I have taught at seminars sponsored by the Ohio Judicial College. Since I lecture for the College, I have been invited to participate in course development conferences. During these conferences there are presentations on how adults like to learn. During these presentations I have learned that adults like to learn by interacting with each other and with the presenter of new information. They also like "hands on" problem solving so that they can see how the information applies to what they do.
I recently put on a seminar for the Celebrezze-Zanghi Community Legal Education Project, Inc., an Ohio non-profit corporation. The seminar was on hearsay and the Ohio Rules of Evidence. The seminar was built around 18 hearsay problems. The problems called for determining whether the evidence being offered was hearsay and whether it was admissible.
The 17 participants were seated at round tables in groups of four to six. They read the problem, discussed the possible answers among themselves, then we discussed the answers as a group.
Both the participants and myself found this to be a great way to teach and to learn. On the evaluations that were turned in, the course was rated at a 4.86 out of a possible 5.00. Of the 17 participants, 15 turned in evaluations. In the comments sections were several comments voicing approval of the problem solving format. Participants liked the interaction among themselves and liked sharing information with other attorneys.
I am thinking about devising more such seminars and would appreciate any thoughts or comments that attorneys might have regarding topics. You can email me your suggestions at judgejameskimbler@yahoo.com. Please put the words "Seminar Suggestions" in the subject matter line.
Showing posts with label hearsay. Show all posts
Showing posts with label hearsay. Show all posts
Thursday, March 31, 2011
Friday, October 08, 2010
When Does a Document Speak for Itself?
By Judge James L. Kimbler
Medina County Common Pleas Court
A phrase that attorneys, and judges for that matter, sometimes use during trial is that a document “speaks for itself.” It is usually said when a witness is trying to explain the wording of a document or what a document means. When such an explanation is attempted, the opposing party will often object and say “Your Honor, the document speaks for itself.” After making that objection, the attorney will give the court and opposing counsel a satisfied smile as if to say, “Well, that settles that issue.”
But does it? When an attorney objects on the grounds that a document speaks for itself the objecting attorney is not making any objection recognized by the Ohio Rules of Evidence. If you look at Evidence Rules contained in Article X, titled “Contents of Writings, Recordings, and Photographs” you won’t see any rule listed that says that a document speaks for itself. Evidence Rule 1002 does require that to prove the contents of a document the original is required, but that is not the same thing as saying that the contents cannot be attacked or explained.
What the objecting attorney is really saying is one of two things:
(1)That an explanation of the document is not permitted or;
(2)That the document itself is completely self-explanatory.
If the basis of the objection is that an explanation of the document is not legally permitted, then what the attorney is saying is that such an explanation is irrelevant. In such a case, the proper objection is one based on Evidence Rule 402. If the basis of the objection is that further testimony about the document would be a waste of time, then the proper objection is one based on Evidence Rule 403.
An example of the first situation would be a contract case where there is a written contract and the terms are unambiguous. In such a situation, an attorney making the claim that a document speaks for itself is correct in the sense that evidence contradicting or explaining the contract, if made prior to or contemporaneous with the contract’s execution is not legally permitted under the parol evidence rule.
An example of the second situation might be where an attorney wants a witness to read a document to the jury that is going to come in as a exhibit. In such a situation such a reading might very well be permissible, but it could also be time consuming.
Another situation in which it might be claimed that a document “speaks for itself” is a situation where the contents of a document constitute admissible hearsay. In such a situation the trier of fact may accept the contents as true, but is certainly not required to do so, and further explanation or questioning might show why the trier shouldn’t accept the contents as true.
Ohio Rule of Evidence 806 allows impeachment of a hearsay declarant by any means that could be used if the declarant was testifying in person. So, for example, if it could be shown that the maker of the document was incompetent when the writing was made, then that fact should be allowed to be proved. Likewise, if it could be shown that the maker of the writing had a felony conviction that carried the risk of more than one year in prison that fact should also be allowed to be proved.
When the objection or comment is made that a document speaks for itself, the following analysis should be taking place: Why is the document being offered? Are the contents of the document admissible? Even if the contents are admissible, does the other party have a right to challenge the document’s contents? The answers to those three questions will usually determine whether the document does truly “speak for itself”.
Medina County Common Pleas Court
A phrase that attorneys, and judges for that matter, sometimes use during trial is that a document “speaks for itself.” It is usually said when a witness is trying to explain the wording of a document or what a document means. When such an explanation is attempted, the opposing party will often object and say “Your Honor, the document speaks for itself.” After making that objection, the attorney will give the court and opposing counsel a satisfied smile as if to say, “Well, that settles that issue.”
But does it? When an attorney objects on the grounds that a document speaks for itself the objecting attorney is not making any objection recognized by the Ohio Rules of Evidence. If you look at Evidence Rules contained in Article X, titled “Contents of Writings, Recordings, and Photographs” you won’t see any rule listed that says that a document speaks for itself. Evidence Rule 1002 does require that to prove the contents of a document the original is required, but that is not the same thing as saying that the contents cannot be attacked or explained.
What the objecting attorney is really saying is one of two things:
(1)That an explanation of the document is not permitted or;
(2)That the document itself is completely self-explanatory.
If the basis of the objection is that an explanation of the document is not legally permitted, then what the attorney is saying is that such an explanation is irrelevant. In such a case, the proper objection is one based on Evidence Rule 402. If the basis of the objection is that further testimony about the document would be a waste of time, then the proper objection is one based on Evidence Rule 403.
An example of the first situation would be a contract case where there is a written contract and the terms are unambiguous. In such a situation, an attorney making the claim that a document speaks for itself is correct in the sense that evidence contradicting or explaining the contract, if made prior to or contemporaneous with the contract’s execution is not legally permitted under the parol evidence rule.
An example of the second situation might be where an attorney wants a witness to read a document to the jury that is going to come in as a exhibit. In such a situation such a reading might very well be permissible, but it could also be time consuming.
Another situation in which it might be claimed that a document “speaks for itself” is a situation where the contents of a document constitute admissible hearsay. In such a situation the trier of fact may accept the contents as true, but is certainly not required to do so, and further explanation or questioning might show why the trier shouldn’t accept the contents as true.
Ohio Rule of Evidence 806 allows impeachment of a hearsay declarant by any means that could be used if the declarant was testifying in person. So, for example, if it could be shown that the maker of the document was incompetent when the writing was made, then that fact should be allowed to be proved. Likewise, if it could be shown that the maker of the writing had a felony conviction that carried the risk of more than one year in prison that fact should also be allowed to be proved.
When the objection or comment is made that a document speaks for itself, the following analysis should be taking place: Why is the document being offered? Are the contents of the document admissible? Even if the contents are admissible, does the other party have a right to challenge the document’s contents? The answers to those three questions will usually determine whether the document does truly “speak for itself”.
Friday, June 18, 2010
Court Clarifies When ‘Hearsay’ Evidence of Child’s Statements to Child Advocacy Interviewer Is Admissible
Ruling Distinguishes Between Statements Made for Medical, Forensic Purposes
State v. Arnold, Slip Opinion No. 2010-Ohio-2742.
Franklin App. No. 07AP-789, 2008-Ohio-3471. Judgment of the court of appeals affirmed in part and reversed in part, and cause remanded to the court of appeals.
Lundberg Stratton, O'Connor, Lanzinger, and Cupp, JJ., concur.
Pfeifer and O'Donnell, JJ., dissent.
Brown, C.J., not participating.
Opinion: http://www.supremecourt.ohio.gov/rod/docs/pdf/0/2010/2010-Ohio-2742.pdf
(June 17, 2010) In a decision announced today, the Supreme Court of Ohio held that a child’s statements made to an interviewer at a child advocacy center for purposes of medical diagnosis and treatment are non-testimonial and therefore admissible evidence at trial. The Court held further, however, that statements made to an interviewer at a child advocacy center that serve primarily a forensic or investigatory purpose are testimonial in nature and therefore are inadmissible evidence at trial.
The Court’s 4-2 majority decision, authored by Justice Maureen O’Connor, partially affirmed and partially reversed a decision of the 10th District Court of Appeals, and remanded the case to that court for additional proceedings.
In December 2005, the mother of a 4-year-old Columbus girl identified as M.A. called police to report her suspicion that the child had been sexually assaulted that evening by Michael Arnold. The child was transported to an emergency room where a rape kit examination was performed. She was then sent home overnight. The following morning M.A. was taken to the Center for Child and Family Advocacy (CCFA), a special multidisciplinary unit for victims of child and domestic abuse located at Nationwide Children’s Hospital. Kerri Marshall, a social worker employed by CCFA, conducted an in-depth interview with M.A. outside the presence of her mother during which Marshall asked a number of questions about what had taken place between the child and Arnold. The purpose of Marshall’s interview was to “gather as much information as possible,” while only subjecting the child to one interview. Thus, the interview was viewed live via closed-circuit television by several observers in another room, including a police detective and a nurse practitioner. The entire interview was also recorded on a digital video disk. Following the interview, the nurse practitioner examined M.A. The nurse practitioner testified at trial that the interview guided her examination and enabled her to determine whether to conduct a genital examination and whether to test M.A. for sexually transmitted infection. During the examination, the nurse practitioner found two abrasions on M.A.’s hymen, which she testified were “diagnostic” of sexual abuse.
Based on M.A.’s statements during the CCFA interview and other evidence, Arnold was arrested and charged with two counts of rape of a child under the age of 10. The court determined that M.A. was unavailable to testify and be cross examined in court. Over Arnold’s objections, the trial court allowed the state to show the full video of M.A.’s interview with Marshall at the CCFA to the jury. Arnold was subsequently convicted on one count of child rape and sentenced to life in prison.
Arnold appealed, arguing that by admitting M.A.’s out-of-court statements into evidence without an opportunity for cross-examination, the trial court had violated his constitutional right to confront witnesses against him. The 10th District Court of Appeals upheld Arnold’s conviction, holding that M.A.’s out-of-court statements during the CCFA interview were admissible under an exception to the hearsay rule because they were not “testimonial” statements elicited through an interrogation by a police employee or agent, but rather were statements elicited by a social worker for the purpose of determining what additional medical examination and treatment the child might require. Arnold sought Supreme Court review of the case, and the Court agreed to determine whether, in a criminal prosecution, the admission of a child’s out-of-court statements made to an interviewer employed by a child advocacy center violates the defendant’s constitutional right to confront witnesses against him.
Writing for the majority in today’s decision, Justice O’Connor reviewed recent federal and state court decisions holding that hearsay evidence (statements made by a person who is not available for questioning or cross examination at trial) that is “testimonial” in nature cannot be admitted into evidence in a criminal prosecution without violating a defendant’s rights under the Confrontation Clause. Statements are “testimonial” in nature when the questioning that elicited the proffered statements was conducted by law enforcement personnel or an agent of the police, under non-emergency circumstances, and for the primary purpose of gathering information to aid in the prosecution of a suspected crime.
She also cited this court’s decisions in State v. Stahl (2006) and State v. Muttart (2007), holding that statements made by an adult rape victim in an interview with a nurse and by a child victim of sexual abuse in an interview with a social worker prior to receiving medical care were non-testimonial in nature, and thus admissible at trial, because the primary purpose for those interviews was to diagnose and provide proper medical treatment for the victim, not to gather information for a criminal prosecution.
In applying those precedents to Arnold’s case, Justice O’Connor noted that the victim interview conducted by Marshall at CCFA served the dual purposes of eliciting information necessary for proper medical diagnosis and care of M.A., and gathering forensic information necessary to investigate and potentially prosecute suspected criminal conduct. She wrote: “Certainly, some of the statements that M.A. made to Marshall primarily served a forensic or investigative purpose. Those statements include M.A.’s assertion that Arnold shut and locked the bedroom door before raping her; her descriptions of where her mother and brother were while she was in the bedroom with Arnold, of Arnold’s boxer shorts, of him removing them, and of what Arnold’s “pee-pee” looked like; and her statement that Arnold removed her underwear. These statements likely were not necessary for medical diagnosis or treatment. Rather, they related primarily to the state’s investigation. Marshall effectively acted as an agent of the police for the purpose of obtaining these statements. ... The primary purpose of that portion of the interview was not to meet an ongoing emergency but, rather, to further the state’s forensic investigation. Thus, these statements were testimonial in nature and their admission without a prior opportunity for cross-examination is prohibited by the Confrontation Clause.”
Justice O’Connor also observed, however, that other statements by M.A. elicited during her interview with Marshall at CCFA, including those describing the sexual conduct between Arnold and M.A., provided information that was necessary to diagnose and medically treat M.A. She wrote: “In eliciting these medically necessary statements, Marshall acted as an agent of the nurse practitioner who examined M.A., not of the investigating police officers. Because Marshall did not act as an agent of the police in obtaining these statements, they are not inadmissible. ... There is no basis in the law for concluding that Marshall’s dual capacity renders statements made by M.A. for the purpose of medical diagnosis and treatment inadmissible pursuant to the Confrontation Clause. Indeed, in Davis (v. Washington, 2006), the United States Supreme Court acknowledged that the same interview or interrogation might produce both testimonial and nontestimonial statements. As the court statedin Davis, ‘This presents no great problem.’ ‘[T]rial courts will recognize the point at which, for Sixth Amendment purposes, statements in response to interrogations become testimonial. Through in limine procedure, they should redact or exclude the portions of any statement that have become testimonial, as they do, for example, with unduly prejudicial portions of otherwise admissible evidence.’”
“In interviewing M.A. at the CCFA, Marshall occupied dual capacities; she was both a forensic interviewer collecting information for use by the police and a medical interviewer eliciting information necessary for diagnosis and treatment. We hold that 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. Thus, we affirm the judgment of the court of appeals to the extent that that M.A.’s statements to Marshall for the purpose of medical treatment and diagnosis were properly admitted. We further hold that 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. We agree with Arnold that the trial court erred in admitting the forensic statements made by M.A. to Marshall and reverse the court of appeals insofar as it held that these forensic statements were admissible. However, because the court of appeals did not consider whether the admission of M.A.’s forensic statement to Marshall was harmless ... we remand the case to the court of appeals to consider this issue.”
Justice O’Connor’s opinion was joined by Justices Evelyn Lundberg Stratton, Judith Ann Lanzinger and Robert R. Cupp. Justices Paul E. Pfeifer and Terrence O’Donnell entered separate dissenting opinions.
Justice Pfeifer noted that Marshall is not a health care professional, and wrote that while some of the information she obtained during her interview of M.A. at the CCFA may have been medically useful, it was not “necessary” to the child’s treatment because M.A. had already been examined by a doctor the night before and was about to be examined again by a nurse practitioner who was fully trained to diagnose and treat her for any injuries arising from a sexual assault. He wrote: “The circumstances of the interview indicate that its primary purpose was ‘to establish or prove past events potentially relevant to later criminal prosecution.’ Police observed the interview, which the state concedes is a customary practice. A DVD recording of the interview was preserved, a strong indication that the purpose of the interview was to obtain evidence for use by the prosecution. I am unaware of doctors videotaping patient interviews to assist them in medical treatments or of doctors allowing police officers to routinely observe them when they examine their patients. Furthermore, many of the questions asked were investigatory in nature and similar to the questions asked in a direct examination in a judicial proceeding.”
“ ... I conclude that the primary purpose of Marshall's forensic interview was to establish or prove past events potentially relevant to later criminal prosecution. I conclude, therefore, that the statements were testimonial and that their admission violates the Confrontation Clause of the Sixth Amendment to the United States Constitution. I would reverse the decision of the court of appeals.”
In his dissent, Justice O’Donnell wrote: “Today’s majority, however, charts a course different from the Confrontation Clause jurisprudence of the Supreme Court of the United States and adopts its own dual-capacity test in which the interrogation is examined on a question-by-question basis to determine whether the interviewer acted as an agent of law enforcement or as an agent of some other entity when eliciting a particular statement. Applying this test, it finds that testimonial and nontestimonial statements are interspersed throughout Marshall’s interview and that Marshall acted variously as an agent of law enforcement and as a medical examiner. This analysis is contrary to United States Supreme Court jurisprudence, which directs that we should look to the primary purpose of the interrogation, not the secondary or tertiary purpose. Here, Marshall acted as an agent of law enforcement when she interviewed M.A., as she asked questions on behalf of the police in the absence of an ongoing emergency to establish or prove past events relevant to later criminal prosecution. The interview she conducted focused solely on confirming the single instance of sexual abuse that Otto had accused Arnold of committing ... ”
“It is manifest that Marshall’s questions sought to confirm the allegations of sexual abuse and that proving these past events would be relevant at a criminal prosecution, and the totality of the circumstances indicates that the whole interview served primarily an investigative and prosecutorial purpose. ... The fact that the answers to Marshall’s questions may also be used for a nontestimonial purpose does not mean that M.A.’s statements are not testimonial or that the nontestimonial purpose takes precedence. ... In my view, the primary purpose of Marshall’s questioning was to establish what had been done to M.A. and who had done it. Accordingly, M.A.’s statements are testimonial, and their admission at trial without a prior opportunity to cross-examine M.A. violated Arnold’s right to confront the witnesses against him.”
Contacts
David L. Strait, 614.719.8872, for Michael Arnold.
Kimberly Bond, 614.462.3555, for the state and Franklin County prosecutor’s office.
Please note: Opinion summaries are prepared by the Office of Public Information for the general public and news media. Opinion summaries are not prepared for every opinion released by the Court, but only for those cases considered noteworthy or of great public interest. Opinion summaries are not to be considered as official headnotes or syllabi of Court opinions. The full text of this and other Court opinions from 1992 to the present are available online from the Reporter of Decisions. In the Full Text search box, enter the eight-digit case number at the top of this summary and click "Submit."
State v. Arnold, Slip Opinion No. 2010-Ohio-2742.
Franklin App. No. 07AP-789, 2008-Ohio-3471. Judgment of the court of appeals affirmed in part and reversed in part, and cause remanded to the court of appeals.
Lundberg Stratton, O'Connor, Lanzinger, and Cupp, JJ., concur.
Pfeifer and O'Donnell, JJ., dissent.
Brown, C.J., not participating.
Opinion: http://www.supremecourt.ohio.gov/rod/docs/pdf/0/2010/2010-Ohio-2742.pdf
(June 17, 2010) In a decision announced today, the Supreme Court of Ohio held that a child’s statements made to an interviewer at a child advocacy center for purposes of medical diagnosis and treatment are non-testimonial and therefore admissible evidence at trial. The Court held further, however, that statements made to an interviewer at a child advocacy center that serve primarily a forensic or investigatory purpose are testimonial in nature and therefore are inadmissible evidence at trial.
The Court’s 4-2 majority decision, authored by Justice Maureen O’Connor, partially affirmed and partially reversed a decision of the 10th District Court of Appeals, and remanded the case to that court for additional proceedings.
In December 2005, the mother of a 4-year-old Columbus girl identified as M.A. called police to report her suspicion that the child had been sexually assaulted that evening by Michael Arnold. The child was transported to an emergency room where a rape kit examination was performed. She was then sent home overnight. The following morning M.A. was taken to the Center for Child and Family Advocacy (CCFA), a special multidisciplinary unit for victims of child and domestic abuse located at Nationwide Children’s Hospital. Kerri Marshall, a social worker employed by CCFA, conducted an in-depth interview with M.A. outside the presence of her mother during which Marshall asked a number of questions about what had taken place between the child and Arnold. The purpose of Marshall’s interview was to “gather as much information as possible,” while only subjecting the child to one interview. Thus, the interview was viewed live via closed-circuit television by several observers in another room, including a police detective and a nurse practitioner. The entire interview was also recorded on a digital video disk. Following the interview, the nurse practitioner examined M.A. The nurse practitioner testified at trial that the interview guided her examination and enabled her to determine whether to conduct a genital examination and whether to test M.A. for sexually transmitted infection. During the examination, the nurse practitioner found two abrasions on M.A.’s hymen, which she testified were “diagnostic” of sexual abuse.
Based on M.A.’s statements during the CCFA interview and other evidence, Arnold was arrested and charged with two counts of rape of a child under the age of 10. The court determined that M.A. was unavailable to testify and be cross examined in court. Over Arnold’s objections, the trial court allowed the state to show the full video of M.A.’s interview with Marshall at the CCFA to the jury. Arnold was subsequently convicted on one count of child rape and sentenced to life in prison.
Arnold appealed, arguing that by admitting M.A.’s out-of-court statements into evidence without an opportunity for cross-examination, the trial court had violated his constitutional right to confront witnesses against him. The 10th District Court of Appeals upheld Arnold’s conviction, holding that M.A.’s out-of-court statements during the CCFA interview were admissible under an exception to the hearsay rule because they were not “testimonial” statements elicited through an interrogation by a police employee or agent, but rather were statements elicited by a social worker for the purpose of determining what additional medical examination and treatment the child might require. Arnold sought Supreme Court review of the case, and the Court agreed to determine whether, in a criminal prosecution, the admission of a child’s out-of-court statements made to an interviewer employed by a child advocacy center violates the defendant’s constitutional right to confront witnesses against him.
Writing for the majority in today’s decision, Justice O’Connor reviewed recent federal and state court decisions holding that hearsay evidence (statements made by a person who is not available for questioning or cross examination at trial) that is “testimonial” in nature cannot be admitted into evidence in a criminal prosecution without violating a defendant’s rights under the Confrontation Clause. Statements are “testimonial” in nature when the questioning that elicited the proffered statements was conducted by law enforcement personnel or an agent of the police, under non-emergency circumstances, and for the primary purpose of gathering information to aid in the prosecution of a suspected crime.
She also cited this court’s decisions in State v. Stahl (2006) and State v. Muttart (2007), holding that statements made by an adult rape victim in an interview with a nurse and by a child victim of sexual abuse in an interview with a social worker prior to receiving medical care were non-testimonial in nature, and thus admissible at trial, because the primary purpose for those interviews was to diagnose and provide proper medical treatment for the victim, not to gather information for a criminal prosecution.
In applying those precedents to Arnold’s case, Justice O’Connor noted that the victim interview conducted by Marshall at CCFA served the dual purposes of eliciting information necessary for proper medical diagnosis and care of M.A., and gathering forensic information necessary to investigate and potentially prosecute suspected criminal conduct. She wrote: “Certainly, some of the statements that M.A. made to Marshall primarily served a forensic or investigative purpose. Those statements include M.A.’s assertion that Arnold shut and locked the bedroom door before raping her; her descriptions of where her mother and brother were while she was in the bedroom with Arnold, of Arnold’s boxer shorts, of him removing them, and of what Arnold’s “pee-pee” looked like; and her statement that Arnold removed her underwear. These statements likely were not necessary for medical diagnosis or treatment. Rather, they related primarily to the state’s investigation. Marshall effectively acted as an agent of the police for the purpose of obtaining these statements. ... The primary purpose of that portion of the interview was not to meet an ongoing emergency but, rather, to further the state’s forensic investigation. Thus, these statements were testimonial in nature and their admission without a prior opportunity for cross-examination is prohibited by the Confrontation Clause.”
Justice O’Connor also observed, however, that other statements by M.A. elicited during her interview with Marshall at CCFA, including those describing the sexual conduct between Arnold and M.A., provided information that was necessary to diagnose and medically treat M.A. She wrote: “In eliciting these medically necessary statements, Marshall acted as an agent of the nurse practitioner who examined M.A., not of the investigating police officers. Because Marshall did not act as an agent of the police in obtaining these statements, they are not inadmissible. ... There is no basis in the law for concluding that Marshall’s dual capacity renders statements made by M.A. for the purpose of medical diagnosis and treatment inadmissible pursuant to the Confrontation Clause. Indeed, in Davis (v. Washington, 2006), the United States Supreme Court acknowledged that the same interview or interrogation might produce both testimonial and nontestimonial statements. As the court statedin Davis, ‘This presents no great problem.’ ‘[T]rial courts will recognize the point at which, for Sixth Amendment purposes, statements in response to interrogations become testimonial. Through in limine procedure, they should redact or exclude the portions of any statement that have become testimonial, as they do, for example, with unduly prejudicial portions of otherwise admissible evidence.’”
“In interviewing M.A. at the CCFA, Marshall occupied dual capacities; she was both a forensic interviewer collecting information for use by the police and a medical interviewer eliciting information necessary for diagnosis and treatment. We hold that 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. Thus, we affirm the judgment of the court of appeals to the extent that that M.A.’s statements to Marshall for the purpose of medical treatment and diagnosis were properly admitted. We further hold that 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. We agree with Arnold that the trial court erred in admitting the forensic statements made by M.A. to Marshall and reverse the court of appeals insofar as it held that these forensic statements were admissible. However, because the court of appeals did not consider whether the admission of M.A.’s forensic statement to Marshall was harmless ... we remand the case to the court of appeals to consider this issue.”
Justice O’Connor’s opinion was joined by Justices Evelyn Lundberg Stratton, Judith Ann Lanzinger and Robert R. Cupp. Justices Paul E. Pfeifer and Terrence O’Donnell entered separate dissenting opinions.
Justice Pfeifer noted that Marshall is not a health care professional, and wrote that while some of the information she obtained during her interview of M.A. at the CCFA may have been medically useful, it was not “necessary” to the child’s treatment because M.A. had already been examined by a doctor the night before and was about to be examined again by a nurse practitioner who was fully trained to diagnose and treat her for any injuries arising from a sexual assault. He wrote: “The circumstances of the interview indicate that its primary purpose was ‘to establish or prove past events potentially relevant to later criminal prosecution.’ Police observed the interview, which the state concedes is a customary practice. A DVD recording of the interview was preserved, a strong indication that the purpose of the interview was to obtain evidence for use by the prosecution. I am unaware of doctors videotaping patient interviews to assist them in medical treatments or of doctors allowing police officers to routinely observe them when they examine their patients. Furthermore, many of the questions asked were investigatory in nature and similar to the questions asked in a direct examination in a judicial proceeding.”
“ ... I conclude that the primary purpose of Marshall's forensic interview was to establish or prove past events potentially relevant to later criminal prosecution. I conclude, therefore, that the statements were testimonial and that their admission violates the Confrontation Clause of the Sixth Amendment to the United States Constitution. I would reverse the decision of the court of appeals.”
In his dissent, Justice O’Donnell wrote: “Today’s majority, however, charts a course different from the Confrontation Clause jurisprudence of the Supreme Court of the United States and adopts its own dual-capacity test in which the interrogation is examined on a question-by-question basis to determine whether the interviewer acted as an agent of law enforcement or as an agent of some other entity when eliciting a particular statement. Applying this test, it finds that testimonial and nontestimonial statements are interspersed throughout Marshall’s interview and that Marshall acted variously as an agent of law enforcement and as a medical examiner. This analysis is contrary to United States Supreme Court jurisprudence, which directs that we should look to the primary purpose of the interrogation, not the secondary or tertiary purpose. Here, Marshall acted as an agent of law enforcement when she interviewed M.A., as she asked questions on behalf of the police in the absence of an ongoing emergency to establish or prove past events relevant to later criminal prosecution. The interview she conducted focused solely on confirming the single instance of sexual abuse that Otto had accused Arnold of committing ... ”
“It is manifest that Marshall’s questions sought to confirm the allegations of sexual abuse and that proving these past events would be relevant at a criminal prosecution, and the totality of the circumstances indicates that the whole interview served primarily an investigative and prosecutorial purpose. ... The fact that the answers to Marshall’s questions may also be used for a nontestimonial purpose does not mean that M.A.’s statements are not testimonial or that the nontestimonial purpose takes precedence. ... In my view, the primary purpose of Marshall’s questioning was to establish what had been done to M.A. and who had done it. Accordingly, M.A.’s statements are testimonial, and their admission at trial without a prior opportunity to cross-examine M.A. violated Arnold’s right to confront the witnesses against him.”
Contacts
David L. Strait, 614.719.8872, for Michael Arnold.
Kimberly Bond, 614.462.3555, for the state and Franklin County prosecutor’s office.
Please note: Opinion summaries are prepared by the Office of Public Information for the general public and news media. Opinion summaries are not prepared for every opinion released by the Court, but only for those cases considered noteworthy or of great public interest. Opinion summaries are not to be considered as official headnotes or syllabi of Court opinions. The full text of this and other Court opinions from 1992 to the present are available online from the Reporter of Decisions. In the Full Text search box, enter the eight-digit case number at the top of this summary and click "Submit."
Monday, December 11, 2006
Warning: Hearsay Ahead
When an attorney asks questions of a witness such as "are you aware", or "did you learn", often it is to hide the fact that the witness's knowledge is based on hearsay and not on personal knowledge. Evid. R. 602 requires that a witness have "personal knowledge" of a matter before testifying about such matter. The rule reads as follows:
RULE 602. Lack of Personal Knowledge
A witness may not testify to a matter unless evidence is introduced sufficient to support a finding that he has personal knowledge of the matter. Evidence to prove personal knowledge may, but need not, consist of the testimony of the witness himself. This rule is subject to the provisions of Rule 703, relating to opinion testimony by expert witnesses.
"Personal knowledge", as used above, does not include information given to the witness by another, which, if offered for the truth of the matter asserted, is hearsay and subject to the provisions of Evid. R. 801, et seq. In the situation described above, the trial court should be told something like "Objection, lack of personal knowledge".
RULE 602. Lack of Personal Knowledge
A witness may not testify to a matter unless evidence is introduced sufficient to support a finding that he has personal knowledge of the matter. Evidence to prove personal knowledge may, but need not, consist of the testimony of the witness himself. This rule is subject to the provisions of Rule 703, relating to opinion testimony by expert witnesses.
"Personal knowledge", as used above, does not include information given to the witness by another, which, if offered for the truth of the matter asserted, is hearsay and subject to the provisions of Evid. R. 801, et seq. In the situation described above, the trial court should be told something like "Objection, lack of personal knowledge".
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