EvidenceProf Blog

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

Saturday, January 9, 2010

F For Effort: Court Of Appeals Of Ohio Finds Opponent's Efforts Can't Be Imputed To Proponent For Rule 804(A)(5) Purposes

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.

As under the Federal Rules of Evidence, however, a prerequisite for the admission of such a statement against interest is a finding of declarant unavailability, with Ohio Rule of Evidence 804(A)(5) providing that a declarant is unavailable if he

is absent from the hearing and the proponent of the declarant's statement has been unable to procure the declarant's attendance (or in the case of a hearsay exception under division (B)(2), (3), or (4) of this rule, the declarant's attendance or testimony) by process or other reasonable means.  

As both the language of the rule and the recent opinion of the Court of Appeals of Ohio, Fourth District, in State v. Hiles, 2009 WL 4827654 (Ohio App. 4 Dist. 2009), make clear, it is the proponent's efforts to procure the declarant's attendance that must be reasonable; the proponent cannot have the opponent's attempts imputed to him.

In Hiles, Michael Hiles

and his cousin, Jeremy Hiles, were the only occupants of a truck which collided with another vehicle. Both [Michael] and his cousin had been drinking heavily. The collision caused severe injuries to the driver of the other vehicle. [Michael], himself, was ejected from the truck and required hospitalization. As a result of the collision, [Michael] was indicted on one count of aggravated vehicular assault and one count of vehicular assault. Though an eyewitness to the accident identified [Michael] as the driver of the truck, at trial, [Michael] claimed that it was Jeremy Hiles who was driving when the collision occurred.

Although Jeremy was not present at trial, Michael attempted to introduce a number of out of court statements allegedly made by Jeremy which, according to Michael, helped establish that it was Jeremy who was driving the truck at the time of the accident. While the trial court found that one of these statements constituted an excited utterance, it found that the others could only qualify as statements against interest, which begged the question of whether Michael had established Jeremy's unavailability.

Michael made several attempts to procure Jeremy's attendance, but the court found that he had failed to establish that his attempts were reasonable because, inter alia, he "never requested a subpoena for Jeremy until the day before trial actually commenced." After Michael was convicted, he appealed, and the Court of Appeals of Ohio affirmed, rejecting Michael's argument that "the State's attempts to contact Jeremy should be imputed to him and, combined with the active steps he did take, these efforts were enough to show that a reasonable, good faith effort was made." (the court didn't detail the State's efforts). The Court of Appeals disagreed, finding that "it is the proponent of the statement, not the opposing party, that must make reasonable efforts to secure the attendance of the declarant when seeking to introduce a statement under Evid.R. 804(B)(3)."



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