October 15, 2007
A matter of (in)competence? Ohio Supreme Court reverses appellate court's hearsay decision
In State v. Muttart, the Supreme Court of Ohio reversed a decision by an Ohio appellate court excluding certain statements made by a child to health care professionals on the ground that the trial court failed to hold a competency hearing to determine whether the child was competent at the time the statement was made. Dennis Muttart had been convicted by the trial court of raping his 5 year-old daughter, and the sole evidence inculpating him were his daughter's statements to health care professionals in which she discussed the alleged rape.
Dennis Muttart then appealed to an Ohio appellate court, claiming that, with the exception of excited utterances, statements offered under exceptions to the rule against hearsay can only be admitted if it is determined that the person making the statement was competent at the time the statement was made. Because Ohio law presumes that a child under age 10 is not competent to testify at trial unless the court has established his/her competence through a hearing, and because no such competency hearing was held, the appellate court found the statements inadmissible and revesed.
The Ohio Supreme Court disagreed, noting that the case relied upon by Muttart and the appellate court, State v. Said, merely found that when a party seeks to introduce statements pursuant to Ohio Rule of Evidence 807 (similar to the federal residual or catch-all exception), a competency hearing must be held. The Court then noted that the evidence at issue was introduced pursuant to the rule holding admissible hearsay statements made for purposes of medical diagnosis or treatment. Compare Federal Rule of Evidence 803(4).
The Court then noted that the drafters of Ohio Rule of Evidence 807 acknowledged that statements admitted pursuant to Rule 807 are less reliable than statements admitted pursuant to Rule 803. The Court then concluded that a competency hearing is not required when statements are admitted pursuant to Rule 803(4) because there are two protections ensuring the reliability of statements made pursuant to 803(4).
The first is the selfish-motive doctrine. In other words, a person seeking medical treatment is unlikely to lie to a medical professional and risk a misdiagnosis or mistreatment. The second is the professional reliance factor. Under this factor, the ability of members of the medical profession to evaluate the accuracy of statements made to them is considered sufficient protection against contrived symptoms.
I'm not quite sure that the Ohio Supreme Court drew a sensical line between Rule 807 and Rule 803(4) when the statement at issue is made by a young child. For instance, while it is clear that an adult would be wary of lying to a medical professional based upon the risk of mistreatment/misdiagnosis, I don't think that it's nearly as clear that a 5 year-old child would understand the dangers of lying to a health care provider. That said, it appears that the Ohio appellate court made the more egregious error by applying an anlalysis performed under Rule 807 to Rule 803 without explaining the difference between the Rules.
October 15, 2007 | Permalink
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The Supreme Court of Ohio has a long and richly earned reputation for rendering flimsy decisions. Muttart is one of its most flimsy and astonishing.
In this case, the court changes the rationale for admitting hearsay. True, it applied its newly imagined rationale to only child-abuse hearsay. The rationale itself, however, shatters the foundations on which the common law – and even the none-too-tradition-minded drafters of the Federal Rules of Evidence – conceived as a workable formula for making certain categorical exceptions to the rule against hearsay.
We Ohioans had long been under the impression that hearsay is admissible in limited instances – other than 803(16) – where circumstances surrounding the utterance justify its admission. Hearsay may be admitted if the circumstances provide some assurance the absent declarant was truthful in uttering the statement. We thought – mistakenly, we now learn – that what matters is whether the circumstances are such as to motivate the declarant to speak truthfully.
Ohio had previously recognized that the extreme youth of many child-abuse victims hinders their ability to speak truthfully. They are often too young to perceive, remember, and communicate accurately and, worse, are vulnerable to suggestion – whether unintentional or intentional. Previous Ohio cases recognized that those concerns render the categorical admissibility of the statements problematic. Thus, the court saw the need to adopt Ohio Evid. R. 807, which establishes a detailed procedure for sorting out reliable from unreliable hearsay statements of child-abuse victims. The primary inquiry is whether circumstances indicate that the child was “particularly likely to be telling the truth.”
Now we learn that's all wrong. For purpose of the admissibility of hearsay, it doesn't matter whether the declarant was motivated to tell the truth. Yes, the Supreme Court of Ohio still recognizes that “falsehoods” are a problem in child-abuse cases and that the cause of falsification is particularly complex. But the fact that falsehood is a uniquely thorny problem isn't reason to render the statements inadmissible in child-abuse cases. The court now tells us that admission of statements of child-abuse victims is perfectly acceptable even though the circumstances surrounding their making suggest common, complex reasons to doubt – not presume – their trustworthiness.
We are told that in Ohio – uniquely in the law of hearsay – it is the astuteness of the listener, not the probable truthfulness of the declarant, that determines the admissibility of the hearsay. The court said that although “physicians and psychotherapists are not infallible when diagnosing abuse, we believe that their education, training, experience, and expertise make them at least as well equipped as judges to detect and consider those possibilities [i.e., various causes of misimpression and deceipt].” State v. Muttart, 2007 Ohio 5267, ¶42 (2007). The astuteness of the person hearing the statement is enough to allow jurors to hear the statement and, in most cases, base a conviction on it.
The court did not state expressly that the trial judge must admit child-abuse victim's statement if the gifted listener believed the statement. Based, however, on the rationale that skilled listeners like “physicians and psychotherapists” are the best suited to judge the truthfulness of out-of-court statements, a trial court's decision whether to admit or exclude the child-abuse hearsay must necessarily turn on whether the listener who has the “education, training, experience, and expertise” accepted the statement as true. After all, a statement by a child-abuse victim that the listener – blessed with the wisdom derived from his or her own personal “education, training, experience, and expertise” – did not believe would not satisfy the theory of reliability that the Ohio Supreme Court invented in Muttart.
It is a cause great relief for us in Ohio, of course, to learn that we have such prescient “physicians and psychotherapists,” professions so gifted that the courts of Ohio abandon the rules the common law developed, reworked, and refined over centuries for assessing statements trustworthy enough to admit in trial. Judicial acceptance of “physicians and psychotherapists” personal assessments of another person's truthfulness is an honor that the courts of Ohio rarely – very rarely, indeed – bestow. Lay witnesses are not allowed to assess another witness' or hearsay declarant's truthfulness. Expert witness can't do it either. Even lie-detector operators can't do it, except when both parties consent.
The decision in Muttrat is among the most flimsy and astonishing decisions in a long line of such decisions from the Supreme Court of Ohio. In my opinion, it is the court's supreme such decision in the law of hearsay, if not on the whole law of evidence. Wait. I take that back. There are some other pretty awful ones.
Posted by: DW | Nov 7, 2007 7:53:54 AM