Monday, May 25, 2009
An out-of-court statement made by a child who is under twelve years of age at the time of trial or hearing describing any sexual act performed by, with, or on the child or describing any act of physical violence directed against the child is not excluded as hearsay under Evid. R. 802 if...[,inter alia,]...the following apply:
(1) The court finds that the totality of the circumstances surrounding the making of the statement provides particularized guarantees of trustworthiness that make the statement at least as reliable as statements admitted pursuant to Evid. R. 803 and 804....
(2) The child's testimony is not reasonably obtainable by the proponent of the statement.
(3) There is independent proof of the sexual act or act of physical violence.
In State v. Said, 644 N.E.2d 337 (Ohio 1994), the Supreme Court of Ohio added a requirement to Ohio Rule of Evidence 807: the requirement that the child declarant be evaluated at a competency hearing to determine whether the child was "competent" at the time that he made the out-of-court statement. In State v. Silverman, 2009 WL 961431 (Ohio 2009), the Court removed this requirement.
During Memorial Day weekend in 2006, appellant Doron Silverman and his family visited his parents and sister Batya Silverman in Indianapolis. After dinner, Batya went back to her apartment with Silverman's four-year-old son, M.S., who stayed the night with her.
Batya and M.S. spent the next day at the apartment complex's swimming pool. After going back to her apartment, Batya decided to bathe M.S. to wash off the chlorine from the pool. Batya, whom M.S. called "Poti," was undressing M.S. when he pulled on his penis, pointed to it, and said to her, "Poti, put your mouth on it."Batya was shocked by this statement because it was the first time M.S. had ever said anything like that to her. She asked her boyfriend, Joe Farber, to come in and hear what M.S. had said. Farber first asked M.S., to no avail, why he said that to Batya. He then questioned M.S. whether he had ever seen that in a movie; M.S. answered no. M.S. also said no when Farber inquired whether he had ever seen his parents do that. Finally, when Farber asked where M.S. learned it, M.S. responded, "Daddy did it. No more talk." With that, Batya and Farber decided not to pressure M.S. any more at that time, and they finished up the bath.Silverman and his wife came over to Batya's that night, but M.S.'s earlier comment was not mentioned. M.S. again stayed the night at Batya's, and the next day Farber and Batya asked M.S. if he remembered what he had told them in the bathroom the previous day. M.S. said that he did, and they asked M.S. again if he had learned it from watching a movie or his parents, to which M.S. replied that daddy had done it. When asked if he did it to his father too, M.S. said yes. Batya explored this line of questioning, and when she asked M.S. if he had kissed his father's penis, he answered, "No, I lick it." M.S. further indicated that Silverman was the only person who did this to him, that it was a secret, and that he did not want to talk any more because he would get in trouble. By the end of the conversation, M.S., who had been coloring, was stabbing the paper with his pen and shaking his clenched fists.
After a police investigation, Silverman was charged with rape and gross sexual imposition. Before trial, however, Silverman's wife set fire to the couple's residence, with M.S. dying in the fire. During trial, witnesses testified concerning M.S.'s aforementioned statements, which the trial court deemed admissible under Ohio Rule of Evidence 807. Silverman was eventually convicted of gross sexual imposition and appealed, claiming, inter alia, that M.S.'s statements were inadmissible under Ohio Rule of Evidence 807 because M.S. was not evaluated at a competency hearing to determine whether he was competent at the time that he made his out-of-court statements.
In addressing Silverman's appeal, the Supreme Court of Ohio noted its prior holding Said that a child declarant must be evaluated at a competency hearing before his out-of-court statements can be admitted under Ohio Rule of Evidence 807. But upon reconsideration, the Court found the dissenting opinion in that case more persuasive. That dissent had
recognized that "[t]he effect of instituting the majority's position * * * will be to preclude the admission of otherwise qualified out-of-court statements into evidence. For example, in those situations where the abused victim falls into a coma or dies at some point after making statements to a parent or therapist concerning the source of his or her abuse, the statements would not be admissible, given the child's inability to attend a competency hearing. That result surely defeats the obvious purpose for which Evid. R. 807 was adopted.”
In Silverman, the Supreme Court of Ohio now agreed with this dissenting opinion and repudiated the majority opinion, concluding:
We now hold that the better approach is to return to the plain text of Evid. R. 807. The rule says absolutely nothing about a child declarant's competence. Despite the fact that the text of the rule lacks this requirement, Said imposed a judicially created rule that contravenes both the language and intent of Evid. R. 807.
--- N.E.2d ----, 2009 WL 961431