Ohio Criminal Appeals Lawyer Blog

Ohio's Second District Court of Appeals reversed convictions for rape and gross sexual abuse of a child under thirteen because of hearsay and confrontation clause problems. Most interesting was the Appellate Court's interpretation of what is included in "statements for purpose of medical diagnosis or treatment."

The complainant, who did not testify at trial, received counseling from a school psychologist. The complainant first told the psychologist she had been raped, but later she told the psychologist that she had only dreamt she was raped, and finally she told the psychologist that she made up the allegations.

Whether the child was actually violated is irrelevant for legal purposes because the courts deal with "evidence" and not reality as you can read by clicking here.

The trial judge would not allow the psychologist to testify about what the victim told her because it was hearsay (an out of court statement offered for the truth of the matter asserted). The trial court determined that the statements were not made to the school psychologist "for purposes of medical diagnosis or treatment" because the psychologist was not trying to diagnose or treat the complainant. The psychologist was just "counseling" the complainant.

But in reversing the convictions and remanding for a new trial, the Second District Court of Appeals stated "[r]estricting the meaning of diagnosis or treatment in Evid.R. 803(4) in too narrow a way undercuts the function of nurses, psychologists, therapists, social workers and numerous other individuals who routinely treat victims of sexual abuse for physical, mental and emotional problems, often by counseling them." Read the full decision by clicking here.

Two Ohio convictions were reversed this week because prosecutors tried to prove their cases even when their "victims" did not show up to testify at trial. But even prosecutors have to follow the law. Hearsay is not admissible as stated in Ohio Evidence Rule 802. And the "Confrontation" Clauses of the United States and Ohio Constitutions require an accuser to come to court to make their accusations. This gives the accused the chance to cross examine them to test their claims.

Ohio's Eleventh District Court of Appeals reversed a conviction out of Portage County because the State had an officer testify about what the alleged criminal damaging victim told him. The defense lawyer objected and the trial judge characterized the defense lawyer's objection as "ludicrous." That's reassuring, isn't it? Read the case by clicking here.

Ohio's Twelfth District Court of Appeals reversed a conviction out of Butler County because the defense lawyer failed to object when a neighbor and officer gave crucial testimony about an alleged burglary. The failure to object constituted the ineffective assistance of trial counsel as you can read by clicking here.

Today the Second District Court of Appeals took a common sense approach to hearsay in two cases.

In one case (which you can read by clicking here) the defendant got into an accident with another driver. An officer testified that a person - who did not testify - corroborated the other driver's version of events. The prosecutor argued on appeal that there was no hearsay violation because the officer did not testify as to what this witness actually said - just that they corroborated the version of events of the other driver. What??? The Second District did not buy that one and wrote, "there is no substantive difference between allowing a police officer to state which of two opposing views an out-of-court witness corroborated and allowing him to recount the actual substance of an out-of-court witness's statement."

In a second case about a traffic accident (you can read by clicking here) an officer testified that based on a statement of a witness who did not testify, he was able to determine that the defendant was at fault for the accident. Here too the prosecutor argued that there was no problem because this testimony only went to show why the officer's investigation led him to ticket the defendant. But the Second District Court of Appeals determined this was hearsay too.

This interpretation of hearsay makes sense and it is always nice when the law comports with common sense.