EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Saturday, August 1, 2009

Now (Un)Available: Court Of Appeals Of Ohio Finds Appellant Failed To Prove Declarant Unavailability In Bank Robbery Appeal

Like its federal counterpartOhio Rule of Evidence 804(B)(3) provides an exception to the rule against hearsay for

A statement that was at the time of its making so far contrary to the declarant's pecuniary or proprietary interest, or so far tended to subject the declarant to civil or criminal liability, or to render invalid a claim by the declarant against another, that a reasonable person in the declarant's position would not have made the statement unless the declarant believed it to be true.

Like its federal counterpart, Ohio's Rule only applies if the declarant is "unavailable" at trial, with one ground for a court finding a declarant being unavailable being that the declarant "is exempted by ruling of the court on the ground of privilege from testifying concerning the subject matter of the declarant's statement." And, as the recent opinion of the Court of Appeals of Ohio in State v. Thornton, 2009 WL 2231791 (Ohio App. 12 Dist. 2009), makes clear, courts strictly construe this ground.

In Thornton, Kevin Thornton was convicted of aggravated robbery and related crimes based upon his alleged robbery of a Cash Express near the Edgecombe Apartments in Milford, Ohio at gunpoint in September, 2007. After Thornton was convicted, he moved for a new trial based on the affidavit of one of his fellow jail inmates, Gary Vanover, who alleged that another inmate, Kris Dawson, told him that he had "used a black revolver to * * * rob[ ] a check cashing business located near the Edgecombe Apartments in Milford, Ohio," sometime in the fall of 2007.

Thornton, however, failed to present any evidence that Dawson would have been unavailable to testify at Thornton's new trial, so the court denied his motion. On appeal, Thornton argued that the trial court erred in finding that he failed to prove that Dawson was unavailable for purposes of Evid.R. 804(B)(3) "because generally a witness who invokes his privilege against self-incrimination is considered unavailable for purposes of that rule, and defense counsel 'could not ethically approach a criminal defendant represented by other counsel to urge him to incriminate himself[.]'"  

The Court of Appeals of Ohio disagreed, concluding that

Thornton failed to demonstrate that Dawson was unavailable to testify about Vanover's claim that Dawson had confessed to the robbery. Thornton's assertions to the contrary are based merely on his speculation that Dawson would assert his privilege against self-incrimination, yet there was no evidence presented to show that he would have invoked that privilege in this cirumstance.

In other words, the proponent of a statement against interest must establish the declarant's actual, and not merely his possible, unavailability.



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