated to meet an ongoing emergency. They were testimonial as the primary purpose was to record her version of past events. Thus they should have been excluded.
State v. Butcher, 170 Ohio App. 3d 52, 2007-Ohio-118 -- Two months after being sexually assaulted, after debating who would make the revelation, children reported what had happened. Their statements were the product of reflective thought and did not qualify as excited utterances. Though they became upset after reporting, their responses to follow-up questions were not excited utterances. An M.D. employed by a child advocacy center is deemed a "manufactured witness" as children had already received medical treatment elsewhere, and she served as child-abuse investigator, whose function was the gathering of evidence. Without a voir dire of the children, it is impossible to determine if anything the children told her was for the purpose of diagnosis and treatment. Case also includes successful double hearsay and ineffective assistance of counsel claims.
State v. Reardon, 168 Ohio App. 3d 386, 2006-Ohio-3984 -- Home invasion victim blurted out that one of the robbers was "that fat fucker Reardon with the lazy eye down at the end of the street" in chaotic circumstances as a foot pursuit of suspects was underway. Held to be non-testimonial under Crawford and properly admitted as an excited utterance.
State v. Siler, 164 Ohio App. 3d 680, 2005-Ohio-6591 -- On remand from the U.S. Supreme Court in light of Crawford, the court of appeals concludes statements of a three year old, questioned by a police officer after his mother's death, were testimonial. The court had previously determined they qualified as excited utterances under Ohio law. Affirmed: State v. Siler, 116 Ohio St. 3d 39, 2007. Syllabus: "(1) To determine whether a child declarant's statement made in the course of police interrogation is testimonial or nontestimonial, courts should apply the primary purpose test: 'Statements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency. They are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution.'(Davis v. Washington (2006)...126 S.Ct. 2266, 2273-2274...followed.) (2) A declarant's age is not determinative of whether a testimonial statement has been made during a police interrogation."
State v. Harris, 163 Ohio App. 3d 286, 2005-Ohio-4696 -- Victim did not testify. At the station, while she was still somewhat upset, an officer asked "who was that and what happened?" She responded that the defendant was her boyfriend and the father of her child. Statement did not qualify as an excited utterance as it was the product of reflective thought. Concurring judge would further find a Crawford confrontation violation.
State v. Williams, Montgomery App. No. 20368, 2005-Ohio-213 -- Admission of excited utterances without proof the declarant is unavailable does not violate the right to confrontation under the Ohio Constitution. Trial court did not rely on the federal Constitution.
In re Joshua C., Erie App. No. E-03-015, 2003-Ohio-6752 -- Four- year old mentioned sexual activity with a 13-year old cousin to her mother on the drive home from a visit. Child may have been affected by the events of the day, but did not seem much different from normal. Statements improperly admitted as excited utterances. Court also finds the four-year old was not competent to testify.
State v. Wallick, 153 Ohio App. 3d 748, 2003-Ohio-4534 -- For the hearsay statements of a four-year old to be admissible as excited utterances or in furtherance of medical diagnosis, the declarant must first be found competent as a witness. If the declarant can't be shown to be capable of receiving just impressions of facts and transactions, the trustworthiness premise underlying the exceptions to the hearsay rule can not be met. Compare In re D.M., 158 Ohio App. 3d 780, 2004-Ohio-5858, also noting the excited utterance exception is applied liberally to children of limited reflective capacity.
State v. Melton (2001), 141 Ohio App. 3d 713, 722 -- Beating victim regained consciousness and called 911 from a neighbor's apartment. 911 tape may be admitted as an excited utterance if the court concludes that the witness upon regaining consciousness lacked sufficient opportunity to gather his or her wits in order to fabricate.
State v. Duncan (1978), 53 Ohio St. 2d 215 -- Statements properly admitted where child confided in mother at first opportunity to do so. Syllabus: "Testimony as to a statement or declaration may be admissible under an exception to the hearsay rule for spontaneous exclamations where the trial judge reasonably finds (a) that there was some occurrence startling enough to produce a nervous excitement in the declarant, which was sufficient to still his reflective faculties and thereby make his statements and declarations the unreflective and sincere expression of his actual impressions and beliefs, and thus render his statement or declaration spontaneous and unreflective, (b) that the statement or declaration, even if not strictly contemporaneous with its existing cause, was made before there had been time for such nervous excitement to lose a domination over his reflective faculties, so that such domination continued to remain sufficient to make his statements or declarations the unreflective and sincere expression of his actual impressions and beliefs, (c) that the statement or declaration related to such startling occurrence or to the circumstances of such startling occurrence, and (d) that the declarant had an opportunity to observe personally the matters asserted in his statement or declaration. (Paragraph two of the syllabus in Potter v. Baker, 162 Ohio St. 488, approved and followed.)"
State v. Taylor (1993), 66 Ohio St. 3d 295, 299-305 -- Applying State v. Duncan (1978), 53 Ohio St. 2d 215 and Potter v. Baker (1955), 162 Ohio St. 488, hearsay statements must be shown not to be the product of reflective thought. It is not enough that the declarant was "upset" if it appears he furnished a narrative which was the product of reflective thought. Also see State v. O'Neal (2000), 87 Ohio St. 3d 402, 410-412; In re Legg (1993), 68 Ohio Misc. 2d 1.
State v. Price (1979), 60 Ohio St. 2d 136 -- Spontaneous exclamation is still admissible, even though declarant may not remember what was said.
State v. Wallace (1988), 37 Ohio St. 3d 81 -- (1) Even an extended period of unconsciousness does not necessarily destroy the effect of a startling event for purposes of the excited utterance exception to the hearsay rule. (2) Paragraph three of the syllabus: "The testimonial incompetency of a child declarant does not bar the admission of the child's declarations as excited utterances." (3) At p. 89 discusses the four part common law test for qualification as an excited utterance, including nervous excitement sufficient to still reflective facilities, and personal observation of matters referred to.
State v. Terra (1991), 74 Ohio App. 3d 189, 196-197 -- Responses of a two year old to questions posed by mother was improper where the questions were so leading as to destroy the spontaneity of the responses. Furthermore, a two year old of average intelligence does not possess sufficient intelligence to render his or her out of court statements reliable, even if excited.
State v. Wagner (1986), 30 Ohio App. 3d 261; State v. Fowler (1985), 27 Ohio App. 3d 149 -- Cases, among others, stand for the proposition courts have broad discretion in admitting as excited utterances the statements of child victims of sexual assault. However, the adoption of Evidence Rule 807 in 1991 would seem to remove such statements from consideration as excited utterances. For discussion of recurrent problems in cases involving child-victims see 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.")
State v. Moorman (1982), 7 Ohio App. 3d 251, 152 -- Spontaneity and the lack of an opportunity to engage in reflective thought are the essential criteria in determining whether the res gestae or excited utterance exception apply.
State v. Johnson (1994), 71 Ohio St. 3d 332, 337-339 -- Homicide victim's allegation that her brother had tried to rape her, related to her boyfriend within minutes, was admissible as an excited utterance. Same allegation repeated to three others later on, possibly while upset but after an opportunity for reflection, were not admissible.
State v. Chappell (1994), 97 Ohio App. 3d 515 -- Though so called excited utterances came 32 hours after the incident, court does not find admission improper as appeared to be the first time nine year old victim felt able to report that she had been raped. Also see In re Michael (1997), 119 Ohio Ap. 3d 112.
State v. Justice (1994), 92 Ohio App. 3d 740 -- Court concludes that statements by a domestic violence victim to an officer immediately after the incident were excited utterances, but that the written statement she then made out was not. Dubious decision, though opinion acknowledges obligation to defer to factual findings of the trial court.
State v. Jackson (1993), 92 Ohio App. 3d 467 -- Statements to officer while undergoing treatment at emergency room were not excited utterances.
State v. Fox (1990), 66 Ohio App. 3d 489 -- Statements to an investigator the day following an incident found under the circumstances to be properly admitted as excited utterances. At p. 489: "The focus is not on a specific time frame but upon whether the excitement of the assault is still dominant over the child declarant's thought processes and whether the child's statements were unreflective expressions of her belief." Also see Presley v. Presley (1990), 71 Ohio App. 3d 34; State v. Barton (1991), 71 Ohio App. 3d 455 (three hour delay acceptable).
State v. Fenton (1990), 68 Ohio App. 3d 412 -- It was unreasonable for the court to apply the excited utterance exception to the hearsay rule to statements made by the victim to her mother concerning abuse which had ended approximately one year before the statements were made.
State v. Hobbs (1996), 113 Ohio App. 3d 396 -- Police executing warrant asked 12-year old what she was doing in van. Child became hysterical and blurted out "it's (marijuana) in the van, my grandma had me put it in the van." Found to be an excited utterance.
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.
State v. Hunt (1989), 63 Ohio App. 3d 471 -- Court properly refused to admit as an excited utterance videotaped interrogation of mentally retarded and incompetent adult witness, conducted sixteen days after the alleged incident.
State v. Cornell (1998), 129 Ohio App. 3d 106 -- Court admitted domestic violence victim's statements to officers as excited utterances. Court improperly prevented defense from questioning officer about declarant's prior "misuse of 911" conviction.

Hearsay Explaining Conduct, Event or Condition

State v. Jones, Lucas App. No. L-00-1231, 2003-Ohio-219, ¶48-72 -- Officer's repetition of hearsay to the effect defendant was heavily involved in dog fighting went beyond explanation of conduct. Violation of the Confrontation Clause held not to be harmless beyond a reasonable doubt.
State v. Mason (2001), 143 Ohio App. 3d 114 -- Witness's testimony that K.T. told him to contact someone at state license bureau explained conduct and was not received for the truth of the matter asserted.
State v. Penland (1998), 132 Ohio App. 3d 176 -- Officer's recorded statements over the radio during a foot chase admissible under Evid. R. 803(1).
State v. Williams (1996), 115 Ohio App. 3d 24, 38-41 -- Search warrant, underlying affidavit and transcript of hearing were properly admitted to explain police conduct during a raid, which resulted in a shoot out, leading to the defendant's claim of self-defense. But it was error not to instruct the jury as to the limited purpose for which such materials could be considered. Error was not offset by fact officers later testified to many of the same matters, which testimony was covered by a proper limiting instruction.

Declarant is Unavailable, Foundation Requirements

Giles v. California (2008), 128 S. Ct. 2678 – State was allowed to use the victim‘s statements to a police officer responding to a domestic violence call at the defendant‘s trial for her murder on the basis of forfeiture by wrongdoing. Crawford was decided while the appeal was pending. Under Crawford an exception was allowed to the right to cross-examine witnesses only when such an exception was recognized at the time of the founding. Forfeiture by wrongdoing does not date back that far. Until 1985 no court applied the forfeiture by wrongdoing doctrine except when the defendant‘s conduct was calculated to prevent a witness from testifying.
State v. Wolderufael, Franklin App. No. 02AP-1148, 2003-Ohio-3817 -- Officer's statement that the informant used to complete an underage liquor purchase was unavailable because he was attending college in West Virginia was insufficient to establish unavailability for purposes of the Confrontation Clause and Evid. R. 804. Testimony was required as to efforts to secure the witness, such as a request he attend. Confidential informant subpoenas issued to the officer were not sufficient.
Ohio v. Roberts (1980), 448 U.S. 56, 65 -- "The Confrontation Clause operates in two separate ways to restrict the range of admissible hearsay. First...the Sixth Amendment creates a rule of necessity. In the usual case (including cases where prior cross-examination has occurred), the prosecution must either produce, or demonstrate the unavailability of, the declarant... The second aspect operates once a witness is shown to be unavailable...(T)he Clause countenances only hearsay marked with such trustworthiness that 'there is no material departure from the reason of the (hearsay) rule.'"
State v. Smith (1979), 58 Ohio St. 2d 344 -- The burden of proving unavailability rests on the party offering the evidence. Also see State v. Riggins (1986), 35 Ohio App. 3d 1, 4.
State v. Williams (1988), 38 Ohio St. 3d 346, 348 -- While a witness may be unavailable, to be admissible a statement must fall within one of the five exceptions listed in Evid. R. 804(B).
State v. Keairns (1984), 9 Ohio St. 3d 228 -- Mere representation by the prosecutor that a witness has been subpoenaed and has failed to appear is not sufficient to establish unavailability. At p. 232: "A showing of unavailability under Evid. R. 804 must be based on testimony of witnesses rather than hearsay not under oath unless unavailability is conceded..." Also see State v. Bragg (1981), 2 Ohio App. 3d 193.
In re Carter (1997), 123 Ohio App. 3d 532 -- Court finds statements of unavailable codefendant were improperly admitted applying the two part test of State v. Keairns (1984), 448 Ohio St. 3d 228. Though ordinarily sworn testimony is required to demonstrate unavailability, this was conceded. However, the state failed to demonstrate reliability, which for statements against penal interest is to be measured by spontaneity, corroboration, whether the statements were actually self-incriminating, and whether the declarant was available for cross-examination. Also the statements must be shown to be trustworthy for purposes of the Confrontation Clause.
State v. Young (1984), 20 Ohio App. 3d 269, 271 -- Use of the Uniform Act to Secure the Attendance of Witnesses from Without the State (R.C. 2939.25-2939.29) was not essential to prove unavailability where prosecutor had in good faith relied upon agreement witness would come and testify.
State v. Black (1993), 85 Ohio App. 3d 771 -- (1) Substantial, though not exhaustive, efforts to locate witness were sufficient to establish unavailability as predicate for introduction of prior testimony. (2) Error in the scope of cross-examination permitted at the prior trial meant the defendant did not have the opportunity or similar motive to develop the testimony of that witness and prior testimony could not be reintroduced.
State v. Hatcher (1996), 108 Ohio App. 3d 629 -- Issue was whether the credibility of an unavailable witness, whose testimony was read to the jury, may be impeached by record of prior felony conviction. One judge concludes it may, without it having been previously shown to the witness as required by Evid. R. 609(F). Dissenting judge disagrees. Concurring judge finds fact convictions were more than ten years in the past and time of parole release not a matter of record of primary significance.
State v. Williams (1975), 43 Ohio St. 2d 88 -- Paragraph two of the syllabus: "Where on a motion for a new trial based on newly discovered evidence, movant seeks to introduce hearsay evidence which purports to be within the declaration-against-penal-interest exception to the hearsay rule, he must first establish the unavailability of the declarant." (By attempt to subpoena, etc.) Also see State v. Cardine (January 13, 1981), Franklin Co. App. No. 79AP-874, unreported (1981 Opinions 3, 10-11).

Declarant is Unavailable, Declarations Against Penal Interest

State v. Swann, 119 Ohio St. 3d 552, 2008-Ohio-4837 – Trial court refused to allow testimony by four witnesses that another person had claimed responsibility for the shooting the defendant was charged with. At issue on appeal was whether the corroboration requirement of Evidence Rule 804(B)(3), concerning declarations against penal interest, deprives defendant of the constitutional right to present a complete defense, applying Holmes v. South Carolina (2006), 547 U.S. 319. Syllabus: "The corroboration requirement of Evid.R. 804(B)(3) rationally serves a legitimate interest in the admission of trustworthy evidence, and therefore exclusion of a criminal defendant‘s proffered evidence for lack of corroboration does not deprive a defendant of the right to present a complete defense." Reverses State v. Swann, 171 Ohio App. 3d 304, 2007-Ohio-2010, but remanded for determination whether there was sufficient corroboration for admission of the proffered statements.
State v. Goff, 154 Ohio App. 3d 59, 2003-Ohio-4524 -- Wife believed assisting her husband in the artificial insemination of his stepdaughter was not criminal. Husband claimed this made her statements inadmissible as statements against interest. Court finds the requisites for admission were met, as (1) the declarant refused to testify, and was thus unavailable, (2) the statement subjected the declarant to criminal liability, and a reasonable person in that position would have made the statement if it was not true, and (3) corroborating circumstances demonstrated trustworthiness. Confrontation claim rejected as well.
State v. Clowers (1999), 134 Ohio App. 3d 450 -- Boyfriend and wife both confessed to murder of husband. Wife's confession was suppressed and charges against her were dismissed. Boyfriend was not allowed to use her confession at his trial. While her statements were against her penal interest, it was not established that she was unavailable as a witness, nor was the reliability of her statements established, since they were inconsistent and had been suppressed.
State v. Gonzalez (2000), 138 Ohio App. 3d 853 -- Applying Lilly v. Virginia (1999), 527 U.S. 116 and State v. Madrigal 87 Ohio St. 3d 378, 2000-Ohio-448, codefendant's statements were not admissible as there was nothing to rebut the presumption of unreliability. Corroborating evidence is irrelevant under Lilly and Madrigal. Also see State v. Lather, Ottawa App. No. OT-02-024, 2003-Ohio-1866. Compare State v. Carroll, Hamilton App. No. C-020777, 2003-Ohio-5260 where the officer should not have mentioned a codefendant's confession, but the testimony was induced by a question on cross.
State v. Issa 93 Ohio St. 3d 49, 57-61, 2001-Ohio-1290 -- Applying Lilly v. Virginia (1999), 527 U.S. 116 and State v. Madrigal 87 Ohio St. 3d 378, 2000-Ohio-448, codefendant's statements to others were admissible as they did not shift blame to the defendant and exposed him as the gunman in a double homicide.
State v. Marshall (2000), 136 Ohio App. 3d 742 -- Applying Lilly v. Virginia (1999), 527 U.S. 116 and State v. Madrigal 87 Ohio St. 3d 378, 2000-Ohio-448, codefendant's statements were admissible since they met the three conditions for admission of statements against penal interest and there were particularized guarantees of trustworthiness, including that the statement was self-inculpatory, was not made while he was under the influence or pursuant to a deal with the prosecution, and was corroborated by other evidence. Also see State v. Anderson, 154 Ohio App. 3d 789, 2003-Ohio-5439.
State v. Sumlin (1994), 69 Ohio St. 3d 105 -- While statements against penal interest may be admitted when the declarant is unavailable, admissibility is a matter of judicial discretion, guided by indicia of reliability. No abuse of discretion found where statement inculpated the declarant without completely exonerating the defendant, and where other circumstances were somewhat suspicious. Also see State v. Saunders (1984), 23 Ohio App. 3d 69, 73; State v. Quillen (June 11, 1991), Franklin Co. App. No. 90AP-1272 (1991 Opinions 2719); State v. Landrum (1990), 53 Ohio St. 3d 107, 113-115.
State v. Madrigal (2000), 87 Ohio St. 3d 378 -- Accomplice made two statements to the police, the first untruthfully, the second minimizing his involvement. When he refused to testify, both statements were read to the jury, admitted pursuant to Evid. R. 804(B)(3). Syllabus: "(1) Hearsay statements are deemed sufficiently reliable to allow their admission into evidence without the benefit of cross-examination when the statements (1) fall within a firmly rooted exception to the hearsay rule, or (2) contain adequate indicia of reliability. (Ohio v. Roberts [1980], 448 U.S. 56, 66...followed. (2) An accomplice's confession that inculpates a criminal defendant is not within a firmly rooted exception to the hearsay rule as that concept has been defined by Confrontation Clause jurisprudence. (Lilly v. Virginia [1999]...119 S.Ct. 1857, 1898-1899...followed; State v. Gilliam [1994], 70 Ohio St. 3d 175...to the extent inconsistent herewith, overruled. (3) Out-of-court statements made by an accomplice that incriminate the defendant may be admitted as evidence if the statement satisfies the second prong of the test announced in Ohio v. Roberts, supra."
Lilly v. Virginia (1999), 527 U.S. 116 -- The Confrontation Clause permits admission of statements within firmly rooted exceptions to the hearsay rule, whose conditions over time have proven to remove the temptation to falsehood and enforce adherence to the truth as would an oath. But not all declarations against penal interest qualify. Statements of an accomplice admitting some wrongdoing, but shifting primary blame to others are presumptively unreliable.
State v. Carpenter (1997), 122 Ohio App. 3d 16 -- Operator of escort services was tried for promoting prostitution and possession of criminal tools. State was allowed to introduce prior statement of 16-year old "escort" who had returned to live with her family in Chicago, and had not honored subpoena. The three conditions for admissibility were met: (1) Investigation into her whereabouts adequately established unavailability. (2) Statements were against penal interest. (3) Corroborating circumstances established trustworthiness. However, a portion of the statement inculpating the defendant, but not the "escort" should not have been admitted.
State v. Patterson (1996), 110 Ohio App. 3d 264, 272-274 -- Court did not err by excluding those portions of statements of deceased which were not against penal interest. Chambers v. Mississippi (1973), 410 U.S. 284 only stands for the proposition that the hearsay rule is not to be applied mechanistically to exclude testimony which is trustworthy when the defendant's constitutional rights are involved.
State v. Branham (1995), 104 Ohio App. 3d 355 -- Husband's death by crossbow bolts led to separate prosecution of wife and the man she was having an affair with. Boyfriend sought to introduce widow's statements accepting responsibility for her husband's death and exonerating boyfriend. While she was an unavailable witness, and statements were against her penal interest, trial court was permitted to find surrounding circumstances indicative of unreliability. Specifically, she had a motive to fabricate, had made some statements in jest, and thought she had a viable defense in the battered woman syndrome. See dissent for the proposition that reliability was a matter for the jury to weigh.

Declarant is Unavailable, Other Circumstances

State v. Fry, 125 Ohio St. 3d 163, 2010-Ohio-1017 -- ¶106-109 – Debatable application of the forfeiture by wrongdoing doctrine. Defendant was charged with murdering girlfriend, who was the prosecuting witness in pending domestic violence charges. Her statement to a police officer at the time of the incident may have been “testimonial” for purposes of Crawford but is admissible because, in the court’s view, Giles v. California permits application of the doctrine when the defendant has engaged in conduct designed to prevent the witness from testifying. ¶110-114: Applying the objective witness test, the court concludes statements to a “Developing Options for Violent Emergencies” nurse were made for medical purposes, including identification of the defendant as the perpetrator. ¶115-118: Further statements to a victims assistance advocate also admissible under the forfeiture by wrongdoing doctrine and the court’s reading of Giles.
State v. Ray, 189 Ohio App. 3d 292, 2010-Ohio-2348 – Iraq War veteran was robbed and shot in the neck while waiting at a bus stop with his girlfriend. His condition was grave, but he made progress before dying of meningitis five months after the robbery. A hearing was held before trial addressing the admissibility of a list of statements, gestures, and a photo ID made during the months after the robbery. Most were excluded by the trial court and the state took an interlocutory appeal. The Court of Appeals, applying Crawford and dying declaration analysis, concludes only two hand gestures were admissible as excited utterances.
State v. Matthews, 189 Ohio App. 3d 446, 2010-Ohio-4153 ¶25-36 – Ice pick driven through the victim’s brain from ear to ear was removed, but victim died of complications a month later. Despite the horrific nature of the injury, statements were not admissible as dying declarations. Initial statements to medical personnel were for diagnosis and treatment. Later statements to officers were excited utterances. Subsequent statements to investigators were testimonial and inadmissible, however, error was harmless.
State v. Hand, 107 Ohio St. 3d 378, 2006-Ohio-18, ¶75-108 -- Defendant had a friend kill three of his four wives over a 26-year period, murdering the friend on the final occasion. Pursuant to Evidence Rule 804(B)(3) (waiver by misconduct) the trial court allowed in hearsay statements by the friend made during that period of time. The Supreme Court finds the state had established by a preponderance of the evidence that the defendant engaged in wrongdoing that resulted in the friend's "unavailability" and that his purpose was to make him unavailable at trial. Though charges were not pending, the rule applies to potential witnesses. Unavailability did not have to be the sole motivation for the defendant's actions. Self defense claim did not have to be considered as it was not raised at the evidentiary hearing on admissibility. Statements were also admissible as being against penal interest and as the statements of a co-conspirator.
State v. Reese, 165 Ohio App. 3d 21, 2005-Ohio-7075 -- Owner of a stolen ring testified that her mother had told her the ring was purchased by her father for $3,500. There is no Crawford violation because the statement was nontestimonial, but the statement was not admissible under the family history exception set forth in Evidence Rule 804(B)(4).
State v. White, Montgomery App. No. 20324, 2005-Ohio-212 -- Foundation requirements were not met for admission at trial of the of victim's testimony at the suppression hearing. Teenage felonious assault victim was unnerved and uncooperative. Since no effort was made to enforce the subpoena, declaration of unavailability was premature. Furthermore, the lack of cooperation meant defense counsel had not had the opportunity to adequately and meaningful test and develop the former testimony. Affirmed anyway based on the strength of other evidence.
State v. Workman, 171 Ohio App. 3d 89, 2007-Ohio-1360 -- Burglary victim did not appear at trial of former boyfriend. The court erroneously allowed the use of her transcribed testimony at the preliminary hearing. Unavailability was not established where the state made a single unsuccessful attempt to serve a subpoena during the days before trial. The state was required to establish unavailability through the testimony of witnesses, not unsworn hearsay.
State v. Nevins, 171 Ohio App. 3d 97, 2007-Ohio-1511 -- The trial court properly concluded that the elements of unavailability had been established. However, the court improperly received hearsay testimony concerning that witness's prior out of court identification. While his preliminary hearing testimony that he had made a photo ID was acceptable under Crawford, he was not expressly asked who he had identified. Also, the state did not give adequate advance notice of the unavailability claim.
State v. Boyes, Licking App. Nos. 2003CA0050, 0051, 2004-Ohio-3528 -- The body of an informant who told police of the defendant's involvement in two arsons was found shortly before he was to testify the grand jury. His prior hearsay statements were properly admitted under the Evid.R. 804(B)(6) "forfeiture for wrongdoing" exception. By a preponderance of the evidence the state established the defendant was responsible for the death.
State v. Brown (1981), 3 Ohio App. 3d 131 -- A defendant who elects not to testify does not become an "unavailable declarant" on the ground that he is "exempted by ruling of the court on the ground of privilege from testifying concerning the subject matter of his statement." Also see State v. Gatewood (1984), 15 Ohio App. 3d 14; State v. Watkins (1981), 2 Ohio App. 3d 403.
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)" State wanted to use wife's testimony at the preliminary hearing after privilege was asserted at trial.
State v. Young (1983), 5 Ohio St. 3d 221 -- Paragraph one of the syllabus: "A statement by a co-defendant who is granted a separate trial may not be read into evidence at the trial of the other co-defendant (Evid. R. 804[B]), when the party against whom it is offered did not have the opportunity and similar motive to develop the testimony by direct, cross, or redirect examination to satisfy the right of confrontation."
State v. Houston (1985), 26 Ohio App. 3d 26 -- State's witness balked at testifying, then claimed had no recollection of robbery. State was erroneously allowed to introduce the witness' statement to a police officer. While the witness was "unavailable" the specific exceptions set forth in Evid. R. 804 did not apply.
State v. Knight (1984), 20 Ohio App. 3d 289, 292 -- For a dying declaration to be admissible, the declarant must have believed death was imminent. This is a preliminary fact to be determined by the court. Also see State v. Vinson (1990), 70 Ohio App. 3d 391, 399.
State v. Jackson (1993), 92 Ohio App. 3d 467 -- Mistrial was declared before victim was cross examined. Direct had referred to a date other than that in indictment, confounding alibis advanced by multiple defendants. Victim was shot and killed four days before retrial. Prior testimony was not admissible pursuant to Evid. R. 804(B)(1). With the confusion as to dates, the motive to develop testimony was not the same.
State v. Gilliam (1994), 70 Ohio St. 3d 17 -- Court finds no confrontation violation in the playing of a codefendant's post arrest statement after he had been called to the stand and exercised his Fifth Amendment privilege. See dissent. Also see State v. Julian (1998), 129 Ohio App. 3d 828 on the question of whether the codefendant's entire statement may be admissible in view of Williamson v. United States (1994), 512 U.S. 594.
State v. Tucker (1998), 81 Ohio St. 3d 431, 438-442 -- Codefendant's recorded statement was played for the jury after he refused to testify and thus became "unavailable" as a witness. Sheriff who did the questioning said some of what was said was not truthful. Opinion defines issue surrounding which portions of statements were admissible, then sidesteps, holding error, if any, was harmless. See Williamson v. United States (1994), 512 U.S. 594 interpreting Fed. R. Evid. 804(b)(3).
State v. Rowe (1993), 92 Ohio App. 3d 652 -- Deposition of elderly witness was admitted in violation of the defendant's right to confrontation, the state having failed to establish that the witness was unavailable within the meaning of Evid. R. 804(A). Affidavit from physician was unsworn and not sufficiently specific as to the nature of ailments, prosecutor had not spoken with the witness during the year since the deposition was taken, and the defense claimed the witness was in fact able to shop and socialize.

Statements Relating to Diagnosis and Treatment

State v. Arnold, 126 Ohio St. 3d 290, 2010-Ohio-2742 – Syllabus: “(1) Statements made to interviewers at child-advocacy centers that serve primarily a forensic or investigative purpose are testimonial and are inadmissible pursuant to the Confrontation Clause. (2) Statements made to interviewers at child-advocacy centers that are made for medical diagnosis and treatment are nontestimonial and are admissible without offending the Confrontation Clause. Compare State v. Lukacs, 188 Ohio App. 3d 597, 2010-Ohio-2364, decided two weeks before Arnold.
State v. Brooks, 186 Ohio App. 3d 694, 2010-Ohio-2446 – A three year old child’s vague and conflicting statement about what may have happened when he was bathed by his mother’s boyfriend led to GSI and kidnapping convictions. The state sought to vindicate statements to the custodial paternal grandmother as being in furtherance of medical diagnosis and treatment or as excited utterances., but in view of the passage of time and the manner of questioning they were neither. Convictions also reversed as not being supported by legally sufficient evidence.
State v. Muttart, 116 Ohio St. 3d 5, 2007-Ohio-5267 -- 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.
State v. Stahl, 111 Ohio St. 3d 186, 2006-Ohio-5482 -- Ohio adopts the "objective witness test" for evaluation of Crawford claims. Syllabus: "(1) For Confrontation Clause purposes, a testimonial statement includes one made 'under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial.' Crawford v. Washington (2004), 541 U.S. 36, 52...followed.) (2) In determining whether a statement is testimonial for Confrontation Clause purposes, courts should focus on the expectation of the declarant at the time of making the statement; the intent of the questioner is relevant only if it could affect a reasonable declarant's expectations." The majority concludes statements by the victim of an oral rape to a sexual assault nurse examiner were made for diagnosis and treatment, notwithstanding indication efforts were primarily directed towards evidence gathering. Three dissenters concur in adoption of the test but conclude the statements to the nurse were testimonial in nature.
State v. Burgess, 162 Ohio App. 3d 291, 2005-Ohio-3747, ¶25-28 -- Rape victim's statements to an emergency room nurse were properly admitted as the victim would have perceived the nurse's questions as being related to diagnosis and treatment, which she in fact received for her injuries.
State v. Sheppard, 164 Ohio App. 372, 2005-Ohio-6065 -- Child rape victim's testimony probably didn't cover the elements, but her statement to a "licensed clinical counsellor" did. The opinion states that one of the objectives was to determine the nature and extent of sexual abuse allegations. Stretching Crawford the court concludes the child's statements were nontestimonial, and were made for purposes of diagnosis and treatment. Hung jury the first time the case was tried. LWOP the second time.
State v. Woods, Cuyahoga App. No. 82789, 2004-Ohio-2700, ¶9-17 -- Coordinated intake interview of a child victim of sex offenses by a social worker and police officer did not fall within the diagnosis and treatment exception.
State v. Melton (2001), 141 Ohio App. 3d 713, 722-723 -- The medical diagnosis and treatment exception extends to statements made to paramedics. Also see State v. Geboy (2001), 145 Ohio App. 3d 706, 720-721 extending the exception to statements made to a "licensed mental health counsellor."
State v. Young, Montgomery App. No. 19466, 2003-Ohio-4706, ¶ 33-48 -- Victim's statements to an emergency room nurse identifying the defendant as the person who molested her were not admissible as business records pursuant to Evid. R. 803(6). But they were admissible pursuant to Evid. R. 804(4) as statements relating to diagnosis and treatment since identification may be tied to addressing sexually transmitted diseases, the potential for future abuse, and emotional and psychological impact.
White v. Illinois (1992), 502 U.S. 346 -- The Confrontation Clause does not require the production of the declarant at court before hearsay statements may be introduced under the spontaneous declaration or medical examination exceptions to the hearsay rule.
State v. Dever (1992), 64 Ohio St. 3d 401 -- Syllabus: "(1) A trial court does not abuse its discretion when it admits a child declarant's statements made for the purpose of medical diagnosis or treatment pursuant to Evid. R. 803(4), without first establishing the child declarant's unavailability to testify. (State v. Boston [1989], 46 Ohio St. 3d 108, modified.) (2) Statements made by a child during a medical examination identifying the perpetrator of sexual abuse, if made for purpose of diagnosis and treatment, are admissible pursuant to Evid. R. 803(4), when such statements are made for the purposes enumerated in that rule. (3) The admission into evidence of a hearsay statement pursuant to a firmly rooted hearsay exception does not violate a defendant's right of confrontation. (White v. Illinois [1992], 502 U.S. __, 112 S. Ct. 736, 116 L. Ed. 2d 848, followed.)" Also see State v. McWhite (1991), 73 Ohio App. 3d 323 (statements made to a clinical psychologist).
State v. Humphries (1992), 79 Ohio App. 3d 589, 596 -- The exception to the hearsay rule for statements made for purposes of medical diagnosis and treatment applies only to the statements of the patient. It does not apply to the physician's statements contained in the report.
Hatfield v. Andermat (1988), 54 Ohio App. 3d 188 -- Headnote 2: "Statements by an injured person to an emergency squad regarding the cause of the injury or the manner in which the accident happened are not admissible insofar as they are not pertinent to the diagnosis or treatment of the patient."
State v. Clary (1991), 73 Ohio App. 3d 42, 50-53 -- Statements by a rape victim to an emergency room physician that she had been orally and vaginally assaulted by two men, that she saw a knife, that she was punched in the face twice and threatened were not admissible insofar as they were not pertinent to actual medical diagnosis and treatment. Court discusses but does not completely follow United States v. Iron Shell (8th Cir. 1980), 633 F. 2d 77.
State v. Sutorius (1997), 122 Ohio App. 3d 1, 9-11 -- Court improperly applied Evid. R. 803(4) in admitting victim's statements to marriage counsellor and psychiatrist. Court erroneously looked to witness's state of mind instead of victim's in weighing trustworthiness, and failed to determine whether statements made to the marriage counsellor carried the same guarantee of trustworthiness as statements to an M.D. Furthermore, witnesses were improperly allowed to give their opinion as to statements and the dangerousness of the defendant.
State v. Vaughn (1995), 106 Ohio App. 3d 775, 780-781 -- Statements to psychologist as to incidents of sexual abuse fell within the Evid. R. 803(4) exception as it appears from the record that diagnosis and treatment was the basis for the referral, and the statements were in furtherance of this purpose.
State v. Storch (1993), 91 Ohio App. 3d 565 -- Exception encompasses statements made to a clinical psychologist.
State v. Miller (1988), 43 Ohio App. 3d 44, 46-47 -- Testimonial competency of a child is not a precondition for admission of statements made by the child to a physician during diagnosis and treatment.
In re Legg (1993), 68 Ohio Misc. 2d 1 -- Statements by child victim to case worker were not admissible since the worker's role did not require her to render a decision equivalent to medical treatment or diagnosis. Also see State v. Chappell (1994), 97 Ohio App. 3d 515, 529-535. Compare Presley v. Presley (1990), 71 Ohio App. 3d 34. -- Exception may be extended to statements made to social workers, if pertinent to diagnosis or treatment. (Dubious since social workers do not generally engage in diagnosis and treatment of the sort the rule relates to.)

Then Existing State of Mind or Physical Condition

State v. Leonard, 104 Ohio St. 3d 54, 2004-Ohio-6235 -- Statements under Evid. R. 803(3) concerning present state of mind must point towards the future, not the past.
State v. Yarbrough, 95 Ohio St. 3d 227, 2002-Ohio-2126, ¶30-40 -- Statement by a declarant now deceased that he wanted the informant against him killed was admissible to show the declarant's then existing state of mind in relation to the murder for hire prosecution of the actual killer. Court goes on to conclude another statement was admissible as a statement against interest, notwithstanding a claim of marital privilege and a Lilly v. Virginia argument.
State v. Hawn (2000), 138 Ohio App. 3d 449 -- Though noting the apparent conflict between State v. Apanovitch (1987), 33 Ohio St. 3d 19, and State v. Greer (1988), 39 Ohio St. 3d 236, the court feels compelled to follow Apanovitch, finding Evid. R. 803(3) made testimony concerning victim's fear of the defendant admissible. But specifics of prior incidents of domestic violence were not relevant within the confines of Evid. R. 404(B), since they did not bear upon disputed issues, leading to reversal.
State v. Steffen (1987), 31 Ohio St. 3d 111, 119-120 -- Victim's statement to her mother that she intended to remain a virgin was inadmissible as either reference to a then existing physical condition or her state of mind. Also see State v. Sage (1987), 31 Ohio St. 3d 173, 179-181 which tacitly accepts ruling by the Franklin County Court of Appeals that discussion of sex between victim and her mother was inadmissible.
State v. Apanovitch (1987), 33 Ohio St. 3d 19, 21 -- State of mind exception permitted witnesses to testify victim expressed fear of victim. Such testimony must point towards the future and not the past and may not go into basis. Compare State v. Stewart (1991), 75 Ohio App. 3d 141.
State v. Sutorius (1997), 122 Ohio App. 3d 1, 7-9 -- Wife was tried for murder of her most recent husband, whose suicide she was claimed to have faked. Court allowed testimony by victim's daughter, sister, friend, marriage counsellor, psychiatrist and a policeman that he had said he was afraid of his wife. Held that testimony was properly limited to state of mind, without going into reasons therefore, and was admissible under Evid. R. 803(3). So were answering machine messages to the effect the victim though he might not live through the turmoil in his marriage, which the defense had claimed were improperly admitted dying declarations.
In re Legg (1993), 68 Ohio Misc. 2d 1 -- The effect a child victim's statements may have had on her mother or the investigating officer was irrelevant as did not have any significant bearing on resolution of the factual issues in the case.

Prior Recollection Recorded

State v. Clay, 187 Ohio App. 3d 633, 2010-Ohio-2720 – Victim provided a written statement to the police at the time of a break in but was a reluctant witness at trial, on the stand responding she was unsure or didn’t remember. The statement fell within the definition of hearsay. It could not be read aloud to the jury in furtherance of refreshing the witness’s recollection. However, since she had become an adverse witness it was admissible as past recollection recorded pursuant to Evid. R. 803(5). Such material comes in only when a foundation is laid through the testimony of the witness and use is limited to adverse parties. If admissible, it comes in for the truth of the matter asserted, not merely as impeachment.
State v. Perry, 147 Ohio App. 3d 164, 2002-Ohio-1171 -- Prosecutor took an interlocutory appeal after judge ruled he could not play a videotaped interview of a child victim, recorded within four days of the incident. While the statement did not have to be in writing, as the trial judge apparently believed, two foundational requirements were not met for admission under Evid. R. 803(5): (1) The child did not testify that the videotape correctly reflected the knowledge she had of the events at the time it was made. (2) The prosecutor's suggestion the child remembered details of the rape but not events before and after ran contrary to the requirement that the declarant now have insufficient recollection of events to testify fully and accurately.

Child Statements in Abuse Cases - Evid. R. 807

State v. Silverman, 121 Ohio St. 3d 581, 2009-Ohio-1576 – Syllabus: "A hearsay statement of a child declarant can be admitted under Evid. R. 807 without a determination of the child‘s competence to testify. (State v. Said (1994), 71 Ohio St. 3d 473, 644 N.E. 2d 337, limited.)" State v. Silverman, 176 Ohio App. 3d 12, 2008-Ohio-618, reversed. Four year old victim died in a house fire set by his mother, thus his competency could not be determined.
In re Corry M. (1999), 134 Ohio App. 3d 274 -- (1) Statements of child victim were properly excluded as person to whom they were made acknowledged child may not have been truthful, there were concerns the witness may have been coached, and the statements were inconsistent. (2) While statements made for diagnosis and treatment need not be made directly to a medical professional, they are properly excluded where there is no basis for concluding that the child's participation in an interview was so motivated.
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.
State v. Cooper (2000), 139 Ohio App. 3d 149 -- Expert testimony established necessary foundation for admission of videotaped depositions of juvenile victims.
In re Pryor, Ashland App. No. 02COA037, 2003-Ohio-2988 -- For purposes of Evid. R. 807(A)(3), the defendant's noncustodial, voluntary statements to the police may constitute independent proof of the sexual acts at issue.
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. Delay meant statements were not excited utterances. Nor were they a present sense impression, or reflective of then existing state of mind, or statements against interest. Sex acts weren't involved so Evid. R. 807 doesn't apply. But the court 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. Cocherl, Darke App. No. 1594, 2003-Ohio-3239 -- Testimony of child victims is not inherently trustworthy. Absence of particularized guarantees of trustworthiness meant testimony was properly excluded. No need to further enquire whether cross-examination would have been of marginal utility.
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. Black (1993), 87 Ohio App. 3d. 724 -- (1) For purposes Evidence Rule 807, a witness is not "unavailable" because they are not competent to testify. Child victim must be found competent as a witness for statements to third parties to be admissible. (2) Trial court properly concluded that the requirement of independent proof of the act charged was not satisfied by the testimony of the examining physician, which was inconclusive as to whether injuries were the result of sexual abuse or could have been caused by other means.
State v. Cardosi (1997), 122 Ohio App. 3d 70, 75 -- "...(W)hen a court finds that a child is not competent to be a witness, her testimony is 'not readily obtainable' pursuant to Evid. R. 807(B)(2)." Certification of conflict with State v. Black (1993), 87 Ohio App. 3d 724 dismissed as improvidently granted: 83 Ohio St. 3d 1206. Caution: This case involved a plain error claim, and a segue between (A)(2) and (B)(2). The following reported case of State v. Street (1997), 122 Ohio App. 3d 79, 84 takes specific exception to Cardosi, citing other court of appeals cases and State v. Said (1994), 71 Ohio St. 3d 473 for the proposition that incompetency does not mean testimony was unavailable. But according to Street some statements by an incompetent child witness may still be admissible as excited utterances.
In re Coy (1993), 67 Ohio St. 3d 215 -- Syllabus: "(1) R.C. 2151.35(F) is inconsistent with Article VIII of the Ohio Rules of Evidence and, as such, has no force or effect...(2) Evid. R. 807 should be used by trial courts in determining whether, in abuse cases, an out-of-court statement(s) made by a child who, at the time of trial (or hearing), is under the age of twelve years is admissible at the trial or hearing."
State v. Storch (1993), 66 Ohio St. 3d 280 -- Syllabus: "(1) Evid. R. 807 accords with the right of confrontation guaranteed by both Section 10, Article I of the Ohio Constitution and the Sixth Amendment of the Constitution of the United States. (2) Evid. R. 807 contemplates that a pretrial hearing will be conducted at which time the ability of the child to testify should be addressed and the initial determination as to the admissibility of the child's statements should be made." The right to confrontation is broader under the Ohio Constitution than the U.S. Supreme Court has held it to be under the federal constitution. Compare Idaho v. Wright (1990), 497 U.S. 805; White v. Illinois (1992), 502 U.S. 346.
State v. Ulis (1993), 91 Ohio App. 3d 656, 667 -- When competency to testify is at issue, determination must be made based on judge's personal observation of the child, and may not be based on a prior finding by a different judge, or the assessment by others.
State v. McWhite (1993), 91 Ohio App. 3d 508 -- Appeal arises from retrial following reversal on State v. Boston issue, since expert had been allowed to give opinion as to child's truthfulness. Court reluctantly follows State v. Storch (1993), 66 Ohio St. 3d 280, and finds that the trial court erred by not conducting a further hearing at the retrial addressed to the issue of the unavailability of the child witness. Determination of unavailability based on prior inquiry was not sufficient.
State v. Turvey (1992), 84 Ohio App. 3d 724, 735-743 -- (1) Testimony concerning an out of court identification by a child sex offense victim is admissible even though the witness has not yet testified. (2) It was error to allow one victim to testify that the other had told her she was molested as well.

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