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The law allows certain people to refuse to testify in certain situations. The law also makes certain requirements of those wishing to testify, not all of which the person to testify can meet. As witnesses go from unfriendly to friendly or vice versa, those privileges against testifying and foundational requirements for testimony can become important.
DV charges sometimes arise out of a scene of mutual combat. Perhaps a man gets angry and throws hot coffee onto his wife. The coffee isn’t enough to seriously burn her, but it could certainly have caused sufficient discomfort for a conviction under R.C. 2919.25(A). But perhaps the wife responds by throwing her empty coffee cup at her husband and it breaks when it hits him and this results in a laceration on his forehead. Their 12 year old child calls the police and says her Daddy is hurt.
While the husband may be very angry at the wife and relishing talking to the police, he realizes that he is not blameless in this incident, and his action of throwing hot coffee on his wife, if he testifies to it at trial, could be enough to convict him of a violation of 2919.25(A). As such, when the prosecutor asks him on the stand how it all started, he might be smart to refuse to testify under his privilege against self-incrimination as set out in the Fifth Amendment to the United States Constitution.
Ohio Revised Code Section 2317.02(D) restricts spouses from testifying against each other in certain situations and states as follows:
R.C. 2317.02 The following persons shall not testify in certain respects:…
(D) Husband or wife, concerning any communication made by one to the other, or an act done by either in the presence of the other, during coverture, unless the communication was made, or act done, in the known presence or hearing of a third person competent to be a witness; and such rule is the same if the marital relation has ceased to exist;….
In criminal cases, assertions of privilege are covered by R.C. 2945.42.
The right to invoke the spousal privilege, where it exists, belongs to the nontestifying spouse. Perez at 112. To be privileged, however, the communication at issue must be "confidential." State v. Rahman, 23 Ohio St.3d 146, 149, 23 Ohio B. 315, 492 N.E.2d 401 (1986). In assessing whether a communication was confidential, courts look to the language used, the nature of the message, the circumstances under which it was delivered, and other relevant facts. Bryant, supra, at 22; Portsmouth v. Wrage, 4th Dist. No. 08CA3237, 2009 Ohio 3390, 21; State v. Jackson, 12th Dist. No. CA2011-01-001, 2011 Ohio 5593, 30.
[P19] Verbal threats and violent acts between spouses are not marital "confidences" which the privilege was intended to shield from courtroom disclosure. The ostensible purpose of the privilege, in protecting intimate exchanges, is to promote "marital peace and harmony." Mowery at 198. But as Ohio courts have long recognized, that purpose is wholly lost where one spouse has threatened or physically assaulted the other. See Bryant at 21-22 and Wrage at 21, both citing State v. Antill, 176 Ohio St. 61, 64, 197 N.E.2d 548 (1964). Such threatening or turbulent behavior is incompatible with the traditional premise of inter-spousal harmony out of which the confidences of marriage are imagined to flow. Antill at 64; see also Mowery at 198-199.
[P20] Furthermore, while R.C. 2945.42 lists several crimes as exceptions to the privilege, we have held, in construing the privilege narrowly, that this list is nonexhaustive. Bryant (kidnapping); see also State v. VanHoy, 2000 Ohio 1893, 2000 WL 799096 (2000) (telephone harassment); State v. Jackson, supra (intimidation of a witness); State v. Purvis, 9th Dist. No. 05CA53-M, 2006 Ohio 1555, 8 (kidnapping); State v. Buttrom, 1st Dist. No. C-970406, 1998 Ohio App. LEXIS 5915, 1998 WL 852558 (Dec. 11, 1998) (arson prosecution—"The legislature did not so limit the [statutory privilege] even though it could easily have done so."). State v. Greaves, 2012-Ohio-1989 at Paragraphs 18-20.
But there are exceptions to this privilege, and they occur, not surprisingly, in the context of domestic violence charges. This is because this privilege deals with exchanges of marital confidences. Married couples have an interest in keeping their private confidences made within the marriage from the prying eyes of the public. But in a domestic violence situation, you cannot make the case that abusing your spouse is a marital confidence.
Another privilege comes to us through the Ohio Rules of Evidence Rule 601 general rule of competency. Every person is competent to be a witness except:
(A) Those of unsound mind, and children under ten years of age, who appear incapable of receiving just impressions of the facts and transactions respecting which they are examined, or of relating them truly.
"Competency under Evid.R. 601(A) contemplates several characteristics. State v. Frazier (1991), 61 Ohio St.3d 247, 251, 574 N.E.2d 483, certiorari denied (1992), 503 U.S. 941, 117 L. Ed. 2d 629, 112 S. Ct. 1488. Those characteristics can be broken down into three elements. First, the individual must have the ability to receive accurate impressions of fact. Second, the individual must be able to accurately recollect those impressions. Third, the individual must be able to relate those impressions truthfully. See, generally, 2 Wigmore on Evidence (Chadbourn Rev.1979) 712-713, Section 506." State v. Said (1994), 71 Ohio St.3d 473, 476, 1994 Ohio 402, 644 N.E.2d 337.
In State v. Branch, 2013-Ohio-3192, Ohio’s Third District Court of Appeals addressed this issue with regard to a seven year old who testified before the trial court in a criminal case and gave five factors for lower courts to use in analyzing this question:
Under Evid.R. 601(A)'s plain terms, "the competency of individuals ten years or older is presumed, while the competency of those under ten must be established" by the proponent of the witness's testimony. State v. Clark, 71 Ohio St.3d 466, 469, 1994 Ohio 43, 644 N.E.2d 331 (1994). Regardless of the child witness's age, "[t]he rule favors competency." Turner v. Turner, 67 Ohio St.3d 337, 343, 1993 Ohio 176, 617 N.E.2d 1123 (1993). In determining whether a child is competent to testify under Evid.R. 601(A), a trial court must consider the following factors: "(1) the child's ability to receive accurate impressions of fact or to observe acts about which he or she will testify, (2) the child's ability to recollect those impressions or observations, (3) the child's ability to communicate what was observed, (4) the child's understanding of truth and falsity, and (5) the child's appreciation of his or her responsibility to be truthful." State v. Brock, 3d Dist. No. 5-07-42, 2008-Ohio-3220, 51, quoting Frazier at 251. Branch at Paragraph 79.
So it is clear that someone under seven can testify if it is shown that this person can meet the standard required by Evid. R. 601.
The Third District Court of Appeals in Branch also applied the facts of that case to the law and showed how it came to its decision that the trial court did not err in allowing the seven year old to testify:
Here, during the trial court's interview of S.B., she indicated that she knew her address, her school, her church, how to read and write, and the names of her school teachers. She also said that she knew the difference between truthful statements and lies and that she would not lie even if someone asked her to do so. Moreover, S.B. correctly identified truthful statements and untruthful statements. Even more critically, S.B. articulated her knowledge that she had to tell the truth at trial and that she would get into trouble if she lied. In light of this evidence, we are unable to find that the trial court's ruling is unsupported by the record or amounts to an abuse of discretion. See State v. Petaway, 3d Dist. No. 8-08-22, 2009-Ohio-1304, 29-31 (finding that children were competent to testify at trial where they indicated their knowledge of the distinction between truthful statements and lies, the possibility of punishment for lying, and the importance of testifying truthfully at trial). Branch at Paragraph 80.
But there are limits to how far a trial court can go in accepting the testimony of children under 10 years of age. In the case of In re Joshua R.C., 2003-Ohio-6752, Ohio’s Sixth District Court of Appeals the Trial Court allowed a four year old to testify. But the Sixth District Court of Appeals reversed this decision, holding that:
When the court questioned Adriana during the competency voir dire, she sometimes answered directly. More often, however, her answers were either non-responsive or totally unconnected to the subject matter of the question being asked. While Adriana's answers to some questions may have, on the surface, shown some level of understanding of the importance of her telling the truth, her inability to remain focused on the matters being discussed indicated that she had difficulty recalling and communicating her impressions. When asked a question, Adrianna might answer but would then be unable to follow the thought through on the next question. More often than not, she answered a question by asking a question or making a comment which was totally unrelated to the court's questions. The court would then have to re-focus her, often going through a long drawn-out conversation before finally getting back to the original question asked.
In addition, when questioned as to whether she knew the difference between a truth and a lie, she said, "I usually tell lies, but I don't tell most of the time." She then responded to further questions and indicated that telling a lie was "a bad thing" and that she might be in trouble if she told a lie. However, later in her testimony, she reiterated that, "I said I, well, I usually said I usually don't tell lies and I usually tell lies." Still later, Adriana states that sometimes she gets punished by her mother when she tells a lie, but it is "a pretend that your punishing in the chair and you sit down in the chair and stay there until your mother tells you to get up." Finally, when trying to determine when and who had allegedly perpetrated any type of inappropriate touching, Adriana's answers bounce back and forth between whether Savannah did it first or Joshua, or some other individual, whether the events occurred together, and whether the events occurred on the same or different days. Indeed, it appears that the court requestioned Adriana until it got the answer it was looking for.
The court, in determining that Adrianna was competent to testify, stated that " she "presented herself today, a four-year-old child. Judging her level of competence in relation to her age, I do find that she has an ability to record accurate impressions, the ability to recollect those impressions. " (Emphasis added.) The court again stated, when finding appellant delinquent, that it found Adriana to be a "normal four-year-old child. *** I was, basically, impressed with her ability, given the age of four, to recall events, to make observations, to relate those observations, and also her ability to understand the importance of being truthful to this court." The court went on to conclude that, despite her confusion about other people who had allegedly done the same thing to her, it believed the act had occurred with Joshua.
While we agree that Adriana's responses and impressions were typical for a four-year-old, this level does not meet the required threshold for competency. Indeed, a child of two may respond typically and be able to make statements which are understandable and appropriate for his age, and yet not meet the requirements for competency. In our view, HN9 the standard is whether a child can relate those impressions and communicate consistently and accurately, per the criteria as set forth in Frazier, supra. In the present case, after reviewing the entire transcript, we conclude that the evidence does not support a finding of competency. Therefore, we conclude that the trial court erred in finding that Adriana was competent to testify.
Accordingly, appellant's first assignment of error is well-taken. In Re Joshua, Paragraphs 171 to 175.
Also, if a child gets too upset when he or she attempts to testify, then this too can render the child incompetent to testify under Evid. R. 601. But this is not an additional factor from the five Frazier factors listed above. Rather , it fits into those factors:
Mrs. Rizer contends that the trial court abused its discretion when it found R.C. incompetent to testify because the court failed to consider the Frazier factors and "made up a new test" for competency — "whether or not a witness would be saddened by having to testify." (Appellant's Br. 17). However, HN7 a trial court is not required to make express findings on the Frazier factors. Schulte v. Schulte, 71 Ohio St.3d 41, 43, 1994 Ohio 459, 641 N.E.2d 719. "Such a requirement would unduly burden our trial courts with unnecessary formality. Instead, the trial court is merely required to consider the Frazier factors while making the competency determination." Id. R.C.'s testimony gives some indication of her general ability to receive and recollect accurate impressions of fact or observations and her ability to understand truth and falsity and appreciate her responsibility to be truthful. And contrary to Mrs. Rizer's assertion, the record does not support a finding that the trial court simply found the child incompetent to testify because she was "sad." Instead, the trial court's comments reflect the court's conclusion that the child was unable to communicate about the relevant subject matter (her grandparents), i.e. the third Frazier factor.
During questioning, R.C. began to cry after she identified Mrs. Rizer in the courtroom and needed a recess to compose herself. When questioned about whether her mother told her where Mrs. Rizer had been, the child testified, "I've been, I don't really like to talk about it. And it gets me all sad." R.C. acknowledged that her mother told her "what was going on." But when asked what her mother told her, the child testified, "I don't really like to talk about it." She also testified, "It makes me get all teary-eyed." When asked whether she would "be able to talk about it when * * * in Court" the child testified, "No, I can't talk about it then it gets me all sad." Later the trial judge asked the child: "Are you going to be able to tell whether you're, are you going to be able to tell about what happened in the, I don't know why, what's she going to testify. Are you going to be willing to talk about your grandpa and your grandma without crying?" R.C. testified, "I think." But when defense counsel asked the child if she could promise him that she would "try to do the best to say what happened" the child said she could not promise. R.C. testified, "I can't, I can't, I can trust you but I just can't talk about it. It makes me sad." State v. Rizer, 2011-Ohio-5702 Paragraphs 21-22.
Preventing certain evidence and testimony from being seen or heard by the court is crucial in a domestic violence case. However, only an experienced trial attorney will know how to effectively exclude this evidence.
Brian Joslyn of the Joslyn Law Firm is a knowledgeable and experienced attorney with years of complex criminal trial experience. He and the team of attorneys at Joslyn Law Firm will use their combined experienced to provide a competent defense on your behalf.
Contact the the Joslyn Law Firm at (614) 444-1900 or send an online message to schedule a free consultation.
Brian Joslyn represents individuals with domestic violence charges through Ohio, including Delaware County and the surrounding counties, including Pickaway County, Madison County, Franklin County, Licking County and Fairfield County.