Welcome to The Briefcase

Commentary and analysis of Ohio criminal law and whatever else comes to mind, served with a dash of snark.  Continue Reading »

×

Child Competency and Hearsay Statements

The first big decision out of the Ohio Supreme Court last week was State v. Muttart, a case in which the defendant had been convicted of three counts of raping his four-year daughter.  The trial court had allowed the doctors and nurses to testify to statements made to them by the daughter.  The appellate court had reversed one of the convictions, holding that before the hearsay statements could be admitted, the trial court had to determine that the child was a competent witness under Evidence Rule 601(A).

There was some merit to that argument; back in 1994, in State v. Said, the Supreme Court had held that a competency determination was necessary before statements could be admitted under Evid.R. 807, which establishes a broad exception for hearsay by a child in sex abuse cases.  The Court had also said, though, that admission of "excited utterances" by children didn't require a preliminary competency determination.  The question was whether these statements -- falling under the hearsay exception of statements made for purposes of medical treatment or diagnosis, under Evid.R. 803(4) -- were closer to excited utterances or to the 807 statements.

When I'd previewed the case after oral argument in May, I'd said, "Given the language in the 1994 decision, I think the Court's going to be hard-pressed to distinguish 807 statements from those made under 803(4)."  Yeah, right.  In unanimously reversing the court of appeals, the Supreme Court not only had no trouble distinguishing statements under the two rules, but gave some reason to suspect that if it had to do Said over again, it'd come to a different conclusion. 

All is not lost, however.  Even if the statement was made for purposes of medical treatment and diagnosis, that doesn't mean admission under 803(4) a foregone conclusion; the trial court still has to determine whether it's reliable.  The Court gives a helpful list:

The trial court's considerations of the purpose of the child's statements will depend on the facts of the particular case. At a minimum, we believe that a nonexhaustive list of considerations includes (1) whether the child was questioned in a leading or suggestive manner, (2) whether there is a motive to fabricate, such as a pending legal proceeding such as a "bitter custody battle," and (3) whether the child understood the need to tell the physician the truth. In addition, the court may be guided by the age of the child making the statements, which might suggest the absence or presence of an ability to fabricate, and the consistency of her declarations.  In addition, the court should be aware of the manner in which a physician or other medical provider elicited or pursued a disclosure of abuse by a child victim, as shown by evidence of the proper protocol for interviewing children alleging sexual abuse.

That's a lot of "in additions" there, but it's helpful to have on hand so that you can persuade a trial judge that admission isn't automatic.

The other case yesterday was State v. Geeslin, which concerns the due process implications of police destruction of evidence.  We'll delve into that tomorrow.  See you then.

Search

Recent Entries

  • July 26, 2017
    Supreme Court Recap - 2016 Term
    My annual review of the Supreme Court decisions from the past term
  • July 24, 2017
    What's Up in the 8th
    Some things we knew, some things we didn't
  • July 21, 2017
    Friday Roundup
    Computers and sex offenders, civil forfeiture, and phrases that should be put out to pasture
  • July 20, 2017
    Case Update
    A look at the Ohio Supreme Court's decision in State v. Oles, and did you know that Justice Ginsburg has a .311 batting average with runners in scoring position? Oh, wait...
  • July 18, 2017
    What's Up in the 8th
    Judicial bias, RVO specs, 26(B) stuff, waivers of counsel... And more!
  • July 17, 2017
    No more Anders Briefs?
    I have a case now in the 8th District where I came close to filing an Anders brief the other week. It's an appeal from a plea and sentence. The plea hearing was flawless. The judge imposed consecutive sentences, and...
  • July 13, 2017
    Sex offenders and the First Amendment
    Analysis of the Supreme Court's decision in Packingham v. North Carolina
  • July 12, 2017
    Removing a retained attorney
    What does a judge do if he thinks a retained attorney in a criminal case isn't competent?
  • July 11, 2017
    What's Up in the 8th
    The court does good work on a juvenile bindover case, and the State finally figures out that it should have indicted someone in the first place
  • July 10, 2017
    Case Update
    SCOTUS ends its term; the Ohio Supreme Court issues another opinion, and likely the last one, on the trial tax