Hearsay Testimony Relating Child’s Statement Is Admissible Without Test of Child’s Competence
2008-0582. State v. Silverman, Slip Opinion No. 2009-Ohio-1576.
Montgomery App. No. 22097, 176 Ohio App.3d 12, 2008-Ohio-618. Judgment reversed, and judgment of the trial court reinstated.
Lundberg Stratton, O'Connor, O'Donnell, and Cupp, JJ., concur.
Moyer, C.J., and Pfeifer and Lanzinger, JJ., dissent.
http://www.supremecourt.ohio.gov/rod/docs/pdf/0/2009/2009-Ohio-1576.pdf 
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(April 9, 2009) In a decision announced today, the Supreme Court of Ohio held that under Ohio Evidence Rule 807, a third party may present “hearsay” testimony in a criminal trial relating statements made by a child describing alleged sexual or physical abuse of the child without a prior determination by the court of the child’s competence to testify.
The court’s 4-3 majority decision, which reversed a ruling of the 2nd District Court of Appeals, was authored by Justice Maureen O’Connor.
With certain specified exceptions, Ohio’s rules of evidence generally bar the admission at trial of “hearsay” testimony in which a third party relates statements allegedly made by another person when the person who allegedly made the statements does not testify at trial. One exception to the hearsay rule is contained in Evid.R. 807, which allows a third party to testify about statements made by a child under the age of 10 describing a “sexual act performed by, with or on the child, or describing any act of physical violence directed against the child” when the child’s own testimony at trial “is not reasonably obtainable.”
A separate rule, Evid.R. 601, creates a presumption that a child under the age of 10 is not competent to testify in court where it appears that the child is “incapable of receiving just impressions of the facts and transactions respecting which they are examined, or of relating them truly.”
In this case, Doron Silverman of West Carrollton was charged with sexually abusing a 4-year-old family member identified by the initials M.S. The charges were based on statements made by the child to other family members. When questioned by police, Silverman’s answers lent some credibility to the child’s statements. Before Silverman was brought to trial, M.S. died in a fire. At trial, Silverman moved to suppress any third-party hearsay testimony relating to M.S.’s statements. The trial court denied the motion to suppress based on the exception to hearsay in Evid.R. 807, and witnesses testified about the child’s statements alleging sexual abuse. Silverman was convicted of gross sexual imposition and sentenced to five years in prison.
Silverman appealed the denial of his motion to suppress the hearsay testimony. On review, the 2nd District Court of Appeals reversed his conviction. The court of appeals held that because M.S. was under the age of 10 at the time he made the statements suggesting abuse, those statements could be admitted into evidence against Silverman only if the trial court had determined that the child was competent to give reliable testimony under Evid.R. 601. Citing the Supreme Court of Ohio’s 1994 decision in State v. Said, the 2nd District held that, in the absence of a finding of competency, M.S.’s statements were inadmissible as evidence against Silverman notwithstanding the hearsay exception in Evid.R. 807.
The state, represented by the Montgomery County prosecutor’s office, sought and was granted Supreme Court review of the 2nd District’s ruling.
In today’s decision, the Court reversed the 2nd District and reinstated Silverman’s conviction. Writing for the majority, Justice O’Connor observed that in the Said case, the central issue presented for judgment was whether a trial court’s failure to make a record of a hearing determining the competency of a five-year-old witness was reversible error. “The majority held that the failure to record the hearing was reversible error,” wrote Justice O’Connor. “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.’ ... 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.”
Justice O’Connor quoted from a dissent in the Said decision which warned 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.’”
Finding that the facts of this case present exactly the dilemma anticipated by the dissent in Said, Justice O’Connor rejected the approach of grafting onto Said an exception for cases in which the child declarant dies before trial, because that “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.” Instead, she wrote, “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.”
Justice O’Connor cited decisions in which the Washington (State v. C.J.) and Colorado (People v. District Court of El Paso Cty) Supreme Courts confronted similar conflicts between child witness competency requirements and a hearsay exception for a child’s statement describing abuse. In both cases, she observed, the courts concluded that the hearsay exception permitted admission of a child’s statements without a determination of competence as long as the trial court satisfied the other safeguards of reliability set forth in the hearsay rule.
“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 into Evid.R. 807 is improper and does not effectuate the rule,” wrote Justice O’Connor. Citing specific reliability criteria in Evid.R. 807 that the trial court applied before admitting hearsay testimony about M.S.’s statements, she wrote: “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 (family members); 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.”
“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. The statement, therefore, was properly admitted under Evid.R 807.”
Justice O’Connor acknowledged that today’s majority decision limits the Court’s prior holding in Said, but held that because the issue addressed in the decision is procedural in nature, and the decision changed the application of an evidence rule rather than enforcement of a statute regulating conduct, it was not necessary for the Court to apply the three-part test for formal abandonment of a prior decision set forth in Westfield Insurance v. Galatis (2003).
Justice O’Connor’s opinion was joined by Justices Evelyn Lundberg Stratton, Terrence O’Donnell and Robert R. Cupp.
Chief Justice Thomas J. Moyer and Justice Judith Ann Lanzinger entered separate dissenting opinions.
In her dissent, which was joined by Justice Paul E. Pfeifer, Justice Lanzinger disputed the majority’s assertion that this Court failed to cite “any authority” for its holding in Said that a child must be examined and found competent before his or her statements regarding alleged abuse are admissible as hearsay. She wrote that the Said court based its holding on Evid.R. 601, which states that a child under the age of 10 is presumed not competent to testify unless the court has made specific findings regarding the child’s ability to “receive just impressions” of events and to “relate them truly.”
While the majority cites the absence of a competency requirement in the language of Evid.R. 807(A), Justice Lanzinger responded that when the hearsay exception for statements alleging child abuse was enacted in 1991, the legislature did not include a waiver of competency in the express language of that rule, and made no change in the language of Evid.R. 601 to waive a requirement of competency in child abuse cases. She wrote: “Competence is an issue separate from any hearsay exception. ... 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.’ ... 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. These are good policy arguments. But Evid.R. 601 still speaks of the presumed incompetence of a child under ten. ... 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.”
With regard to the majority’s discussion of the three-part Galatis test for abandoning a prior decision, Justice Lanzinger wrote that she would not apply that test to criminal cases because the Galatis rules “were created in the context of substantive civil rather than criminal law.”
In his dissent, Chief Justice Moyer concurred with Justice Lanzinger’s conclusion that Said remains good law and that Evid.R. 807 does not eliminate the requirement of a competency finding before a court may admit hearsay testimony about a child’s statements alleging abuse. He disagreed, however with both the majority’s and Justice Lanzinger’s justifications for not applying the Galatis test in this case.
“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,” wrote Chief Justice Moyer. “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 rather than a substantive rule of law and there are no reliance interests at stake. ... 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.”
Contacts
R. Lynne Nothstine, 937.225.5757, for the state and Montgomery County prosecutor’s office.
Michael T. Columbus, 937.228.0894, for Doron Silverman.