EvidenceProf Blog

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

Thursday, September 12, 2013

The Oh in Ohio: Marianna Brown Bettman, Legally Speaking Ohio & the Confrontation Clause

Marianna Brown Bettman, a Professor of Practice at the University of Cincinnati College of Law, passed along to me this terrific post from her blog, Legally Speaking Ohio. Here's the introduction to the post:

On September 5, 2013 the Supreme Court of Ohio handed down a merit decision in State v. Ricks, Slip Opinion No. 2013-Ohio-3712 The issue was whether it was proper in this case to admit a non-testifying accomplice’s out-of-court statements through the testimony of an investigating police officer. Although the Court unanimously held the admission of the statements in this case was improper, the Court split 4-3 on the reasons for its ruling. Justice Pfeifer wrote the lead decision for himself and Justices O’Donnell, Kennedy, and O’Neill. Pfeifer’s opinion found the admission of the statements violated the defendant’s confrontation rights under the state and federal constitutions. Justice French wrote the separate concurrence for herself, Chief Justice O’Connor, and Justice Lanzinger. The concurrence would find the statements inadmissible only because they violated Evid. R.403. The case was argued January 23, 2013.  Read the oral argument preview here and the analysis of the oral argument here.

I recommend that readers interested in the nuts and bolts of Confrontation Clause jurisprudence to check out the post to see Professor Bettman's detailed breakdown of exactly how the court handled the defendant's claim. In this post, I wanted to add a further thought about the concurrence.

As note, the concurrence found that the accomplice's statements were inadmissible only because they could not pass the Rule 403 balancing test. Ohio Rule of Evidence 403 states that

Although relevant, evidence is not admissible if its probative value is substantially outweighed by the danger of unfair prejudice, of confusion of the issues, or of misleading the jury.

In other words, the concurrence was saying that even though the accomplice's statements were admissible to prove something other than the truth of the matter asserted, any probative value for proving that purpose was substantially outweighed by the danger that the jury would use the statements to prove the truth of the matter asserted. This is something that I wish more courts would recognize. Too often, a judge will admit a statement upon finding some nonhearsay purpose without grappling with the balance between probative value and prejudicial effect. The Advisory Committee's Note to Federal Rule of Evidence 403, however, clearly states that

In reaching a decision whether to exclude on grounds of unfair prejudice, consideration should be given to the probable effectiveness or lack of effectiveness of a limiting instruction.

Research has consistently shown that jurors are bad at honoring limiting instructions in the hearsay context. Given this, shouldn't statements offered for a nonhearsay purpose routinely be excluded under Rule 403?



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