Yesterday and today is oral argument day in the Ohio Supreme Court, and there are a number of interesting cases on tap.  One of the most important is State v. Crager, where the defendant had been convicted of aggravated murder.  The state had introduced DNA evidence, but the scientist who had performed the DNA tests was on maternity leave at the time of trial; another scientist testified, based on the first one’s notes.  The 3rd District tossed out the conviction, holding that since the scientist who testified wasn’t the one who did the tests, that violated the rule in Crawford v. Washington; basically, the DNA results were “testimonial statements,” and only actual confrontation at trial with the person who performed the tests would satisfy the 6th Amendment.  (I’ve done several posts on Crawford, including the ones here and here.)

The analysis and discussion in Crager is top-notch.  It acknowledges that numerous courts have viewed the term “testimonial” much more restrictively, and have let such evidence in under the “business records” exception.  But it recognizes, as some Ohio courts have failed to do, that simply because evidence falls within one of the hearsay exceptions doesn’t mean it’s admissible after Crawford.  It notes that Crawford defines  testimonial statements as ones “that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial,” and that this clearly qualifies. 

I’m not sure of the outcome — keep in mind Bensing’s Rule about handicapping criminal appeals to the Supreme Court: take the state and give the points — but Crager should be read just for its concise and cogent treatment of the Crawford question. 

A couple of other cases merit mention.  In Celmer v. Rodgers, the 11th District had upheld the trial court’s allowing an expert witness to testify in a medical malpractice case, despite the fact that he hadn’t practiced in seven months.  The court adopted a loose interpretation of Evidence Rule 601(D)’s requirement that an expert in such a case had to “devote at least one-half of his or her professional time to the active clinical practice in his or her field of licensure,” finding that the rule was more directed toward determining the expert’s past experience rather than present activity.

This is probably a valid point; as the court notes, strict interpretation of the rule would permit a novice to testify, while someone with decades of experience who’d recently retired would be barred.  Once you eliminate the “present” criterion of the rule, though, it’s hard to see what you’ve got, except the unfettered power of the trial court to determine whether the expert has sufficient qualifications to be permitted to testify. 

This points to more of a problem with the rule than the decision, however.  While the trial court always makes the initial determination of expert witness competency, that usually involves little more than determining that the expert has satisfied the credentialed qualifications his profession imposes; beyond that, it’s a question of how much weight the jury decides to accord his testimony.  As the court points out, the rule here was adopted to prevent “hired gun” witnesses.  Why shouldn’t the jury be allowed to gauge the reliability of those witnesses?  If a jury can determine that someone who’s been in practice only a few years is less credible, why can’t they be entrusted to determine that someone who makes a living testifying for plaintiffs is less credible, too?  Given the abysmal success record for plaintiffs in medical mal cases, the rule arguably doesn’t so much address a problem as demonstrate the willingness of our lawmakers to kowtow to the insurance lobby.

A final case of interest is Ignazio v. Clear Channel, where the 7th District held that a provision in an employment contract requiring arbitration of all disputes was invalid because it did not provide that the arbitration was final and binding.  The agreement here allowed either party to file an appeal from the award to “a court of competent jurisdiction, where the standard of review will be the same as that applied by an appellate court reviewing a decision of a trial court sitting without a jury.”  Basically, the court found that since the agreement allowed much more expansive review than the arbitration statutes, RC 2711.10 and 2711.11 (which permit review only for things like fraud), it wasn’t “arbitration” within the meaning of Ohio law, and thus was not enforceable; essentially, because it wasn’t “arbitration” under the Ohio statutes, it wasn’t arbitration at all, and the plaintiff was left with a court remedy.

The Supreme Court could decide it on that narrow issue — which was left unresolved by an earlier plurality opinion of the Court — but how it addresses the issue of arbitration might be of some significance, too.  As I’ve noted in previous posts, such as this one and this one, the courts have adopted a mixed posture toward arbitration, oftentimes exalting it as a means of resolving disputes outside the court process, at other times strictly scrutinizing it to make sure that it’s not used to screw consumers.  A little too effusive praise for the arbitration process by the Supreme Court might inhibit that latter tendency, which would be unfortunate, because, too often, arbitration clauses are used to screw consumers.