The proponent of the statement has not established that the child's testimony or attendance is not reasonably obtainable if the child's refusal, claim of lack of memory, inability, or absence is due to the procurement or wrongdoing of the proponent of the statement for the purpose of preventing the child from attending or testifying.
Ohio. R. Evid. 807
Staff Notes (July 1, 2018 Amendment)
The Rule has been amended to substitute terms defined in the Revised Code for previously undefined terms. As enacted in 1991, the Rule applied to situations involving either a "sexual act" or "physical violence." By substituting the term "sexual activity" for "sexual act," the Rule uses a term defined in R.C. 2907.01(C). Similarly, by substituting the term "physical harm directed against the child's person" for "physical violence," the Rule uses a term defined in R.C. 2901.01(A)(5). As used in the Rule, these terms should be interpreted consistently with their statutory definitions. As amended, the Rule also explicitly includes attempted sexual activity and attempted acts of physical harm as falling under the purview of the hearsay exception.
It should also be noted that the original Staff Note's reference to the Rule being a codification of the Sixth Amendment's Confrontation Clause is no longer accurate. At the time of enactment, the Rule did reflect the Confrontation Clause's test of reliability set forth by the United States Supreme Court in Idaho v. Wright, 497 U.S. 805, 110 S.Ct. 3139, 111 L.Ed.2d 638 (1990). At that time, the Supreme Court viewed the Confrontation Clause as a test of reliability derived from the circumstances surrounding the out-of-court statement. More recent United States Supreme Court jurisprudence, beginning with Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), focuses largely on (1) whether the statement is testimonial in nature; and, (2) if so, whether it was either subject to cross-examination or whether it was an out- of-court statement that, at the time the Sixth Amendment was enacted, was traditionally admitted without benefit of cross-examination.
While Idaho v. Wright no longer reflects the ongoing Confrontation Clause jurisprudence, Wright's reliability analysis nonetheless remains an appropriate guide for Evid. R. 807's function as a hearsay exception.
Of course, in criminal cases, compliance with Sixth Amendment Confrontation Clause requirements and Ohio's corresponding constitutional requirements, Article I, Sec. 10, is necessary in addition to compliance with Evid. R. 807.
Staff Note (July 1, 1991 Amendment)
Evid. R. 807 Hearsay Exceptions; Child Statements in Abuse Cases
The rule recognizes a hearsay exception for the statements of children in abuse situations. This exception is in addition to the exceptions enumerated in Evid. R. 803 and 804.
Many other jurisdictions have adopted child abuse hearsay exceptions. See generally Ringland, They Must Not Speak a Useless Word: The Case for a Children's Hearsay Exception for Ohio (1987), 14 Ohio N.U.L. Rev. 213. The Supreme Court in State v. Boston (1989), 46 Ohio St.3d 108, 545 N.E.2d 1220, asked the Rules Advisory Committee to review the subject. See also R.C. 2151.35(F).
Evid. R. 807(A) establishes four requirements for admission: (1) the statement must be trustworthy, (2) the child's testimony must be unavailable, (3) independent proof of the act must exist, and (4) the proponent must notify all other parties ten days before trial that such a statement will be offered in evidence. In addition, there are age and subject matter requirements: the child must be under 12 and the statement must relate to an act of sexual abuse or physical violence.
Rule 807(A)(1) Trustworthiness
Evid. R. 807(A)(1) codified the confrontation requirements specified by the United States Supreme Court in Idaho v. Wright (1990), 497 U.S. 805, 110 S.Ct. 3139, 111 L.Ed.2d 638. In Wright, the Court ruled that a child's statement admitted under a residual hearsay exception violated the Sixth Amendment where there were insufficient particularized guarantees of trustworthiness surrounding the making of the statement.
In determining trustworthiness, the Court adopted a "totality of the circumstances approach" and mentioned a number of factors: spontaneity and consistent repetition, mental state of the child, lack of motive to fabricate, and use of terminology unexpected of a child of similar age. These factors, as well as others, are specified in division (A)(1). The phrase "means by which the statement was elicited" concerns whether the statement was elicited by leading questions or after repeated promptings. Moreover, the time lapse between the act and the statement also is relevant in determining trustworthiness. The list of factors specified is not exhaustive. Additional factors, such as whether the statement was videotaped or whether the parents were involved in divorce or custody proceedings at the time the statement was made, may be relevant.
The last sentence of division (A)(1) provides that independent proof or corroboration of the statement is not a permissible factor in determining the trustworthiness of the statement. In Wright, the Supreme Court wrote: "the relevant circumstances include only those that surround the making of the statement and that render the declarant particularly worthy of belief." Under this approach, corroboration of the statement by independent evidence cannot be used to determine trustworthiness. The independent proof requirement in division (A)(3) is discussed below.
Rule 807(A)(2) and (B) Testimony not obtainable
Evid. R. 807(A)(2) requires the court to find that the child's testimony is not reasonably obtainable. Evid.R. 807(B) defines three circumstances that would satisfy this requirement. These circumstances are comparable to the unavailability requirements of Evid. R. 804(A); they have been modified to apply better to a child declarant. For example, a court would not have to specifically order the child to testify (as required for an adult under Evid. R. 804(A)(2)), provided the record clearly established a persistent refusal to testify.
In addition, a child who persisted in refusing to testify in a courtroom might be willing to testify via closed circuit television. See R.C. 2907.41; Maryland v. Craig (1990), 497 U.S. 836, 110 S.Ct. 3157, 111 L.Ed.2d 666. In such a circumstance, the child's testimony would be obtainable, albeit by closed-circuit television, and thus the hearsay statement would not be admissible under this rule.
Rule 807(A)(3) Independent proof
Although, under division (A)(1) and the Wright case, independent proof cannot be used to determine the trustworthiness of a hearsay statement, independent proof is a separate and additional requirement under division (A)(3) that must exist before a statement may be held admissible. This is comparable to the independent proof requirement of the co-conspirator exception, Evid. R. 801(D)(2)(e). The rule thus goes beyond the minimum Confrontation Clause requirements prescribed in Wright, as is permitted by Wright.
"States are, of course, free, as a matter of state law, to demand corroboration of an unavailable child declarant's statements as well as other indicia of reliability before allowing the statement to be admitted into evidence." Wright at 3154 (Kennedy, J., dissenting).
Rule 807(A)(4) Notice
The pre-trial notice requirement is intended to alert opposing parties to the possible use of this exception, which in turn should trigger a request for an out-of-court hearing as required by Evid. R. 807(C).
Rule 807(C) Hearing and findings
Under Evid. R. 807(C), the admissibility determination must be made in a hearing conducted outside the presence of the jury. In addition, findings of fact supporting the court's ruling must be included in the record.