Even though Defendant's criminal defense lawyer did not object and Defendant's criminal defense lawyer on appeal did not raise the issue, Ohio's Eighth District Court of Appeals reversed Defendant's conviction for multiple sex offenses against two nieces because Defendant's wife was not competent to testify against him pursuant to Evidence Rule 601(B) as you can read by clicking here.
Evidence Rule 601 lists those that are not competent to testify as witnesses in court. Pursuant to Evidence Rule 601(B)(2), a spouse is not competent to testify against their spouse when the crime is against someone other than the spouse or their child and the testifying spouse does not elect to testify. The Ohio Supreme Court has stated in State v. Brown, 2007-Ohio-4837, and State v. Adamson, 1995-Ohio-199, that the trial court must instruct the testifying spouse about "spousal competency" and make a finding on the record that the testifying spouse has "elected" to testify. Failure to do so is reversible error.
