EvidenceProf Blog

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

Friday, March 5, 2010

Victim Of Circumstance?: Court Of Appeals Of Ohio Makes Seemingly Strange Hearsay Ruling Regarding Criminal Defendant's Statements

Ohio Rule of Evidence 803(1) provides an exception to the rule against hearsay for

A statement describing or explaining an event or condition made while the declarant was perceiving the event or condition, or immediately thereafter unless circumstances indicate lack of trustworthiness.

And Ohio Rule of Evidence 803(2) provides an exception to the rule against hearsay for 

A statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition.

The recent opinion of the Court of Appeals of Ohio, Eighth District, in State v. Bunch, 2010 WL547402 (Ohio App. 8 Dist. 2010), seems to imply, though, that criminal defendants can never use these exceptions to introduce their own, exculpatory statements. I disagree.

In Bunch, the Court of Appeals of Ohio found that the prosecution established the following facts at trial:

On the evening of September 21, 2008, defendant got into an argument with his step-father, James McIntyre (“victim”), at 3706 Rolliston Avenue in Shaker Heights, Ohio. Victim and his wife had repeatedly told defendant not to come to the house. Defendant was living in the detached garage at the time. As the argument became heated, defendant left the house, went into the garage, broke the cable to the overhead door, and came back into the house through the side entrance. In the meantime, victim grabbed two knives and headed toward the side door. As defendant entered the house, he encountered victim, who had a knife in each hand, and defendant pushed victim down the uncarpeted basement stairs. Victim broke his left wrist and fractured a bone in his face, which required surgery.

The defendant raised a the defense of self-defense at trial, but the trial court precluded him from presenting the testimony of his arresting officer, who allegedly would have testified that the defendant told him that "he was acting in self-defense and that he pushed victim because victim came at him with a knife in each hand." 

Unfortunately, the opinion of the Court of Appeals did not provide any details regarding those statements to allow me to determine whether either of the aforementioned exceptions were applicable. Presumably, this was because the court was so sure that they didn't apply. Why? Well, according to the court,

Ohio case law shows that, often, statements made by victims of crimes may be introduced as present sense impressions or excited utterances if they were made while the victim “was in fear and under the stress of a startling event * * * and were not the product of reflective thought.”...

However, in the instant case, the nature of, and circumstances surrounding, defendant's statements to the police "indicate lack of trustworthiness" and undermine the purpose of the rule against hearsay. We find the case before us similar to State v. Watkins,...in which the Tenth District Court of Appeals held that the "statement of a suspect who has slashed three people with a knife, made several hours after the incident, can hardly be deemed to be a trustworthy statement for the purposes of affording it an exception to the hearsay rule. The admissibility of such a statement would be a clear avoidance of the hearsay rule."

Now, maybe it is implied in this holding that the defendant's statement in Bunch were several hours after the incident, but, again, there court provided no clear timeframe. Instead, it seems clear to me that the court is saying that exculpatory statements by criminal defendants can never qualify as excited utterances. I'm not sure that I agree with such a holding even in a garden variety criminal case, but I certainly disagree with it in a self-defense case. 

In Bunch, the defendant claimed self-defense. His claim was thus that he was the (or at least, a) victim, pushing the "victim" because the "victim" came at him with knives. And it is not like this was a completely meritless claim. As noted, the Court of Appeals recognized that the facts at trial established that the victim had a knife in each hand before the defendant pushed him. This being the case, why should the court have treated the defendant any differently than the alleged victim of a crime who is not a criminal defendant?



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