State v. Silverman

[Cite as State v. Silverman, 121 Ohio St.3d 581, 2009-Ohio-1576.]

THE STATE OF OHIO, APPELLANT, v. SILVERMAN, APPELLEE.

[Cite as State v. Silverman, 121 Ohio St.3d 581, 2009-Ohio-1576.]

Criminal law — Hearsay — Evid.R. 807 — Child declarant — A hearsay

statement of a child declarant can be admitted under Evid.R. 807 without

a determination of the child’s competence to testify.

(No. 2008-0582 — Submitted February 3, 2009 — Decided April 9, 2009.)

APPEAL from the Court of Appeals for Montgomery County,

No. 22097, 176 Ohio App.3d 12, 2008-Ohio-618.

__________________

SYLLABUS OF THE COURT

A hearsay statement of a child declarant can be admitted under Evid.R. 807

without a determination of the child’s competence to testify. (State v. Said

(1994), 71 Ohio St.3d 473, 644 N.E.2d 337, limited.)

__________________

O’CONNOR, J.

{¶ 1} Today we determine whether the statements of a child whose

testimony is not reasonably obtainable are admissible when the trial court has not

determined the child’s competence. For the reasons that follow, we hold that the

question of the admissibility of the statements under Evid.R. 807 does not require

a prior determination of the child’s competence to testify.

Relevant Background

{¶ 2} During Memorial Day weekend in 2006, appellant Doron

Silverman and his family1 visited his parents and sister Batya Silverman in

Indianapolis. After dinner, Batya went back to her apartment with Silverman’s

four-year-old son, M.S., who stayed the night with her.

1. This included Silverman’s wife Heather, his three-month-old daughter, K.S., and his son, M.S.

SUPREME COURT OF OHIO

{¶ 3} Batya and M.S. spent the next day at the apartment complex’s

swimming pool. After going back to her apartment, Batya decided to bathe M.S.

to wash off the chlorine from the pool. Batya, whom M.S. called “Poti,” was

undressing M.S. when he pulled on his penis, pointed to it, and said to her, “Poti,

put your mouth on it.”

{¶ 4} Batya was shocked by this statement because it was the first time

M.S. had ever said anything like that to her. She asked her boyfriend, Joe Farber,

to come in and hear what M.S. had said. Farber first asked M.S., to no avail, why

he said that to Batya. He then questioned M.S. whether he had ever seen that in a

movie; M.S. answered no. M.S. also said no when Farber inquired whether he

had ever seen his parents do that. Finally, when Farber asked where M.S. learned

it, M.S. responded, “Daddy did it. No more talk.” With that, Batya and Farber

decided not to pressure M.S. any more at that time, and they finished up the bath.

{¶ 5} Silverman and his wife came over to Batya’s that night, but M.S.’s

earlier comment was not mentioned. M.S. again stayed the night at Batya’s, and

the next day Farber and Batya asked M.S. if he remembered what he had told

them in the bathroom the previous day. M.S. said that he did, and they asked

M.S. again if he had learned it from watching a movie or his parents, to which

M.S. replied that daddy had done it. When asked if he did it to his father too,

M.S. said yes. Batya explored this line of questioning, and when she asked M.S.

if he had kissed his father’s penis, he answered, “No, I lick it.” M.S. further

indicated that Silverman was the only person who did this to him, that it was a

secret, and that he did not want to talk any more because he would get in trouble.

By the end of the conversation, M.S., who had been coloring, was stabbing the

paper with his pen and shaking his clenched fists.

{¶ 6} Batya’s mother then arrived unannounced at Batya’s apartment.

Batya relayed to her what M.S. had said. They left M.S. with Farber and another

friend of Batya’s and went back to Batya’s parents’ house. When Silverman

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arrived, Batya told him about M.S.’s comments. Silverman did not respond to

this information.

{¶ 7} After further conversation, the family decided not to call the police

and that M.S. and his sister would remain in Indiana for several days while

Silverman received help. However, Batya learned about a week later that the

children had been returned to Silverman’s care, which was sooner than the family

had originally planned. Soon thereafter, she contacted the Montgomery County

Children Services agency and the West Carrollton police department.

{¶ 8} The police interviewed Silverman and his wife on June 13. During

the interview, Silverman explained that because his wife was a stay-at-home

mother, his only responsibility with the children was to bathe them. He told the

detective that when he would get home from working at Chuck E. Cheese, he

would take off his clothes and put on a robe – sometimes tying it, sometimes not.

He and the kids would then take a bath together, and Silverman claimed that M.S.

would climb over him like a “jungle gym.” On one occasion, Silverman claimed

that M.S. pulled on Silverman’s penis in the bath, and Silverman responded by

pulling on M.S.’s. Silverman also told the detective that one time when M.S. was

climbing on him, M.S. bit Silverman’s penis while it was erect. When asked how

many times Silverman had his mouth on M.S.’s genitals, Silverman said two or

three times for about a second each time. When the interview was over,

Silverman agreed to write down a statement.

{¶ 9} On July 21, 2006, the Montgomery County Grand Jury returned a

three-count indictment against Silverman for rape and gross sexual imposition.

Prior to the indictment, however, Silverman’s wife set fire to their residence.

M.S. and K.S. were killed in the fire.2

2. Heather Silverman has since pleaded guilty to two counts of murder and three counts of

aggravated arson.

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{¶ 10} Because of M.S.’s death, the state moved to declare M.S.

unavailable for trial and to admit into evidence the statements that he had made to

Batya and Farber. After conducting a hearing pursuant to Evid.R. 807, the trial

court granted the state’s motion and held that M.S.’s statements were admissible.

The case proceeded to trial, and the jury returned a guilty verdict on only the

gross-sexual-imposition charge. Silverman was sentenced to five years in prison.

{¶ 11} Silverman appealed to the Second District Court of Appeals,

arguing that the trial court erred by admitting M.S.’s statement. Relying upon this

court’s decision in State v. Said (1994), 71 Ohio St.3d 473, 644 N.E.2d 337, the

appellate court reversed and overturned the conviction. State v. Silverman, 176

Ohio App.3d 12, 2008-Ohio-618, 889 N.E.2d 1034.

{¶ 12} We accepted jurisdiction over the state’s appeal. State v.

Silverman, 118 Ohio St.3d 1505, 2008-Ohio-3369, 889 N.E.2d 1024. The state

now asks us to overrule Said in its entirety or, in the alternative, to limit its

holding. Barring that, the state urges us to find that a child’s competence can be

established through extrinsic evidence. Because we find that admissibility under

Evid.R. 807 is not dependent on the child’s competence, we need not determine if

competence can be established by extrinsic evidence.

Analysis

{¶ 13} We begin our analysis by examining Evid.R. 807.

{¶ 14} The rule provides an exception to the general exclusion of hearsay

statements when a child under the age of 12 at the time of trial or hearing makes

an out-of-court statement describing any sexual act that is performed on, with, or

by the child. Evid.R. 807(A). For the statement to be admitted, the proponent of

the statement must not be able to reasonably obtain the child’s testimony. Evid.R.

807(A)(2). It is axiomatic that the testimony is not reasonably obtainable when

the child is deceased at the time of trial or hearing. See Evid.R. 807(B)(3)(a).

Notably absent from the rule is any requirement that the child declarant be

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determined to be competent to testify before the statement is admitted. See Said,

71 Ohio St.3d at 480, 644 N.E.2d 337 (Resnick, J., concurring in part and

dissenting in part) (“A competency hearing simply is not required by the plain

terms of Evid.R. 807(A)”).

{¶ 15} In Said, we were confronted primarily with the trial court’s failure

to record the hearing determining the competence of a five-year-old witness. The

majority held that the failure to record the hearing was reversible error. Id., 71

Ohio St.3d at 475, 644 N.E.2d 337. Having found error, the majority should have

stopped there. However, the majority sweepingly declared, without any authority,

that “Evid.R. 807 clearly does not dispose of the need to find a child competent.”

Id. at 476, 644 N.E.2d 337. Thus, in order to admit a child’s statement under

Evid.R. 807 after Said, a trial court is required to find that the child was

competent at the time he made the out-of-court statement. Id. at 477, 644 N.E.2d

337.

{¶ 16} The dissent in Said foresaw the problems with the majority’s

rationale and noted that the competence requirement established by the majority

“exceed[ed] the boundaries of Evid.R. 807.” Id., 71 Ohio St.3d at 479, 644

N.E.2d 337. It recognized that “[t]he effect of instituting the majority’s position *

* * will be to preclude the admission of otherwise qualified out-of-court

statements into evidence. For example, in those situations where the abused

victim falls into a coma or dies at some point after making statements to a parent

or therapist concerning the source of his or her abuse, the statements would not be

admissible, given the child’s inability to attend a competency hearing. That result

surely defeats the obvious purpose for which Evid.R. 807 was adopted.” Id. at

480, 644 N.E.2d 337.

{¶ 17} The prescience of the dissent was borne out in State v. Meadows

(Feb. 12, 2001), 4th Dist. No. 99CA2651, 2001 WL 803822. In that case, a jury

convicted the defendant of murdering his three-year-old daughter. The state

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introduced testimony from several witnesses relating comments made to them by

the daughter that the defendant had abused her. The defendant argued that the

testimony was not admissible because the state had failed to satisfy the

requirements of Evid.R. 807 and the trial court had not determined whether the

daughter was competent under Evid.R. 601 at the time she made her remarks.

{¶ 18} The court of appeals rejected that argument, finding that “Said * *

* exclude[d] hearsay statements that Evid.R. 807 plainly contemplates are

admissible.” Id. at *9. It therefore distinguished Said on the basis of the child’s

death, finding that in this “situation, the reasoning of the Said Court deviates from

the clear provisions of Evid.R. 807.” Id.

{¶ 19} The distinction that the Fourth District Court of Appeals drew in

an attempt to evade Said is artificial and does not withstand close scrutiny in light

of Said’s far-reaching holding. In Said, this court held in no uncertain terms that

a competence hearing was required for the statements to be admissible under

Evid.R. 807. It left no room for exceptions. If, in the case sub judice, we were to

draw a distinction based on the child’s death, we would leave room to question

whether Said continues to apply to children who are unavailable due to an

infirmity or other medical condition, like a coma.

{¶ 20} We now hold that the better approach is to return to the plain text

of Evid.R. 807. The rule says absolutely nothing about a child declarant’s

competence. Despite the fact that the text of the rule lacks this requirement, Said

imposed a judicially created rule that contravenes both the language and intent of

Evid.R. 807.

{¶ 21} The Supreme Court of Washington recently confronted the same

problem we do today. In State v. C.J. (2003), 148 Wash.2d 672, 63 P.3d 765, the

court examined the relationship between its competence and child-hearsay-

exception statutes. In doing so, the court implicitly overruled its prior decision in

State v. Ryan (1984), 103 Wash.2d 165, 691 P.2d 197. See C.J., 148 Wash.2d at

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694, 63 P.3d 765 (Sanders, J., dissenting). In Ryan, the court had held that a

“declarant’s competency is a precondition to admission of his hearsay

statements.” Id., 103 Wash.2d at 173, 691 P.2d 197. In reaching this conclusion,

Ryan relied on the same authority as this court did in Said – 5 Wigmore on

Evidence (Chadbourn Rev.1974) 255, Section 1424.

{¶ 22} In contrast, the court in C.J. found that the prerequisites of

Washington’s child-hearsay-exception statute, Wash.Rev. Code 9A.44.120, like

Evid.R. 807, do not contain “any requirement that a declarant * * * be shown to

have possessed testimonial competency at the time of the out of court statement.”

Id., 148 Wash.2d. at 683, 63 P.3d 765. That state’s supreme court determined that

if the Washington legislature had intended the child to be competent when making

the out-of-court statement, it would have included such language in the statute.

Id. at 684, 63 P.3d 765. Furthermore, the court reasoned that a finding of

incompetence “does not make the hearsay statements unreliable.” Id. at 685, 63

P.3d 765. Therefore, so long as the child’s out-of-court statement satisfies

Wash.Rev.Code 9A.44.120’s requirements of reliability and corroboration, the

statement is admissible if the child is unavailable. Id.

{¶ 23} Likewise, the Supreme Court of Colorado has recognized that there

is a “flawed assumption that a determination of incompetency at the time of the

hearing invariably establishes that the child’s statement was not reliable.” People

v. Dist. Court of El Paso Cty. (Colo.1989), 776 P.2d 1083, 1088.3 The issue

before the court was whether the trial court properly excluded a four-year-old

victim’s hearsay statements regarding her father’s alleged sexual abuse after

determining that she was incompetent to testify as a witness.

3. Other states that adhere to this rationale include Florida, Perez v. State (Fla.1988), 536 So.2d

206, and Illinois, see People v. Hart (1991), 214 Ill.App.3d 512, 158 Ill.Dec. 103, 573 N.E.2d

1288 (abrogated on other grounds).

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{¶ 24} As does the Washington statute previously discussed and Evid.R.

807, Colo.Rev.Stat. 13-25-129 contains an exception from the hearsay exclusion

for statements made by a child who has been abused. Under the Colorado law,

the child’s out-of-court statement is admissible, when the child is unavailable to

testify, if “[t]he [trial] court finds in a hearing * * * that the time, content, and

circumstances of the statement provide sufficient safeguards of reliability.”

Colo.Rev.Stat. 13-25-129(1)(a).

{¶ 25} The court in El Paso distinguished the purpose of a hearing on

competence, which “determines only whether a child can accurately recollect and

narrate at trial the events of abuse,” id., 776 P.2d at 1087, from the purpose of the

hearsay-exception statute, which permits admission of the statement, without the

need to determine competence, when the trial court determines that the “statement

is supported by sufficient safeguards of reliability under [Colo.Rev.Stat.] 13-25-

129(1)(a).” Id. at 1088. Thus, as long as the child’s statement satisfied those

safeguards, it was admissible regardless of competence. Id. at 1090.

{¶ 26} The plain text of Evid.R. 807, the cogent dissent in Said, and the

reasoning of C.J. and El Paso provide compelling reasons to find that the dicta in

Said that judicially grafted the competence requirement onto Evid.R. 807 is

improper and does not effectuate the rule. Even a cursory look at Evid.R. 807

illustrates the high threshold a movant must meet for the statement to be

admitted.4

4. A 1995 review of child-hearsay statutes revealed that of the 34 states that then allowed an

exception to hearsay for child victims of abuse, Ohio was the only one that required that the

declarant’s statement be as reliable as one admitted under other hearsay exceptions, that the child

declarant be unavailable to testify, and that there be independent corroboration of the crime.

Robert Marks, Note, Should We Believe the People Who Believe the Children?: The Need for a

New Sexual Abuse Tender Years Hearsay Exception Statute (1995), 32 Harv.J. on Legis. 207,

238-240.

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{¶ 27} First, the court must consider a host of factors “surrounding the

making of the statement, including but not limited to spontaneity, the internal

consistency of the statement, the mental state of the child, the child's motive or

lack of motive to fabricate, the child's use of terminology unexpected of a child of

similar age, the means by which the statement was elicited, and the lapse of time

between the act and the statement.” Evid.R. 807(A)(1). Second, the child’s

testimony must reasonably be unobtainable. Evid.R. 807(A)(2). Finally, there

must be independent corroboration of the alleged acts. Evid.R. 807(A)(3).

{¶ 28} Applying these requirements to the case at hand, the trial court

carefully reviewed the totality of the circumstances surrounding M.S.’s statements

and appropriately determined that there were sufficient indicia of reliability and

particularized guarantees of trustworthiness that made the statements as reliable as

those admitted under Evid.R. 803 and 804. In particular, the trial court noted that

M.S.’s initial statement was unsolicited and spontaneous; subsequent statements

were consistent; M.S. was not coached or coerced, and the statements were given

without input from Batya and Farber; M.S. recognized the nature of his statements

when he refused to answer any more questions; the acts M.S. described are not

expected to be within the knowledge of a child that age unless he had observed

those acts or was the victim of them; and there was no evidence of a motive to lie

about these allegations.

{¶ 29} Furthermore, the remaining criteria of Evid.R. 807 obviously were

satisfied: M.S. was unavailable to testify; Silverman’s confession provided

independent corroboration of the sexual acts; and the state provided proper

notification of its intent to use the statement.5 The statement, therefore, was

properly admitted under Evid.R. 807.

5. Evid.R. 807(A)(2), (3), and (4).

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{¶ 30} We are mindful that today’s holding entails limiting Said to the

extent that Said requires that a child be found competent prior to admitting the

statement under Evid.R. 807. Although the principle of “ ‘stare decisis is the

bedrock of the American judicial system,’ ” State v. Kalish, 120 Ohio St.3d 23,

2008-Ohio-4912, 896 N.E.2d 124, ¶ 22, quoting Westfield Ins. Co. v. Galatis, 100

Ohio St.3d 216, 2003-Ohio-5849, 797 N.E.2d 1256, it is one “ ‘of policy and not

a mechanical formula of adherence to the latest decision.’ ” Payne v. Tennessee

(1991), 501 U.S. 808, 828, 111 S.Ct. 2597, 115 L.Ed.2d 720, quoting Helvering v.

Hallock (1940), 309 U.S. 106, 119, 60 S.Ct. 444, 84 L.Ed. 604.

{¶ 31} In Galatis, we recognized this tension and adopted a test for

overruling precedent. However, “[c]onsiderations in favor of stare decisis are at

their acme * * * where reliance interests are involved,” Payne, 501 U.S. at 828,

111 S.Ct. 2597, 115 L.Ed.2d 720. Individuals conducting their affairs must be

able to rely on the law’s stability. See, e.g., United States ex rel. Fong Foo v.

Shaughnessy (C.A.2, 1955), 234 F.2d 715, 719. Thus, Galatis must be applied in

matters of substantive law.

{¶ 32} “[T]he opposite is true in cases * * * involving procedural and

evidentiary rules,” Payne, 501 U.S. at 828, 111 S.Ct. 2597, 115 L.Ed.2d 720,

because a procedural or evidentiary rule “does not serve as a guide to lawful

behavior.” United States v. Gaudin (1995), 515 U.S. 506, 521, 115 S.Ct. 2310,

132 L.Ed.2d 444. In fact, “as to such rules, stare decisis has relatively little

vigor.” Shaughnessy, 234 F.2d at 719; see also Williams v. Kidd (1915), 170 Cal.

631, 650, 151 P. 1 (“There is * * * nothing, of course, in the doctrine of stare

decisis which can apply to a mere rule of evidence in which no one has a vested

right”).

{¶ 33} The instant case addresses an evidentiary rule and procedure “that

do[ ] not alter primary conduct.” Hohn v. United States (1998), 524 U.S. 236,

252, 118 S.Ct. 1969, 141 L.Ed.2d 242. Said’s expansive holding did not affect

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Silverman’s conduct in this matter, so overruling Said will not disrupt any

reliance interest. See Pearson v. Callahan (2009), __ U.S. __, 129 S.Ct. 808, 816,

172 L.Ed.2d 565 (“Like rules governing procedures and the admission of

evidence in the trial courts, [the] two-step protocol [established in Saucier v. Katz

(2001), 533 U.S. 194, 121 S.Ct. 2151, 150 L.Ed.2d 272] does not affect the way

in which parties order their affairs. Withdrawing from Saucier’s categorical rule

would not upset settled expectations on anyone's part”). Galatis therefore is

inapplicable because this matter involves an evidentiary rule, and so stare decisis

plays a reduced role. Gaudin, 515 U.S. at 521, 115 S.Ct. 2310, 132 L.Ed.2d 444.

Conclusion

{¶ 34} For the foregoing reasons, we limit Said and hold that a hearsay

statement of a child declarant can be admitted under Evid.R. 807 without a

determination of the child’s competence to testify. We therefore reverse the

judgment of the court of appeals and reinstate the trial court’s judgment.

Judgment reversed.

LUNDBERG STRATTON, O’DONNELL, and CUPP, JJ., concur.

MOYER, C.J., and PFEIFER and LANZINGER, JJ., dissent.

__________________

MOYER, C.J., dissenting.

{¶ 35} I concur in Justice Lanzinger’s dissent, which argues that the

judgment of the court of appeals should be affirmed. But I do not agree with the

dissent’s rejection of Westfield Ins. Co. v. Galatis, 100 Ohio St.3d 216, 2003-

Ohio-5849, 797 N.E.2d 1256. First, I am not prepared to abandon application of

the Galatis test in criminal cases. The ability to rely on a stable legal framework

is, if anything, more important in criminal matters where an individual’s liberty

may be at stake. Second, I do not agree with the majority that we should abandon

the Galatis test in these circumstances. The majority argues that stare decisis

plays a “reduced role” here because the issue before us involves a rule of evidence

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rather than a substantive rule of law and there are no reliance interests at stake.

Majority opinion at ¶ 33. The majority goes on, however, to reduce to zero the

role of our precedent, offering little more than disagreement with our prior

reasoning for why State v. Said (1994), 71 Ohio St.3d 473, 644 N.E.2d 337,

should be limited or abandoned. The majority relies on United States Supreme

Court opinions for the contention that stare decisis is less important in procedural

matters. See, e.g., Pearson v. Callahan (2009), __ U.S. __, 129 S.Ct. 808, 172

L.Ed.2d 565. This approach is certainly not binding on us, and I refrain from

either adopting or rejecting it at this point.

{¶ 36} I would note, however, that the majority overstates the arguments

from the United States Supreme Court cases. Beyond contending that reliance

interests are not implicated by procedural rules, the court in Pearson also noted

abundant criticism of the precedent at issue as well as its inconsistent application

by the lower courts. Id. at ___ U.S. ___, ___, 129 S.Ct. at 816-818, 172 L.Ed.2d

565. The court in Payne v. Tennessee (1991), 501 U.S. 808, 828-830, 111 S.Ct.

2597, 115 L.Ed.2d 720, similarly overruled two cases after acknowledging that

several justices had questioned the precedent and that it had “defied consistent

application by the lower courts.” The opinion in Hohn v. United States (1998),

524 U.S. 236, 252, 118 S.Ct. 1969, 141 L.Ed.2d 242, pointed to inconsistent

application of the precedent at issue within United States Supreme Court cases

themselves. The majority additionally cites United States v. Gaudin (1995), 515

U.S. 506, 521, 115 S.Ct. 2310, 132 L.Ed.2d 444, which does not specifically rely

on the inconsistent application of a prior rule to overturn precedent but does

emphasize that the precedent relied on an interpretation of the United States

Constitution that had since been eroded by subsequent decisions.

{¶ 37} Although these cases from the United States Supreme Court do not

directly adopt a multipart framework for overruling precedent, they consistently

rely on essentially the same factors that we outlined in Galatis. Galatis held that

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“[a] prior decision of the Supreme Court may be overruled where (1) the decision

was wrongly decided at that time, or changes in circumstances no longer justify

continued adherence to the decision, (2) the decision defies practical workability,

and (3) abandoning the precedent would not create an undue hardship for those

who have relied upon it.” Galatis, 100 Ohio St.3d 216, 2003-Ohio-5849, 797

N.E.2d 1256, at paragraph one of the syllabus. In Pearson, for example, the

United States Supreme Court correspondingly relied on arguments that the prior

cases were to at least some extent wrongly decided, that the precedent had been

inconsistently applied, and that reliance interests were lessened because the case

involved a procedural rule. Pearson, __ U.S. __, 129 S.Ct. at 816-821, 172

L.Ed.2d 565.

{¶ 38} The majority misconstrues the United States Supreme Court

opinions, ignoring the factors, other than reliance interests, that were considered

by the court before it overruled a prior decision. A thorough examination of the

cases cited by the majority actually confirms the prudence of our test in Galatis.

Because I believe Said was rightly decided and should be followed here, I find it

unnecessary to apply Galatis. But even if one disagrees, as the majority does, our

well-established test for overturning precedent should be fully applied. The

majority’s opinion actually indirectly applies the first and third steps of the

Galatis test, though it comes to the wrong conclusion, in discussing the purported

problems with Said and the lack of reliance interests at stake. It nevertheless

neglects to apply the second step and concludes that Galatis is inapplicable based

only on the third step. For these reasons, as well as those offered by Justice

Lanzinger, I dissent.

__________________

LANZINGER, J., dissenting

{¶ 39} Because Evid.R. 601 does not yet provide that children victimized

by sexual abuse are presumed to be competent to testify, I would affirm the

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judgment of the court of appeals. In casting aside the need for a competence

determination because of its interpretation of Evid.R. 807, the child-hearsay

exception, the majority actually overrules State v. Said (1994), 71 Ohio St.3d 473,

644 N.E.2d 337. I respectfully dissent.

{¶ 40} The majority concludes that the text of Evid.R. 807 does not

require a competence determination and opines that the Said court “sweepingly

declared, without any authority, that ‘Evid.R. 807 clearly does not dispose of the

need to find a child competent.’ Id. at 476, 644 N.E.2d 337.” (Emphasis added.)

Majority opinion at ¶ 15. However, this statement ignores the court’s reliance on

Evid.R. 601 in Said.

Competence of a witness is governed by Evid.R. 601

{¶ 41} While it is true that Evid.R. 807 does not address a child’s

competence, Evid.R. 601(A) does address competence:

{¶ 42} “Every person is competent to be a witness except

{¶ 43} “(A) Those of unsound mind, and children under ten years of age,

who appear incapable of receiving just impressions of the facts and transactions

respecting which they are examined, or of relating them truly.” (Emphasis

added.) This rule, therefore, presumes that children under ten are incompetent

unless certain factors have been met.

{¶ 44} A trial court must conduct a voir dire examination of a child under

ten years of age to determine the child’s competence to testify. In making this

determination, the court must consider “(1) the child's ability to receive accurate

impressions of fact or to observe acts about which he or she will testify, (2) the

child's ability to recollect those impressions or observations, (3) the child's ability

to communicate what was observed, (4) the child's understanding of truth and

falsity, and (5) the child's appreciation of his or her responsibility to be truthful.”

State v. Frazier (1991), 61 Ohio St.3d 247, 251, 574 N.E.2d 483.

{¶ 45} Competence is an issue separate from any hearsay exception.

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Ohio’s child hearsay exception rule is Evid.R. 807

{¶ 46} Evid.R. 807 was adopted, effective July 1, 1991, as a result of this

court’s request to the Supreme Court Rules Advisory Committee and the General

Assembly to address the special problems presented by the hearsay statements of

children in abuse cases. State v. Boston (1989), 46 Ohio St.3d 108, 115, 545

N.E.2d 1220. Notably, however, Evid.R. 601 did not change.

{¶ 47} Evid.R. 807 obliges the trial court to find that the circumstances

surrounding the making of the child’s statement make the statement “at least as

reliable” as those admitted under Evid.R. 803 (availability of declarant

immaterial) and 804 (declarant unavailable). The rule includes factors that should

be considered when determining the reliability of the statement.

{¶ 48} Evid.R. 807(A) provides:

{¶ 49} “An out-of-court statement made by a child who is under twelve

years of age at the time of trial or hearing describing any sexual act performed by,

with, or on the child or describing any act of physical violence directed against

the child is not excluded as hearsay under Evid.R. 802 if all of the following

apply:

{¶ 50} “(1) The court finds that the totality of the circumstances

surrounding the making of the statement provides particularized guarantees of

trustworthiness that make the statement at least as reliable as statements admitted

pursuant to Evid.R. 803 and 804. The circumstances must establish that the child

was particularly likely to be telling the truth when the statement was made and

that the test of cross-examination would add little to the reliability of the

statement. In making its determination of the reliability of the statement, the

court shall consider all of the circumstances surrounding the making of the

statement, including but not limited to spontaneity, the internal consistency of the

statement, the mental state of the child, the child's motive or lack of motive to

fabricate, the child's use of terminology unexpected of a child of similar age, the

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means by which the statement was elicited, and the lapse of time between the act

and the statement. In making this determination, the court shall not consider

whether there is independent proof of the sexual act or act of physical violence.”

{¶ 51} Evid.R. 807(A) also requires that the child's testimony not be

“reasonably obtainable by the proponent of the statement,” that there be

independent proof of the sexual act or act of physical violence, and that the

proponent notify all other parties of the content of the statement, the identity of

the witness, and the circumstances surrounding the statement at least ten days

before the trial or hearing. Evid.R. 807(A)(2) to (4). The remainder of the rule

defines the phrase “not reasonably obtainable.” Evid.R. 807(B).

{¶ 52} Far from imposing a judicially created requirement onto the rule,

the majority in Said explained how Evid.R. 807 does not dispose of the need to

find a child competent, since competence is not the same issue as hearsay:

{¶ 53} “Competency under Evid.R. 601(A) contemplates several

characteristics. * * * Those characteristics can be broken down into three

elements. First, the individual must have the ability to receive accurate

impressions of fact. Second, the individual must be able to accurately recollect

those impressions. Third, the individual must be able to relate those impressions

truthfully. See, generally, 2 Wigmore on Evidence (Chadbourn Rev.1979) 712-

713, Section 506.

{¶ 54} “Out-of-court statements that fall within Evid.R. 807, like the other

hearsay exceptions, possess a ‘circumstantial probability of trustworthiness.’ See

5 Wigmore, supra, at 253, Section 1422. In other words, under unique

circumstances, we make a qualified assumption that the declarant related what

she believed to be true at the time she made the statement. However, those same

circumstances do not allow us to assume that the declarant accurately received

and recollected the information contained in the statement. Whether she

accurately received and recollected that information depends upon a different set

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of circumstances, those covering the time from when she received the information

to when she related it. As a result, even though a statement falls within a hearsay

exception, two elements of the declarant's competency remain at issue and must

still be established. Thus, a trial court must find that a declarant under the age of

ten was competent at the time she made the statement in order to admit that

statement under Evid.R. 807.” (Emphasis sic and footnote omitted.) 71 Ohio

St.3d at 476-477, 644 N.E.2d 337.

{¶ 55} This court’s rationale for requiring competence determinations

shows that the principle established in Said was well grounded and was hardly

made “without authority.”

Child-hearsay exceptions in other jurisdictions

{¶ 56} Other states have handled the concern over competence by statute,

establishing that children under ten are competent if they are victims of certain

offenses. See, e.g., Ala.Code 15-25-3(e) (“a child victim of a physical offense,

sexual offense, or sexual exploitation, shall be considered a competent witness”);

Conn.Gen.Stat.Ann. 54-86h (“any child who is a victim of assault, sexual assault

or abuse shall be competent to testify without prior qualification”); Utah Code

Ann. 76-5-410 (“A child victim of sexual abuse under the age of ten is a

competent witness and shall be allowed to testify without prior qualification in

any judicial proceeding. The trier of fact shall determine the weight and

credibility of the testimony”); Mo.Ann.Stat. 491.060(2).

{¶ 57} Similarly, in federal courts, child victims are presumed competent

to testify. Section 3509(c)(2), Title 18, U.S.Code. A court may conduct a

competence examination of a proposed child witness only upon submission of a

written motion by a party offering proof of incompetence and compelling reasons

for the examination. Section 3509(c)(3) and (4), Title 18, U.S.Code.

{¶ 58} The majority cites cases from Washington and Colorado to bolster

its conclusion that a competence determination is not needed in Ohio. State v.

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C.J. (2003), 148 Wash.2d 672, 63 P.3d 765; People v. Dist. Court of El Paso Cty.

(Colo.1989), 776 P.2d 1083. But the law of both states differs from Ohio’s in

significant ways. Unlike Evid.R. 601, the Washington competence statute does

not directly create a presumption that children under ten are not competent. The

Washington statute simply states that persons are incompetent if they “are of

unsound mind, or intoxicated at the time of their production for examination,” and

“appear incapable of receiving just impressions of the facts, respecting which they

are examined, or of relating them truly.” Wash.Rev.Code 5.60.050. And

Colorado specifically removes the presumption of a child victim’s incompetence

in a civil or criminal proceeding for child abuse or a sexual offense if the child is

“able to describe or relate in language appropriate for a child of that age the

events or facts respecting which the child is examined.” Colo.Rev.Stat.Ann. 13-

90-106(1)(b)(II).

{¶ 59} Evid.R. 601, on the other hand, does not exempt any type of

proceeding that involves children from the presumption of incompetence.

Changes to the competence rules are a matter for the Rules Committee

{¶ 60} The court of appeals followed Said’s mandate that “a trial court

must find that a declarant under the age of ten was competent at the time she

made the statement in order to admit that statement under Evid.R. 807." 71 Ohio

St.3d at 477, 644 N.E.2d 337. Appellant argues that Said should be overruled and

that competence hearings should be abandoned when a child’s statement meets all

of the requirements of Evid.R. 807 because the child victim’s statements are

needed to prosecute sexual abuse cases and Evid.R. 807 guarantees the reliability

of the statements.

{¶ 61} These are good policy arguments. But Evid.R. 601 still speaks of

the presumed incompetence of a child under ten. The Ohio Rules of Evidence are

designed to work together with the common law. “The principles of the common

law of Ohio shall supplement the provisions of these rules, and the rules shall be

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construed to state the principles of the common law of Ohio unless the rule clearly

indicates that a change is intended.” Evid.R. 102. Evid.R. 807 does not indicate

an intent to disturb Evid.R. 601. Until Evid.R. 601 is modified, and the

presumption is changed for cases of this type, competence is still an issue for the

trial court to determine.

{¶ 62} I also disagree with the majority’s discussion of Westfield Ins. Co.

v. Galatis, 100 Ohio St.3d 216, 2003-Ohio-5849, 797 N.E.2d 1256. I would not

apply the precedent-changing rules to criminal cases, because those rules were

created in the context of substantive civil rather than criminal law. In addition,

Evid.R. 807 is more than a mere procedural rule when it applies to criminal cases.

A defendant’s right to confrontation is protected by the Sixth Amendment to the

United States Constitution and Section 10, Article I of the Ohio Constitution (“In

any trial, in any court, the party accused shall be allowed * * * to meet the

witnesses face to face”). And as this court noted in State v. Muttart, “ ‘Evid.R.

807's “totality of the circumstances” test is designed specifically with the

Confrontation Clause requirements in mind. See Staff Notes to Evid.R. 807.’ ”

116 Ohio St.3d 5, 2007-Ohio-5267, 875 N.E.2d 944, ¶ 37, quoting State v. Dever

(1992), 64 Ohio St.3d 401, 414, 596 N.E.2d 436.

{¶ 63} State v. Said, 71 Ohio St.3d 473, 644 N.E.2d 337, remains good

law in Ohio. The General Assembly has provided a child-hearsay exception by

approving changes to the Ohio Rules of Evidence offered by the Supreme Court’s

Rules Committee. But until there is a presumption of competence for child

witnesses provided under Evid.R. 601, I would follow precedent. Therefore, I

respectfully dissent.

PFEIFER, J., concurs in the foregoing opinion.

__________________

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Mathias H. Heck Jr., Montgomery County Prosecuting Attorney, and R.

Lynn Nothstine and Carley J. Ingram, Assistant Prosecuting Attorneys, for

appellant.

Michael T. Columbus and Frank Malocu, for appellee.

Timothy Young, Ohio Public Defender, and Stephen P. Hardwick,

Assistant Public Defender, urging affirmance for amicus curiae, Ohio Public

Defender.

______________________

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