stating that “the decision of the trial judge, in determining whether or not a declaration should be admissible under the spontaneous exclamations exception to the hearsay rule [excited utterance], should be sustained where such decision appears to be a reasonable one, even though the reviewing court ... would have made a different decision.”
How later courts described this case
- stating that “the decision of the trial judge, in determining whether or not a declaration should be admissible under the spontaneous exclamations exception to the hearsay rule [excited utterance], should be sustained where such decision appears to be a reasonable one, even though the reviewing court ... would have made a different decision.”
- finding that while experts may testify that it is their opinion that a child has been abused, and such opinions implicitly assert a belief in the child's story, such an opinion is only an indirect comment on truthfulness and is, therefore, admissible
- holding that even where a child's out-of-court statements are admissible under Evid.R. 803(4), the issue of whether the introduction of such statements violates a defendant's right of confrontation under the Sixth Amendment still remains
- allowing expert’s testimony that certain instruments were securities within the meaning of the Revised Code
Written by the judges who cited it.
Later courts went against this
Overruled in part, on other grounds by State v. Muttart, 116 Ohio St. 3d 5 (2007)
46 Ohio St.3d 108, 118 (1989), overruled in part on other grounds in State v. Muttart, 116 Ohio St.3d 5
Distinguished
Distinguished by In Re W.P., Unpublished Decision (12-9-2004), 2004 Ohio 6627 (2004)
Because of this, Boston is distinguishable.
The opinion
H. Brown, J.,
concurring. I write separately in this case to address a problem that arises when there are accusations of sexual abuse against a parent who is embroiled in a custody fight for the child. 18
In this case, the defendant requested permission to have his expert examine the child. The court denied the request. Thus, the defense was *130 forced to rely on the statements and opinions of experts chosen by the custodial parent. In a case like this one, in which there was a custody battle raging when the accusation was made, there is always the underlying suspicion that the accusation was linked to the custody dispute. 19
In such situations, a rule should be adopted, I believe, which would allow another expert, not hired by the accusing parent, to examine the child. At the same time, the court must be free to fashion an order which will protect the child from obtrusive questioning. The court-appointed expert would examine the child and submit a report to the judge who would make the report available to counsel for both the state and the defendant.
I strongly endorse the majority in its determination to have the Ohio Supreme Court Rules Advisory Committee and the General Assembly review the problems associated with adjudication of child abuse cases. Put simply, the legal system is failing to (1) accommodate the child witness in the court room and (2) separate the reliable from the false with respect to sex-abuse allegations. Rules and special procedures are needed, and should evolve from a study of the problems. They cannot be hastily formulated in a legal opinion.
The failure of the judicial system to deal with child abuse cases has reached the point of crisis. A thorough and careful consideration of procedural and evidentiary rule changes should be promptly undertaken.
Moyer, C.J., concurs in the foregoing opinion.
In one study, it was found that forty-one percent of the cases involving sexual abuse arose in divorce and custody cases. Wakefield & Underwager, Accusations of Child Sexual Abuse (Charles C. Thomas 1988) 294.
In this regard, see R.C. 2151.421(G) and Hartley v. Hartley (1988), 42 Ohio App. 3d 160 , 537 N.E. 2d 706 .