The opinion
[This opinion has been published in Ohio Official Reports at 89 Ohio St.3d 342.]
THE STATE OF OHIO, APPELLANT AND CROSS-APPELLEE, v. REINER, APPELLEE
AND CROSS-APPELLANT.
[Cite as State v. Reiner, 2000-Ohio-190.]
Evidence—Prohibitions in Evid.R. 606(B) against receiving evidence from a juror
apply to alternate jurors—Evidence received from alternate juror, without
other outside evidence, is insufficient aliunde evidence under Evid.R.
606(B) upon which a court may rely in order to conduct inquiry of other
jurors into validity of a verdict.
1. The prohibitions against receiving evidence from a juror in Evid.R. 606(B)
apply to alternate jurors.
2. Evidence received from an alternate juror, without other outside evidence,
is insufficient aliunde evidence under Evid.R. 606(B) upon which a court
may rely in order to conduct an inquiry of other jurors into the validity of a
verdict.
(Nos. 99-239 and 99-427—Submitted January 11, 2000—Decided July 26, 2000.)
APPEAL and CROSS-APPEAL from and CERTIFIED by the Court of Appeals for
Lucas County, No. L-97-1002.
__________________
{¶ 1} Appellee and cross-appellant, Matthew Reiner, was convicted by a
jury of involuntary manslaughter for the death of his two-month-old infant son,
Alex Reiner. Alex died as a result of “shaken baby syndrome.”
{¶ 2} On June 15, 1995, Deborah S. Reiner gave birth to twin boys named
Alex and Derek. Both boys were premature at birth but otherwise healthy. The
Reiners also had a two-year-old daughter named Amy. Following the birth of the
twins, both parents took time off from work to care for them. Matthew Reiner took
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leave from his job as an engineer from June 15 to July 25, 1995. Deborah Reiner,
a dentist, did not return to work until August 14, 1995.
{¶ 3} The Reiners hired a full-time babysitter, Susan Batt, age twenty-four,
to care for their three children. Susan Batt began working on July 25, 1995, under
Deborah Reiner’s supervision while Susan Batt became acclimated to the family.
During the first week of Susan Batt’s employment, Deborah Reiner spent most of
her time at home. In the final two weeks before Deborah Reiner returned to work,
she left the home on several occasions with Amy, leaving Susan Batt alone with
the twins. Susan Batt became the full-time exclusive childcare provider on August
14, 1995.
{¶ 4} Over a period of two weeks, the following events occurred. Alex
became ill the weekend of August 12, 1995. He appeared to be achy and vomited
several times. Deborah Reiner called the pediatrician and then took Alex to an
outpatient clinic on Sunday, August 13. The clinic doctor diagnosed stomach flu
and recommended that Deborah Reiner give Alex Pedialyte.
{¶ 5} By Wednesday, August 16, 1995, Alex had improved and appeared
to have recovered. The twins’ pediatrician performed a well-care examination of
both boys that day. The results were unremarkable.
{¶ 6} Deborah Reiner stayed home with the children on Wednesday,
August 23, 1995, her regular day off. Alex seemed achy that day but had no fever.
On Thursday, August 24, 1995, Susan Batt telephoned Matthew Reiner at work and
reported that Alex had vomited in the morning. He told her to give Alex some
Pedialyte. On Friday, August 25, Susan Batt telephoned Deborah Reiner at work
to report that Alex had vomited. Deborah Reiner’s mother came over Friday
afternoon to help care for the children. Alex remained ill and vomiting over the
weekend, still with no fever.
{¶ 7} On Monday, August 28, 1995, when Deborah Reiner returned home
after work, Susan Batt reported that Alex had eaten well and taken two five-hour
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naps that day. He appeared achy but did not have a fever, and Susan Batt had given
him Tylenol. Susan Batt left the Reiners that evening between 5:30 and 6:00 p.m.
Later that evening, Deborah Reiner’s parents stopped by to drop off Amy, who had
spent the day with them. They stayed and visited until 7:30 p.m. when Matthew
Reiner arrived home.
{¶ 8} Alex vomited again that evening at 9:00 p.m. The couple put the
twins to bed at approximately 10:30 that night. Later, they heard Alex whimpering.
Matthew Reiner took Alex downstairs. He claimed that he laid Alex on his
(Matthew’s) chest to try to get the baby comfortable and to fall asleep. Within a
half hour, Alex’s breathing became labored and he became unresponsive. Matthew
Reiner took Alex to his bedroom to awaken his wife. She could not get Alex to
respond, so Matthew Reiner called 911.
{¶ 9} When emergency personnel arrived, Alex had no pulse and was not
breathing. His skin was blue. They transported Alex to a nearby hospital, where
he was placed on a respirator. Two days later, on August 30, 1995, Alex was
removed from life support and died.
{¶ 10} Dr. James Patrick, Lucas County Coroner, performed an autopsy.
He concluded that Alex had died from “shaken baby syndrome.” Dr. Patrick
estimated that the time of injury was the evening of Monday, August 28, 1995, most
likely within minutes of the onset of respiratory arrest when Matthew Reiner had
been alone with Alex, but at most, within two to three hours of the onset.
{¶ 11} A grand jury indicted Matthew Reiner for involuntary manslaughter.
The case proceeded to trial. The key issue at trial was the timing of the fatal trauma
to Alex. The defense theory was that Susan Batt, not Matthew Reiner, was the
culpable party. The defense presented evidence that all three Reiner children had
been healthy from birth until the weekend of August 11, 1995, after Susan Batt
became employed. Deborah Reiner testified that her children had no medical
problems from the time of Alex’s death until the trial, after Susan Batt left the
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Reiners’ employ. Deborah Reiner also testified that no other family members had
contracted a stomach virus or suffered symptoms similar to Alex’s during the last
two weeks of August despite their close proximity to Alex, in particular his twin,
Derek, who slept in the same crib. There also was evidence of additional injuries
to Alex and injuries to Derek. A hospital radiologist testified that x-ray films of
Alex taken at the hospital on August 29, 1995, indicated a broken rib and broken
leg. Subsequent x-rays of Derek indicated that he suffered from three broken ribs.
{¶ 12} Dr. Patrick testified on behalf of the prosecution. He explained that,
based upon his findings from the autopsy and the lack of any evidence of a blow to
the head or other significant trauma, Alex had died of shaken baby syndrome. Dr.
Patrick testified that the brain had been injured when it was “subjected to forces
operating in different directions” that caused the blood vessels to tear. He described
these forces as “shearing forces” that rapidly disrupted the electrical circuitry of the
brain and caused loss of consciousness. Dr. Patrick testified that when this occurs,
the brain is profoundly disrupted and no longer capable of responding to stimuli.
Although there was evidence of brain swelling, Dr. Patrick testified that swelling
is merely an indication that there has been an injury.
{¶ 13} After the autopsy, Dr. Patrick prepared slides of brain tissue in order
to examine microscopically the various injuries inside the brain. He testified that
the slides confirmed the presence of blood and the brain injury.
{¶ 14} During cross-examination, defense counsel questioned Dr. Patrick
about the significance of the swelling of the brain, or edema. Dr. Patrick stated that
although edema was present and played a role, the principal problem was the
mechanical disruption to the circuits of the brain. Defense counsel then asked Dr.
Patrick about his testimony to the grand jury in which he attributed Alex’s loss of
consciousness and lack of breathing to swelling of the brain within a confined
space. When confronted with statements taken from his testimony given to the
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grand jury in this case, Dr. Patrick reviewed the page from the grand jury transcript
and admitted that he had made the statements.
{¶ 15} The trial court refused to admit into evidence only one page from the
transcript of Dr. Patrick’s grand jury testimony because one page taken out of
context would not have fairly and accurately represented his grand jury testimony.
Defense counsel, however, would not agree to the admission of the entire statement.
Defendant then moved to strike Dr. Patrick’s opinion as unreliable under Evid.R.
702(C). The court overruled the motion.
{¶ 16} Dr. Elizabeth K. Balraj, the Cuyahoga County Coroner and a
professional acquaintance of Dr. Patrick, also testified on behalf of the prosecution.
She testified that the Lucas County Coroner’s Office sent her information about
this case, including the autopsy report, Alex’s medical records, and photographs
and slides taken at the time of the autopsy. Dr. Balraj also testified that Alex died
as a result of shaken baby syndrome. In response to a lengthy hypothetical question
that asked Dr. Balraj for her opinion “to a reasonable degree of medical certainty”
as to when the injury was inflicted upon Alex in relation to his collapse, Dr. Balraj
responded that “the type of injuries and the information that you have given me is
consistent with the child sustaining the injury sometime between 10:30 p.m. and
11:00 p.m.”
{¶ 17} Susan Batt was subpoenaed by the prosecution and the defense. She
invoked her Fifth Amendment privilege against self-incrimination and refused to
testify. She had also invoked her Fifth Amendment privilege while testifying in the
juvenile court proceeding. The prosecution requested that the court grant Susan Batt
transactional immunity pursuant to R.C. 2945.44 and compel her to testify. The
prosecution told the court that it did not presently intend to prosecute Susan Batt
for this crime. The court granted her transactional immunity.
{¶ 18} Having been granted transactional immunity, Susan Batt
subsequently testified. She explained to the jury that she had refused to answer
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questions without a grant of immunity upon the advice of counsel although she had
done nothing wrong. She testified that she had attended a nanny and governess
school in Cleveland. She previously worked for three years as a live-in nanny for
another family with three children. She learned of the position with the Reiner
family through a newspaper ad. She began working limited hours for the Reiners
on July 25, 1995, while she became acquainted with the children and their routines.
When Deborah Reiner returned to work on August 14, 1995, Susan Batt worked
from 7:30 a.m. to 5:30 p.m. on Mondays, Tuesdays, Thursdays, and Fridays.
{¶ 19} Susan Batt testified that she had never shaken the children while she
was alone with them. She specifically denied shaking Alex on August 28, 1995.
She testified that she did nothing to harm any of the Reiner children. She also
testified that she was not aware that Alex had a broken leg or that Derek had some
broken ribs. She denied that she had anything to do with the broken bones.
{¶ 20} Susan Batt testified that she last worked for the Reiners on Tuesday,
August 29, 1995, the day after Alex had been taken to the hospital. She learned of
Alex’s death through the news. She had no further contact with Reiners.
{¶ 21} On September 23, 1996, a jury convicted Matthew Reiner of
involuntary manslaughter. Two weeks later, the defense filed a motion for acquittal
or, in the alternative, for a new trial. The defense claimed that the verdict was not
supported by the evidence. The defense also alleged legal errors and procedural
irregularities with regard to the grant of immunity to Susan Batt, jury instructions
related to Batt’s testimony and her implied admission of guilt, and the court’s
refusal to permit defense counsel to ask Susan Batt about other injuries to the Reiner
children.
{¶ 22} The defense motion alleged prosecutorial misconduct in failing to
disclose that Dr. Patrick was allegedly changing his testimony or theory of the case.
The defense also claimed that the trial court should have admitted Dr. Patrick’s
grand jury testimony as a prior inconsistent statement, and that the court should
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have stricken as unreliable the opinions of the coroners who testified for the
prosecution. Finally, the defense alleged juror misconduct and attached the
affidavit of Rolf R. Sandberg, an alternate juror. In his affidavit, Rolf Sandberg
admitted that during the trial, he had discussions with several other jurors about the
case, including assessments and characterizations of the evidence, the credibility of
witnesses, and his opinion about the guilt or innocence of the defendant.
{¶ 23} The trial court conducted an in camera inspection of Rolf Sandberg
on October 31, 1996. The court then subpoenaed each juror to appear and testify
about the alleged misconduct. Thereafter, the trial court denied the motion for new
trial. The court determined that Rolf Sandberg’s affidavit did not constitute
competent non-juror evidence under Evid.R. 606(B), because he was an alternate
juror. Furthermore, even assuming that Rolf Sandberg’s affidavit was competent
evidence, the court concluded that he was not a credible witness. The court said it
should not have conducted the hearing and specifically was not considering any
statement by the jurors. The court found no prejudice to the defendant as a result
of any jury conduct, and even if misconduct occurred that was presumed to be
prejudicial, the state had rebutted the presumed prejudice beyond a reasonable
doubt.
{¶ 24} Matthew Reiner appealed his conviction to the Lucas County Court
of Appeals. The appellate court reversed the trial court solely on the issue of juror
misconduct. The appellate court considered Rolf Sandberg’s affidavit as outside
evidence of extraneous prejudicial information that had been improperly brought
to the jury’s attention. The appellate court concluded that there had been juror
misconduct that was prejudicial to the defendant. The appellate court also
considered as misconduct the failure of the other jurors to abide by the trial court’s
instruction not to discuss the case with anyone including each other until
deliberations began. The court considered this fact to be evidence that Rolf
Sandberg’s conduct tainted the jury panel.
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{¶ 25} The appellate court affirmed the trial court’s grant of transactional
immunity to Susan Batt. The court held that, at the time immunity was granted, it
did not appear to Susan Batt that she lacked culpability because she knew the
defense was going to try to blame her for Alex’s death. When it granted her
immunity, the trial court did not know if the defense had any evidence that would
implicate Susan Batt. Therefore, at the time, the trial court would not have known
that Susan Batt’s assertion of her Fifth Amendment right against self-incrimination
was a mistake.
{¶ 26} The appellate court also affirmed the trial court’s refusal to strike Dr.
Patrick’s testimony as to the cause of Alex’s death. The court reasoned that the
defense’s objection that Dr. Patrick did not have the appropriate tissue slides to
support his conclusion about the cause of death went to the weight of the evidence
rather than to its admissibility. The appellate court also upheld the trial court’s
decision not to admit Dr. Patrick’s grand jury testimony as a prior inconsistent
statement. The appellate court concluded that Dr. Patrick admitted he had made
the alleged inconsistent statements to the grand jury; thus, the trial court did not
have to admit the prior testimony.
{¶ 27} As to the legal sufficiency of the opinion given by Dr. Balraj
concerning the timing of Alex’s collapse, the appellate court concluded that Dr.
Balraj’s use of the word “consistent” instead of “probable,” when giving her
opinion as to the timing of the injury, was not a fatal error. In addition, the court
determined that Dr. Balraj’s testimony was cumulative. The appellate court also
found that the trial court did not abuse its discretion in refusing to instruct the jury
on implied admission of guilt.
{¶ 28} Thereafter, the court of appeals determined that its judgment that
Evid.R. 606(B) bars any inquiry of a juror as to the effect of extraneous information
or improper outside influence upon his or her decision-making process was in
conflict with State v. Thomas (July 26, 1995), Athens App. No. 94CA1608,
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unreported, 1995 WL 468183. The appellate court entered an order certifying a
conflict.
{¶ 29} The state appealed and the defendant filed a cross-appeal.
{¶ 30} This cause is now before this court upon our determination that a
conflict exists (case No. 99-427), and pursuant to the allowance of a discretionary
appeal and cross-appeal (case No. 99-239).
__________________
Julia R. Bates, Lucas County Prosecuting Attorney, John J. Weglian and J.
Christopher Anderson, Assistant Prosecuting Attorneys, for appellant and cross-
appellee.
Fritz Byers, Robert Z. Kaplan and Samuel Z. Kaplan; Cooper, Walinski &
Cramer and Richard S. Walinski, for appellee and cross-appellant.
__________________
LUNDBERG STRATTON, J.
{¶ 31} The Lucas County Court of Appeals stated the certified conflict as
“whether Evid.R. 606(B) permits, under any circumstances, inquiry of a juror as to
the effect of extraneous information or improper outside influence upon his or her
decision making process.” The dissenting judge framed the same issue as follows:
“[I]n a case of jury misconduct (statements, conversations or remarks made to a
juror), once evidence aliunde of jury misconduct is provided, whether a court may
inquire of a juror as to whether or not the juror remained uninfluenced by the
misconduct (i.e., impartial) so that the defendant was not denied his substantial
rights.” Because this latter statement more succinctly states the issue, we shall
consider the certified conflict in the terms articulated by the dissenting judge.
{¶ 32} The state’s discretionary appeal involves the related issues of burden
of proof when there are allegations of juror misconduct in a criminal case, and
whether an affidavit from an alternate juror constitutes outside evidence sufficient
to trigger the application of Evid.R. 606(B), otherwise known as the aliunde rule.
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{¶ 33} The defendant’s cross-appeal challenges the validity of the
transactional immunity granted to Susan Batt, the reliability of the opinions
rendered by the state’s medical witnesses, the trial court’s failure to admit Dr.
Patrick’s grand jury testimony for impeachment purposes, and Dr. Balraj’s
expression of her medical opinion on causation.
{¶ 34} For the reasons more fully set forth below, we reverse the judgment
of the court of appeals as to juror misconduct and the grant of transactional
immunity to Susan Batt, and we affirm the remainder of the court’s judgment.
JUROR MISCONDUCT
{¶ 35} Because the certified conflict presumes the existence of aliunde
evidence, before we may address this issue, we must decide the threshold question
of whether Evid.R. 606(B), also known as the aliunde rule, applies to alternate
jurors. For the reasons more fully set forth below, we hold that the prohibitions
against receiving evidence from a juror in Evid.R. 606(B) apply to alternate jurors.
Therefore, evidence received from an alternate juror, without other outside
evidence, is insufficient aliunde evidence under Evid.R. 606(B) upon which a court
may rely in order to conduct an inquiry of other jurors into the validity of a verdict.
{¶ 36} It is a longstanding rule that “the verdict of a jury may not be
impeached by the evidence of a member of the jury unless foundation for the
introduction of such evidence is first laid by competent evidence aliunde, i.e., by
evidence from some other source.” State v. Adams (1943), 141 Ohio St. 423, 427,
25 O.O. 570, 572, 48 N.E.2d 861, 863. Ohio has adopted this rule in Evid.R.
606(B), which states:
“Upon an inquiry into the validity of a verdict or indictment, a juror may
not testify as to any matter or statement occurring during the course of the jury’s
deliberations or to the effect of anything upon his or any other juror’s mind or
emotions as influencing him to assent to or dissent from the verdict or indictment
or concerning his mental processes in connection therewith. A juror may testify on
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the question whether extraneous prejudicial information was improperly brought to
the jury’s attention or whether any outside influence was improperly brought to
bear on any juror, only after some outside evidence of that act or event has been
presented. However a juror may testify without the presentation of any outside
evidence concerning any threat, any bribe, any attempted threat or bribe, or any
improprieties of any officer of the court. His affidavit or evidence of any statement
by him concerning a matter about which he would be precluded from testifying will
not be received for these purposes.” (Emphasis added.)
{¶ 37} The rule is intended to preserve the integrity of the jury process and
the privacy of deliberations, to protect the finality of the verdict, and to insulate
jurors from harassment by dissatisfied or defeated parties by prohibiting a court
from questioning a juror about what occurred during deliberations, or about
anything else that may have affected the juror’s mind or emotions in the
deliberations process once a final verdict is rendered. State v. Schiebel (1990), 55
Ohio St.3d 71, 75, 564 N.E.2d 54, 61; State v. Adams, 141 Ohio St. at 427, 25 O.O.
at 572, 48 N.E.2d at 863. However, if there is a foundation of outside evidence of
extraneous prejudicial information, or of any threat, bribe, or improper conduct by
an officer of the court, the rule permits a court to ask a juror about that outside
evidence.
{¶ 38} The trial court determined that Rolf Sandberg’s affidavit was not
competent evidence to attack the jury’s verdict under Evid.R. 606(B). The court
reasoned that the intent of Evid.R. 606(B), to prevent an attack by a disgruntled
juror, should likewise apply to an alternate juror.
{¶ 39} The court of appeals reversed on the basis of State v. Rudge (1993),
89 Ohio App.3d 429, 624 N.E.2d 1069. The Rudge court considered an alternate
juror to be outside the regular jury panel because an alternate does not participate
in deliberations or in reaching the final verdict. Id., 89 Ohio App.3d at 437, 624
N.E.2d at 1074. In Rudge, after the trial was over, an alternate juror informed the
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bailiff that on two occasions he had overheard other jurors make statements about
the defendant prior to opening statements and during the trial. The trial court
conducted an in camera examination of the alternate juror, followed by an
examination of the remaining jurors. The court granted a mistrial on the basis that
one of the statements was prejudicial. The court of appeals noted that, as a
nondeliberating juror, an alternate may not be viewed as a member of the jury, so
that the alternate’s testimony may constitute aliunde evidence for purposes of
Evid.R. 606(B). However, the Rudge court concluded that Evid.R. 606(B) was not
applicable, because the trial court’s inquiry did not threaten or reveal discussion
during deliberations. The Rudge court considered it proper to inquire into the
partiality of jurors to determine if the defendant had received a fair trial before an
impartial jury, but not to inquire into deliberations. Id., 89 Ohio App.3d at 439,
624 N.E.2d at 1076. Based upon Rudge, the court of appeals held that Rolf
Sandberg’s affidavit was sufficient outside evidence for the court to have inquired
of the jurors about the alleged misconduct that occurred during the trial.
{¶ 40} It is apparent from the language of Evid.R. 606(B) that the rule
becomes applicable only when the validity of a verdict is questioned. Although
Evid.R. 606(B) protects the deliberations process, the language of the rule does not
limit its application to the examination of improper conduct or communications
only during deliberations. The rule also prohibits inquiry into “the effect of
anything upon his or any other juror’s mind or emotions as influencing him to
assent to or dissent from the verdict * * * or concerning his mental processes in
connection therewith.” This may involve inquiry into improper conduct that
occurred throughout the trial, during the presentation of evidence, or among jurors
during the course of the trial that may influence a juror’s mind, emotions, or mental
processes during deliberations. Events that occur during the trial may also have an
effect upon the jurors’ deliberations.
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{¶ 41} Alternate jurors are selected at the same time and in the same manner
as the entire jury panel. An alternate juror participates as a regular member of the
jury panel and is subject to the same jury admonitions and rules until discharged.
The alternate juror sees and hears the entire trial and is prepared to deliberate. An
alternate juror may become a member of the deliberating panel. State v. Hutton
(1990), 53 Ohio St.3d 36, 45, 559 N.E.2d 432, 443.
{¶ 42} Here, Rolf Sandberg was an alternate juror who claimed that he
violated jury rules during the trial. However, he waited until after the verdict before
notifying defense counsel about his conduct in an effort to challenge the finality of
the verdict. When questioned by the trial judge, Rolf Sandberg admitted that he
was frustrated that he had not been able to deliberate and that he was upset with the
guilty verdict. Although the defense claimed that Rolf Sandberg’s misconduct
affected the deliberations process and tainted the verdict, the defendant presented
no outside evidence of the improper conduct. This is precisely the situation that
the aliunde rule was intended to prevent—a disgruntled juror attacking the verdict.
{¶ 43} Had the trial judge been notified of this conduct during the trial, the
judge would have had an opportunity to inquire of the jurors about any misconduct
or violation of the jury rules because the aliunde rule was not yet applicable. See
State v. Taylor (1991), 73 Ohio App.3d 827, 598 N.E.2d 818. Although Rolf
Sandberg did not deliberate, he was privy to the jury process up to the actual
deliberations. His alleged misconduct during the trial had nothing to do with his
status as an alternate juror and could just as likely have been committed by a regular
juror. The defense sought to attack the final verdict based upon Rolf Sandberg’s
conduct during the trial prior to his discharge. Therefore, for purposes of the
aliunde rule, one’s status as an alternate juror should not preclude application of
the rule. Therefore, we disapprove of the decision in State v. Rudge to the extent
that it holds otherwise.
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{¶ 44} When the defendant moved for acquittal or, in the alternative, a new
trial, based solely on the alleged juror misconduct in Rolf Sandberg’s affidavit, the
trial court properly concluded that it was prohibited by Evid.R. 606(B) from
considering Rolf Sandberg’s affidavit or testimony for purposes of attacking the
jury verdict. The court correctly disregarded the testimony of other jurors.
Consequently, we reverse the judgment of the court of appeals and reinstate the
judgment of the trial court with respect to the issue of juror misconduct.
{¶ 45} Having determined that the affidavit from the alternate juror was not
competent evidence aliunde to challenge the jury’s verdict, our resolution of this
case effectively removes any conflict that may have existed with State v. Thomas,
supra, because that case involved a juror’s contact with a non-juror.
IMMUNITY FROM PROSECUTION
{¶ 46} Defendant’s cross-appeal challenges the validity of the trial court’s
grant of immunity to Susan Batt. The defendant alleges that the grant of
transactional immunity pursuant to R.C. 2945.44 was unlawful because Susan Batt
did not have a valid Fifth Amendment privilege against self-incrimination upon
which to base the immunity. Defendant claims that, as a consequence, his rights
were prejudiced. We agree.
{¶ 47} The Fifth Amendment declares that “[n]o person * * * shall be
compelled in any criminal case to be a witness against himself * * * .” This right,
or privilege, ensures that a person is not compelled to produce evidence that may
tend to incriminate him. The privilege, however, is not unlimited. A person may
decline to answer specific questions “only when the danger of incrimination is real
and appreciable, rather than imaginary and insubstantial,” or when the answer could
reasonably “[furnish] a link in the chain of evidence” against him. State v. Jenkins
(1984), 15 Ohio St.3d 164, 228, 15 OBR 311, 366, 473 N.E.2d 264, 318. See
United States v. Apfelbaum (1980), 445 U.S. 115, 100 S.Ct. 948, 63 L.Ed.2d 250;
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Hoffman v. United States (1951), 341 U.S. 479, 486, 71 S.Ct. 814, 818, 95 L.Ed.
1118, 1124.
{¶ 48} When a witness asserts a privilege against self-incrimination, a court
may not rely upon the witness’s claim alone. State v. Landrum (1990), 53 Ohio
St.3d 107, 120, 559 N.E.2d 710, 726. The court has a duty to determine if the
witness’s refusal to answer is justified. Id. If the court determines that a witness is
mistaken about the danger of incrimination, then the court must require the witness
to answer the question. Hoffman v. United States, 341 U.S. at 486, 71 S.Ct. at 818,
95 L.Ed. at 1124.
{¶ 49} However, when the court is satisfied that the witness’s refusal to
answer is justified, a court may either excuse the witness from testifying or, upon
the written request of the prosecuting attorney, may compel the witness to answer
by granting that person immunity from prosecution for any criminal act about
which the person may testify. R.C. 2945.44; State v. Kirk (1995), 72 Ohio St.3d
564, 651 N.E.2d 981; State ex rel. Leis v. Outcalt (1982), 1 Ohio St.3d 147, 1 OBR
181, 438 N.E.2d 443.
{¶ 50} In this case, the trial court relied upon R.C. 2945.44. It states:
“(A) In any criminal proceeding in this state * * *, if a witness refuses to
answer or produce information on the basis of his privilege against self-
incrimination, the court of common pleas of the county in which the proceeding is
being held, unless it finds that to do so would not further the administration of
justice, shall compel the witness to answer or produce the information, if both of
the following apply:
“(1) The prosecuting attorney of the county in which the proceedings are
being held makes a written request to the court of common pleas to order the
witness to answer or produce the information, notwithstanding his claim of
privilege;
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“(2) The court of common pleas informs the witness that by answering, or
producing the information he will receive immunity under division (B) of this
section.
“(B) If, but for this section, the witness would have been privileged to
withhold an answer or any information given in any criminal proceeding, and he
complies with an order under division (A) of this section compelling him to give
an answer or produce any information, he shall not be prosecuted or subjected to
any criminal penalty in the courts of this state for or on account of any transaction
or matter concerning which, in compliance with the order, he gave an answer or
produced any information.”
{¶ 51} Transactional immunity is a prosecutorial tool to enable the
government to obtain necessary testimony. Leis, 1 Ohio St.3d at 149, 1 OBR at
183, 438 N.E.2d at 446. The practical effect of a grant of immunity is that a witness
is compelled to give information that the witness would otherwise be privileged to
withhold in order to assist the prosecution. Often the witness who is compelled to
testify is a co-defendant or is facing other charges related to the defendant’s
charges. The prosecution is willing to forgo possible prosecution of the witness by
granting the witness immunity in exchange for useful testimony that will assist in
convicting the defendant.
{¶ 52} There is no need for a grant of immunity where the witness denies
all culpability. In situations where an admission of guilt by one person would
completely exonerate any possible guilt of another person, as is the case here, a
grant of immunity is unnecessary and improper. An assertion of the Fifth
Amendment privilege by Susan Batt would lead one to believe that she possessed
self-incriminating knowledge regarding her own culpability. Had Susan Batt been
granted immunity and testified that she had shaken Alex and caused his death, the
prosecution would have no further grounds to prosecute Matthew Reiner. To grant
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immunity in such a situation may have allowed the guilty party to go free and would
not “further the administration of justice.”
{¶ 53} Susan Batt’s counsel informed the court in advance of her testifying
that she intended to assert her Fifth Amendment privilege and would refuse to
answer questions. All counsel present knew that she had likewise asserted this
privilege in a related juvenile court proceeding and did not answer any questions.
Susan Batt’s counsel explained that, although Susan Batt was not the focus of a
criminal investigation, she had been with the victim within the potential time frame
of the fatal trauma, she was the focus of the defense, and she did not know the
identity of defense witnesses who may be called to inculpate her. Susan Batt would
testify only if granted “complete and absolute immunity.”
{¶ 54} The prosecution initially seemed perplexed as to why Susan Batt
would refuse to testify. The prosecution said that Susan Batt had told the Children’s
Services Board that she had nothing to do with the victim’s injuries, and her counsel
had not indicated that her testimony would incriminate her. The prosecution
informed the court that it had no intention of prosecuting Susan Batt. She was not
being investigated and there was insufficient evidence to take to the grand jury. The
prosecution even told the court, “I don’t know how in the interest of justice I can
request immunity for this witness because it doesn’t seem to me that she in any way
has anything to assert the Fifth Amendment privilege to protect herself, or I’m
unaware of anything.” However, when it became apparent that Susan Batt did not
intend to testify, the prosecution reluctantly agreed to consider a request that the
court grant Susan Batt transactional immunity, rather than request that the court use
its contempt powers to force a reluctant witness to testify.
{¶ 55} When Susan Batt took the witness stand at trial and invoked her Fifth
Amendment privilege, the prosecution submitted a written request asking the court
to grant her immunity pursuant to R.C. 2945.44. The court conducted a hearing on
whether the grant of immunity would “further the administration of justice.” R.C.
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2945.44. However, the court did not address the prosecution’s earlier concerns that
Susan Batt had no apparent reason, other than her fear of Matthew Reiner’s defense,
to assert the Fifth Amendment privilege. Nevertheless, the court decided that it
would be in the “interests of justice” to compel Susan Batt to testify. The court
granted her transactional immunity.
{¶ 56} Based on the prosecutors’ statements alone, the trial judge had a duty
to question Susan Batt’s assertion of the privilege and whether her testimony would,
as she claimed, be self-incriminating. State v. Landrum, supra. Instead, the trial
judge merely relied upon Susan Batt’s claim of privilege and disregarded the
questions and concerns expressed by prosecutors. Susan Batt’s testimony did not
incriminate her, because she denied any involvement in the abuse. Thus, she did
not have a valid Fifth Amendment privilege.
{¶ 57} A court may resort to R.C. 2945.44 only after reaching the threshold
determination that the witness’s testimony would be self-incriminating. This is
apparent from the language of subsection (B) of the statute, which states that “[i]f,
but for this section, the witness would have been privileged to withhold an answer
or any information given in any criminal proceeding * * *.” (Emphasis added.)
We agree with the defendant that before a court may exercise its authority to grant
a person transactional immunity, it is implicit that the person has validly asserted
the privilege against self-incrimination. Once the issue of immunity under R.C.
2945.44 arises, it is inherent that the court has already determined that the witness
has a valid privilege against self-incrimination in order to invoke immunity. Here
the trial court failed to make that determination.
{¶ 58} The court of appeals below likewise recognized this threshold
determination when it stated that “the language of R.C. 2945.44 implies that a trial
court make some determination of the validity of the privilege against self-
incrimination antecedent to a grant of statutory immunity.” Nevertheless, the
appellate court focused on circumstances that would have led the trial court to
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believe that Susan Batt was not mistaken in asserting her Fifth Amendment right
against self-incrimination, i.e., she knew that the defense blamed her for the baby’s
death and she did not know what evidence, if any, the defense may have had that
would implicate her in the fatal trauma. Again, these are merely Susan Batt’s
assertions. A defense theory is not a ground for a grant of immunity when the
witness continues to deny any self-incriminating conduct. The appellate court did
not consider the prosecutors’ statements or the fact that Susan Batt had denied any
involvement in the abuse to Alex when questioned by Children’s Services Board.
These are factors that could and should have been considered by the trial court in
determining whether Susan Batt’s fear of self-incrimination was real or imaginary.
{¶ 59} In addition, the wrongful grant of immunity resulted in serious
prejudice to the defendant. The essence of Matthew Reiner’s defense was that
Susan Batt was responsible for Alex’s death. When the court granted her immunity,
the court in effect was telling the jury that Susan Batt did not cause Alex’s injuries.
To “further the administration of justice,” the jury should have been able to hear
and evaluate all the evidence to decide whether someone other than Matthew Reiner
was responsible for Alex’s death. A grant of immunity to Susan Batt under these
circumstances seriously affected the fairness of the trial and resulted in prejudice
to the defendant.
{¶ 60} The state argues that a defendant lacks standing to challenge a grant
of immunity. State v. Bika (Oct. 19, 1978), Marion App. No. 9-78-6, unreported;
State v. Steverson (Sept. 15, 1998), Franklin App. No. 97APA11-1466, unreported,
1998 WL 634949. This argument assumes that the grant of immunity met the
statutory threshold of a valid privilege against self-incrimination. Because Susan
Batt lacked a valid Fifth Amendment privilege against self-incrimination and the
grant of immunity was unlawful, the state’s standing argument lacks merit.
{¶ 61} The state also contends that the defendant failed to preserve any error
for appeal by failing to object to the grant of immunity. We do not agree. Defense
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counsel sufficiently objected to the grant of immunity when the court conducted a
hearing on whether the grant of immunity would further the administration of
justice.
{¶ 62} Therefore, we find that a court has no judicial discretion to grant or
deny immunity until and unless the statutory requirements for immunity are met.
This includes a valid assertion of one’s Fifth Amendment privilege. Leis, 1 Ohio
St.3d at 149, 1 OBR at 183, 438 N.E.2d at 446. Because Susan Batt did not have a
valid Fifth Amendment privilege, the trial court’s grant of immunity was erroneous
and unlawful.
EVIDENTIARY ISSUES
{¶ 63} The defense contends that Dr. Patrick’s theory of the cause of death
was not based upon objectively verifiable facts as required by Evid.R. 702(C)(1).
Therefore, it was not reliable evidence and Dr. Patrick’s testimony should have
been stricken. The defense relies upon the testimony of its expert witnesses who
opined that the tissue slides taken by Dr. Patrick did not show the damage about
which he testified.
{¶ 64} A decision to admit the testimony of an expert, once qualified, is
generally within the broad discretion of the trial court and will not be disturbed
absent a showing of an abuse of discretion. See State v. Williams (1996), 74 Ohio
St.3d 569, 576, 660 N.E.2d 724, 732; State v. Mack (1995), 73 Ohio St.3d 502,
511, 653 N.E.2d 329, 337. An abuse of discretion requires more than an error of
law or judgment; it implies that the court’s attitude is unreasonable, arbitrary, or
unconscionable. State v. Clark (1994), 71 Ohio St.3d 466, 470, 644 N.E.2d 331,
335; State v. Moreland (1990), 50 Ohio St.3d 58, 61, 552 N.E.2d 894, 898; State
v. Adams (1980), 62 Ohio St.2d 151, 157, 16 O.O.3d 169, 173, 404 N.E.2d 144,
149.
{¶ 65} Here, the appellate court concluded that defense challenges to the
reliability of the brain tissue slides concerned the weight of the evidence, not its
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admissibility. We agree. This decision was within the broad discretion of the trial
court and the court did not abuse its discretion with respect to the reliability of
expert evidence within the confines of Evid.R. 702(C).
{¶ 66} The defense also contends that Dr. Balraj failed to express her
opinion as to the cause of death in terms of probability. When asked her opinion
“to a reasonable degree of medical certainty as to when the injury was inflicted in
relationship to the collapse,” Dr. Balraj stated that “the type of injuries * * * [are]
consistent with the child sustaining the injury between 10:30 p.m. and 11:00 p.m.”
The appellate court determined that the use of the word “consistent” was not fatal
to Dr. Balraj’s overall testimony because she was answering a hypothetical question
predicated upon the appropriate standard of medical certainty. In addition, her
testimony was cumulative. Looking at the overall context of her testimony, we
agree that the trial court did not abuse its discretion when it refused to strike the
testimony of Dr. Balraj for failure to include the word “probable” in her opinion.
{¶ 67} The defense claims that the trial court should have admitted the
grand jury testimony of Dr. Patrick as a prior inconsistent statement under Evid.R.
613(B). The defense contended that the opinion offered by Dr. Patrick before the
grand jury as to the cause of death was different from the opinion that he rendered
at trial. The trial court permitted the defense to cross-examine Dr. Patrick about a
particular statement he had made to the grand jury. Dr. Patrick initially disagreed
with statement but, after reviewing his grand jury transcript, he subsequently said
that he recalled making the statement, although he attempted to qualify his answer
and put it into context with the remainder of his grand jury testimony. The
statement alone could appear to be inconsistent.
{¶ 68} The defense moved to introduce into evidence the one page from the
transcript of Dr. Patrick’s grand jury testimony that contained the alleged
inconsistent statement. The court said it would admit the entire transcript from the
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grand jury in order to put the alleged inconsistency into context; however, the
defense would not agree. Therefore, the court excluded the one-page exhibit.
{¶ 69} Evid.R. 613(B)(1) states, in part, that extrinsic evidence of a prior
inconsistent statement is admissible “[i]f the statement is offered solely for the
purpose of impeaching the witness, the witness is afforded a prior opportunity to
explain or deny the statement and the opposite party is afforded an opportunity to
interrogate the witness on the statement or the interests of justice otherwise
require.”
{¶ 70} Although the defense fulfilled the requirements of Evid.R. 613(B) ,
we agree with the reasoning of the trial court that it would have been improper to
admit only one page of Dr. Patrick’s grand jury testimony because it would not
fairly and accurately represent his testimony to the grand jury. The trial court acted
within its discretion to exclude the exhibit when defense counsel would not agree
to admission of the entire transcript. Evid.R. 106.
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CONCLUSION
{¶ 71} For the foregoing reasons, we reverse the judgment of the court of
appeals with respect to the juror misconduct and the grant of immunity to Susan
Batt, and we affirm the remainder of the court’s judgment. This cause is remanded
to the trial court for a new trial consistent with this opinion.
Judgment affirmed in part,
reversed in part
and cause remanded.
WOLFF, F.E. SWEENEY and PFEIFER, JJ., concur.
DOUGLAS, J., concurs separately.
MOYER, C.J., dissents.
COOK, J., concurs in part and dissents in part.
WILLIAM H. WOLFF, JR., J., of the Second Appellate District, sitting for
RESNICK, J.
__________________
DOUGLAS, J., concurring.
{¶ 72} I concur with the ultimate judgment of the majority in remanding
this cause to the trial court for a new trial. I write separately to specifically concur
in the majority’s opinion with regard to the immunity issue and the discussion of
the issue found in the “Immunity From Prosecution” section of the opinion. I also
write because I agree, with regard to the juror misconduct issue, with the analysis
found in Chief Justice Moyer’s dissenting opinion.
__________________
MOYER, C.J., dissenting.
{¶ 73} I concur in the decision of the majority with respect to the grant of
immunity to Susan Batt, and the evidentiary issues presented by the defense.
However, I respectfully dissent from the decision of the majority holding that
evidence received from an alternate juror who did not participate in deliberations is
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insufficient aliunde evidence under Evid. R. 606(B) to inquire into the validity of
the verdict. While I recognize that allowing a party to question a jury verdict based
on evidence presented by an alternate juror may have some detrimental
consequences, I believe that the integrity of the jury process would be better
preserved by allowing such inquiries.
{¶ 74} Evid.R. 606(B) provides:
“Upon an inquiry into the validity of a verdict or indictment, a juror may
not testify as to any matter or statement occurring during the course of the jury’s
deliberations or to the effect of anything upon his or any other juror’s mind or
emotions as influencing him to assent to or dissent from the verdict or indictment
or concerning his mental processes in connection therewith. A juror may testify
* * * only after some outside evidence of that act or event has been presented.”
(Emphasis added.)
{¶ 75} The majority correctly observes that Evid.R. 606(B) is intended to
preserve the integrity of the jury process and the privacy of deliberations.
Significantly, the rule prohibits testimony about events and statements occurring
during the course of deliberations, absent some outside evidence of such
occurrences. The rule does go further to prohibit inquiry into “the effect of anything
upon his or any other juror’s mind or emotions as influencing him to assent to or
dissent from the verdict * * * or concerning his mental processes in connection
therewith.” The majority relies on this additional language to conclude that
testimony of an alternate juror is insufficient outside evidence to inquire into the
validity of a jury verdict. However, the inclusion of the words “during the course
of deliberations” in the first sentence of the rule indicates that Evid.R. 606(B) is
meant to protect the deliberation process. Therefore, it follows that an alternate
juror, who did not participate in deliberations, could properly supply the evidence
necessary to inquire into the validity of the verdict reached by the jury.
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January Term, 2000
{¶ 76} The majority also concluded that the aliunde rule is not applicable
during the trial. Instead, the rule applies only after the jury decides on a verdict.
This fact further supports allowing an alternate juror, who did not participate in
deliberations, to supply the evidence necessary to challenge a jury verdict pursuant
to Evid.R. 606(B).
{¶ 77} While I share the concern of the majority that allowing an alternate
juror to provide the evidence needed to inquire into a jury’s verdict could easily
allow a single disgruntled alternate juror to attack a jury verdict, I believe that this
risk is outweighed by the right of the parties to a jury free of misconduct. Section
5, Article I of the Ohio Constitution guarantees the right to a trial by jury, and this
right carries with it by necessary implication the right to a trial by a jury of unbiased
and unprejudiced jurors. Lingafelter v. Moore (1917), 95 Ohio St. 384, 117 N.E.
16.
{¶ 78} Here, the appellate court found that there had been juror misconduct
during the trial and that such misconduct was prejudicial to the defendant. I agree
with the court of appeals that Evid.R. 606(B) should be interpreted to allow
testimony of an alternate juror as sufficient aliunde evidence to inquire into the
validity of a jury verdict.
{¶ 79} For these reasons, I would affirm the judgment of the court of
appeals with respect to the issue of juror misconduct.
__________________
COOK, J., concurring in part and dissenting in part.
I. Aliunde Evidence/Juror Misconduct
{¶ 80} The majority’s syllabus suggests that an alternate juror’s testimony
can never be sufficient “outside evidence” under Evid.R. 606(B) to permit jurors to
testify regarding extraneous prejudicial information. Like Chief Justice Moyer, I
am not convinced that a discharged alternate juror’s status—the status of having
once served as an alternate juror—should in every case preclude the trial court from
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relying on that individual’s testimony to trigger an inquiry into the validity of a
verdict.
{¶ 81} Under Civ.R. 47(C), “[a]n alternate juror who does not replace a
regular juror shall be discharged after the jury retires to consider its verdict.” A
discharged alternate juror thus no longer possesses “the same functions, powers,
facilities, and privileges as the regular jurors.” Id. A discharged alternate juror is
thus no longer a “juror” for purposes of the Civil Rules. And I see no compelling
reason to treat a discharged alternate juror as a “juror” under the aliunde rule either,
since this evidentiary rule is designed to protect the sanctity of the deliberative
process—a process in which the discharged alternate juror did not participate.
Accord State v. Rudge (1993), 89 Ohio App.3d 429, 437, 624 N.E.2d 1069, 1074
(“[A]lternate jurors who are not present during deliberations and do not participate
in rendering the verdict are not members of the trial jury for purposes of the aliunde
rule”).
{¶ 82} Though the trial court in this case ultimately rejected Rudge and
concluded that it could not use the alternate’s affidavit as the basis to examine the
jurors, the trial court also determined that even if the alternate’s affidavit satisfied
the aliunde rule, the juror examination revealed that Reiner suffered no prejudice.
We review the trial court’s decision denying Reiner’s motion for a new trial on an
abuse-of-discretion standard. State v. Schiebel (1990), 55 Ohio St.3d 71, 564
N.E.2d 54, paragraph one of the syllabus. Without mentioning this deferential
standard of review, the majority of the court of appeals concluded that what
occurred was “by definition * * * prejudicial” to Reiner. The dissenting judge on
the appellate panel noted that Reiner bore the burden of proving that any
unauthorized communications with jurors resulted in actual juror partiality, and
concluded that Reiner failed to meet his burden. I agree. As the trial judge stated,
all of the jurors “uniformly denied” that any improper communication with the
alternate juror affected their verdict.
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{¶ 83} Accordingly, like the majority, I would reverse the judgment of the
court of appeals and reinstate the judgment of the trial court denying Reiner’s
motion for a new trial on the basis of juror misconduct. However, I do not join the
majority’s syllabus, because I share Chief Justice Moyer’s view that the testimony
of a discharged alternate juror is not categorically insufficient aliunde evidence for
purposes of Evid.R. 606(B).
II. The Grant of Immunity to Susan Batt
{¶ 84} I dissent from the majority’s resolution of the immunity issue. The
majority concludes that the trial court’s grant of immunity to Susan Batt was
unlawful for two reasons. First, the majority concludes that Batt did not have a
valid Fifth Amendment privilege against self-incrimination. Second, the majority
decides that the grant of immunity that followed from this apparently invalid
privilege resulted in “serious prejudice” to Reiner. I respectfully disagree on both
counts.
A. Batt’s Entitlement to the Fifth Amendment Privilege
{¶ 85} I agree with the majority that the Fifth Amendment privilege against
self-incrimination is “confined to instances where the witness has reasonable cause
to apprehend danger from a direct answer.” (Emphasis added.) Hoffman v. United
States (1951), 341 U.S. 479, 486, 71 S.Ct. 814, 818, 95 L.Ed. 1118, 1124. But the
majority applies an inapposite test for “reasonable cause,” deciding that “Susan
Batt’s testimony did not incriminate her because she denied any involvement in the
abuse.”
{¶ 86} A witness’s denial of culpability regarding an offense should not
preclude the witness from asserting the privilege against self-incrimination. “The
privilege afforded not only extends to answers that would in themselves support a
conviction * * * but likewise embraces those which would furnish a link in the
chain of evidence needed to prosecute the claimant * * * .” Id. There are many
situations in which a witness could deny guilt but could nonetheless furnish a self-
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incriminating “link in the chain” if compelled to answer a particular question in
court. Witnesses who deny ultimate culpability for the defendant’s alleged offense
should not be categorically denied access to the Fifth Amendment privilege.
{¶ 87} The Hoffman case cited by the majority reinforces my view that the
“reasonable cause” standard for asserting the privilege is not as the majority opinion
suggests. In Hoffman, the United States Supreme Court noted that, “if the witness,
upon interposing his claim [of privilege], were required to prove the hazard [of
incrimination] in the sense in which a claim is usually required to be established in
court, he would be compelled to surrender the very protection which the privilege
is designed to guarantee. To sustain the privilege, it need only be evident from the
implications of the question, in the setting in which it is asked, that a responsive
answer to the question or an explanation of why it cannot be answered might be
dangerous because injurious disclosure could result. The trial judge in appraising
the claim ‘must be governed as much by his personal perception of the peculiarities
of the case as by the facts actually in evidence.’ “ (Emphasis added.) Id., 341 U.S.
at 486-487, 71 S.Ct. at 818, 95 L.Ed. at 1124, quoting Ex parte Irvine (S.D.Ohio
1896), 74 F. 954, 960.
{¶ 88} In the case at bar, Batt had “reasonable cause” to assert the privilege
against self-incrimination. Defense counsel’s announced theory of the case was
that Batt, not Reiner, was responsible not only for the alleged crime against Alex,
but also for the uncharged injuries suffered by Alex’s sibling. Given this, and given
the statements by defense counsel warning the trial court that a grant of immunity
would preclude a later trial against Batt for Alex’s death, I agree with the trial court
and the court of appeals that Batt’s assertion of the Fifth Amendment privilege was
amply supported by the “reasonable cause” Hoffman requires.
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B. The Trial Court’s Grant of Immunity
{¶ 89} Having rejected Batt’s entitlement to the privilege against self-
incrimination, the majority also concludes that “the wrongful grant of immunity
resulted in serious prejudice to the defendant.” To support this conclusion, the
majority claims that, “when the court granted her immunity, the court in effect was
telling the jury that Susan Batt did not cause Alex’s injuries.” (Emphasis added.)
{¶ 90} Since the trial court’s decision to grant or deny immunity under R.C.
2945.44 is reviewable only for an abuse of discretion, State ex rel. Ney v. Niehaus
(1987), 33 Ohio St.3d 118, 119, 515 N.E.2d 914, 916, I would not reverse that
decision on such speculative grounds. The majority claims that the grant of
immunity “told” the jury that Batt was faultless. It is equally possible—if not more
likely—that the jury would regard Batt as less credible, and a more likely source of
Alex’s injuries, after the trial court’s grant of immunity. After all, a grant of
immunity compels testimony from a witness who has something potentially self-
incriminating to say. R.C. 2945.44(A). Regardless, I would not substitute this
court’s judgment for the trial court’s on the basis of such speculation.
{¶ 91} The majority also decides that, to further the administration of
justice, “the jury should have been able to hear and evaluate all the evidence to
decide whether someone other than Matthew Reiner was responsible for Alex’s
death.” (Emphasis added.) I agree, but I fail to see how the trial court’s grant of
immunity to Batt here did anything to restrict the trial evidence. The jury heard
Batt’s immunized testimony. The trial court’s grant of immunity did not immunize
Batt from testifying—it “compel[led] the witness to answer.” R.C. 2945.44(A).
{¶ 92} Batt had reasonable cause to assert her Fifth Amendment privilege.
The trial court did not abuse its discretion or prejudice Reiner in deciding to grant
Batt transactional immunity in compliance with R.C. 2945.44. Accordingly, I
dissent from the majority’s conclusion that the trial court’s grant of immunity was
erroneous, and would affirm the court of appeals’ decision on this issue.
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__________________
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