# State v. Boston

> Ohio Supreme Court · October 25, 1989 · 46 Ohio St. 3d 108

URL: https://www.frixlaw.com/law-library/cases/6762050

## Case

- **Full name:** The State of Ohio v. Boston
- **Court:** Ohio Supreme Court
- **Decided:** October 25, 1989
- **Citations:** 46 Ohio St. 3d 108; 545 N.E.2d 1220; 1989 Ohio LEXIS 274
- **Precedential status:** Published
- **Opinion:** Concurrence by Holmes
- **Judges:** Brown, Douglas, Eighth, Holmes, Moyer, Nick, Patton, Res, Sweeney, Syllabus, Wright
- **Cited by:** 477 later opinions in the Frix Law Library

## Citator (automated)

- **Red flag:** Overruled in part, on other grounds by State v. Muttart, 116 Ohio St. 3d 5 (2007).
- Negative treatments: 2
- Distinguished by: 1
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/6762050

## How later opinions describe it (automated extraction)

- 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 th…
- 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
- discussing, in the context of a sexual-abuse case involving a child-victim, “it is the fact-finder who bears the burden of assessing the credibility and veracity of the witness”

## Opinion text

Holmes, J.,
concurring in judgment. I concur in the judgment of the majority, in that the trial court below erred in disallowing the defendant to *131 obtain expert testimony in order to rebut the state’s testimony of Dr. Asch and Dr. Lord as to the veracity of the child involved in this case. The majority’s syllabus law, however, goes too far: these expert witnesses did not express a mere opinion as to whether the child was lying; rather, the testimony was by experts possessed of knowledge, skill, experience and training in child abuse that the child had neither fantasized her abuse nor been programmed to accuse her father of abuse. Faced with such testimony, the defendant should have been given the opportunity to present rebuttal expert testimony as to these opinions.
To this extent, I concur in the thoughts of my colleague, Justice Brown. A defendant should have the opportunity to have his own expert, or one appointed by the court, examine the child for evidence of just such fantasizing or programming-on the part of others. This is not the proper subject of syllabus law, however.
This majority opinion presents its readers with a plethora of ideas for change of this state’s Rules of Evidence which individually may have some merit, but when taken in their multiplicity, as one would necessarily relate to the other, or in their total context, have many faceted considerations which should not be reasonably promulgated by way of opinion. Rather, all such rule changes or interpretations should be accomplished more appropriately by way of consideration and recommendation by the Supreme Court Rules Advisory Committee established by this court.
Sexual abuse of a very young child by her own father is an especially heinous crime since the young victim is unable to protect herself from the sexual perversions of her father. This crime is a very secretive offense with the only witnesses to the crime usually being the young victim and the defendant. When the victim is found incompetent, that result should not effect the automatic dismissal of charges against the defendant. These young citizens of our state should be protected within the reasonable limits of our evidentiary rules. Recognizing that some amendments or changes are needed in the applicable rules in regard to the problems presented in this case, I would strongly suggest that all the rules discussed herein as would relate to child abuse cases be submitted to the Supreme Court Rules Advisory Committee of this court for thorough review, and that the committee report back to this court with a recommendation for appropriate action in the nature of rule promulgation, within a reasonably immediate period.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/6762050. Public record. Not legal advice.