hearsay rule in Ohio

2026State v. Dever, 64 Ohio St.3d 401, 410 (1992); State v. Patton, 2022-Ohio-3350, ¶ 16 (2d Dist.), citing State v. Muttart, 2007-Ohio-5267 , ¶ 56 (applying abuse of discretion standard in finding that child’s hearsay statements were admissible under a hearsay exception).

2024Muttart at ¶ 41. {¶29} The trial court retains discretion to exclude a statement falling under this hearsay exception and in doing so, should consider “the circumstances surrounding a child victim’s statement.” Id. at ¶ 47-49; see State v. Dever, 64 Ohio St.3d 401, 410 , 596 N.E.2d 436 (1992).

2026Therefore, the statements fell within an exception to the hearsay rule and were properly admitted.4 As the statements were properly admitted and we find no error, we need not address the harmless error doctrine as raised by the parties. 4 The statements were nontestimonial and do not run afoul of the Sixth Amendment of the United States Constitution pursuant to Crawford v. Washington, 541 U.S. 36, 68 (2004).

2024To us, Smith challenges only two of the requirements for former testimony at a preliminary hearing to qualify for admission pursuant to the hearsay exception under Evid.R. 804(B)(1). {¶19} Regarding Smith’s confrontation right, the Sixth Amendment to the United States Constitution provides: “In all criminal prosecutions, the accused shall enjoy the right * * * to be confronted with the witnesses against him.” Sixth Amendment to the U.S. Constitution. “[T]his bedrock procedural guarantee applies to both federal and state prosecutions.” Crawford v. Washington, 541 U.S. 36, 42 , 124 S.Ct. 1354 ,

2024Standards of Review {¶ 29} A trial court typically has broad discretion as to the admissibility of evidence in a particular case, “so long as such discretion is exercised in line with the rules of procedure and evidence.” Rigby v. Lake Cty., 58 Ohio St.3d 269, 271 (1991). “‘On appeal, challenged hearsay is subject to de novo review under the applicable hearsay rule, rather than the more deferential review employed for discretionary rulings.’ State v. Richcreek, 196 Ohio App.3d 505 , 2011-Ohio-4686 , 964 N.E.2d 442 (6th Dist.), ¶ 32.” State v. Kanable, 2020-Ohio-4335, ¶ 19 (6th Dist.). 7.

2024Standards of Review {¶ 29} A trial court typically has broad discretion as to the admissibility of evidence in a particular case, “so long as such discretion is exercised in line with the rules of procedure and evidence.” Rigby v. Lake Cty., 58 Ohio St.3d 269, 271 (1991). “‘On appeal, challenged hearsay is subject to de novo review under the applicable hearsay rule, rather than the more deferential review employed for discretionary rulings.’ State v. Richcreek, 196 Ohio App.3d 505 , 2011-Ohio-4686 , 964 N.E.2d 442 (6th Dist.), ¶ 32.” State v. Kanable, 2020-Ohio-4335, ¶ 19 (6th Dist.). 7.

2026The Supreme Court of Ohio has established a four-part test to determine the admissibility of statements as an excited utterance: “‘Such testimony as to a statement or declaration may be admissible under an exception to the hearsay rule for spontaneous exclamations where the trial judge reasonably finds (a) that there was some occurrence startling enough to produce a nervous excitement in the declarant, which was sufficient to still his reflective faculties and thereby make his statements and declarations the unreflective and sincere expression of his actual impressions and beliefs, and thus re

2025Evid.R. 803(2) provides “[a] statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition” is not excluded by the hearsay rule. {¶42} “An out-of-court statement qualifies as an excited utterance if ‘(1) the statement was made in reaction to a startling event; (2) the statement was made under the stress of excitement caused by the event; and (3) the statement relates to the event.’” State v. Cooperstein, 2019-Ohio-4724, ¶ 86 (12th Dist.), quoting State v. Nitz, 2004-Ohio- 6478, ¶ 20 (12th Dist.). {¶43} In State

2024Further, “[a] period of unconsciousness, even an extended period, does not necessarily destroy the effect of a startling event upon the mind of the declarant for the purpose of satisfying the excited-utterance exception to the hearsay rule.” State v. Wallace, 37 Ohio St.3d 87 (1988), paragraph one of the syllabus.

2019In Wallace, somewhat notably, the 15-hour lapse between the event there and the statement had been precipitated by the assault's having rendered the child unconscious: a "period of unconsciousness, even an extended period, does not necessarily destroy the effect of a startling event upon the mind of the declarant for the purpose of satisfying the excited utterance exception to the hearsay rule." 37 Ohio St.3d at 90 . {¶ 121} Wallace, like the 8th District Court of Appeal's Wagner opinion invoked by the majority here, cited to State v. Duncan, 53 Ohio St.2d 215 (1978).

2025"The excited utterance exception to the hearsay rule exists because excited utterances are the product of reactive rather than reflective thinking and, thus, are believed inherently reliable." State v. Ducey, 2004-Ohio-3833, ¶ 17 (10th Dist.); State v. Hopkins, 2018-Ohio-1864, ¶ 36 (2d Dist.); State v. Akers, 2021-Ohio-2562, ¶ 13 (5th Dist.) (noting that the rule protects statements or declarations that are spontaneous and unreflective); State v. Duncan, 53 Ohio St.2d 215 (1978).

2021Indeed, "[t]he Supreme Court of Ohio has emphasized '* * * an appellate court should allow a wide discretion in the trial court to determine whether in fact a declarant was at the time of an offered statement still under the influence of an exciting event.' " Manzell at ¶ 13, quoting State v. Duncan, 53 Ohio St.2d 215, 219 (1978). {¶ 39} The four prongs of Taylor having been met, we conclude that the trial court did not abuse its discretion in admitting into evidence the hearsay testimony of M.-W. under the excited utterance exception to the hearsay rule. {¶ 40} Next, we consider appellant's c

2025State v. Muttart, 116 Ohio St. 3d 5 , 2007-Ohio-5267 , 875 N.E.2d 944, ¶ 46 (regardless of whether a child less than ten years old has been determined to be competent to testify, the child’s statements may be admitted at trial as an exception to the hearsay rule if they were made for purposes of medical diagnosis or treatment); State v. Goza, 8th Dist.

2025State v. Muttart, 116 Ohio St. 3d 5 , 2007-Ohio-5267 , 875 N.E.2d 944, ¶ 46 (regardless of whether a child less than ten years old has been determined to be competent to testify, the child’s statements may be admitted at trial as an exception to the hearsay rule if they were made for purposes of medical diagnosis or treatment); State v. Goza, 8th Dist.

2019Accordingly, the Supreme Court has determined "the excited utterance exception to the hearsay rule should be applied liberally in a case involving the sexual abuse of a young child." Moore, 2019-Ohio-1671, at ¶ 38 , citing State v. Boston, 46 Ohio St.3d 108, 118 (1989), overruled in part on other grounds in State v. Muttart, 116 Ohio St.3d 5 , 2007- Ohio-5267.

2016Id. {¶66} In State v. Taylor, the Ohio Supreme Court addressed directly the timeliness requirement for a statement to be admissible pursuant to the excited utterance exception to the hearsay rule.

2023Licking County, Case No. 2022 CA 00047 11 {¶33} 911 calls are generally nontestimonial and are admissible if the statements contained therein satisfy a hearsay exception. {¶34} As the United States Supreme Court observed in Davis v. Washington, 547 U.S. 813 , 126 S.Ct. 2266 , 165 L.Ed.2d 224 (2006), in the case of 911 calls, the declarants are generally “speaking about events as they [are] actually happening” and that “[a]lthough one might call 911 to provide a narrative report of a crime absent any imminent danger,” 911 callers are typically facing ongoing emergencies.

2023Licking County, Case No. 2022 CA 00047 11 {¶33} 911 calls are generally nontestimonial and are admissible if the statements contained therein satisfy a hearsay exception. {¶34} As the United States Supreme Court observed in Davis v. Washington, 547 U.S. 813 , 126 S.Ct. 2266 , 165 L.Ed.2d 224 (2006), in the case of 911 calls, the declarants are generally “speaking about events as they [are] actually happening” and that “[a]lthough one might call 911 to provide a narrative report of a crime absent any imminent danger,” 911 callers are typically facing ongoing emergencies.

2012Apanovitch held that these statements were admissible as a hearsay exception under Evid.R. 803(3), as a statement of the declarant’s “ ‘then existing state of mind, emotion, sensation, or physical condition.’ ” Id. at 21-22 , quoting Evid.R. 803(3).

2007A statement of the declarant's then existing state of mind, emotion, sensation, or physical condition (such as intent, plan, motive, design, mental feeling, pain, and bodily health), but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the execution, revocation, identification, or terms of declarant's will." {¶ 26} In State v. Apanovitch (1987), 33 Ohio St.3d 19 , the Ohio Supreme Court held evidence a victim had a fearful state of mind was admissible as a hearsay exception under Evid.R. 803(3) as a statement of "then existing state of

2020Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 , 450 N.E.2d 1140 (1983). {¶ 13} A LEADS report is admissible under the public records exception to the hearsay rule, pursuant to Evid.R. 803(8)(a).

2020Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 , 450 N.E.2d 1140 (1983). {¶ 13} A LEADS report is admissible under the public records exception to the hearsay rule, pursuant to Evid.R. 803(8)(a).

2005Blakemore v. Blakemore (1983), 5 Ohio St.3d 217 . {¶ 8} In State v. Cook (1998), 83 Ohio St.3d 404 , the Ohio Supreme Court held the Rules of Evidence do not strictly apply to sexual predator determination hearings: {¶ 9} "Evid.R. 101(C) excepts application of the Rules of Evidence, including the hearsay rule, from certain proceedings, such as miscellaneous criminal proceedings.

2002Furthermore, in State v. Cook (1998), 83 Ohio St.3d 404 , 425 , the Supreme Court of Ohio held the following: Evid.R. 101(C) excepts application of the Rules of Evidence, including the hearsay rule, from certain proceedings, such as miscellaneous criminal proceedings.

2018State v. Sage, 31 Ohio St.3d 173, 180 , 510 N.E.2d 343 (1987). {¶36} Appellant contends, as his third assignment of error, that the admission into evidence of the statements made by A.B. to social worker Penny Daly was erroneous because the statements were not made for the purpose of medical diagnosis or treatment. {¶37} The Supreme Court of Ohio held that “[r]egardless of whether a child less than ten years old has been determined to be competent to testify pursuant to **947 Evid.R. 601, the child's statements may be admitted at trial as an exception to the hearsay rule pursuant to Evid.R. 80

2018State v. Sage, 31 Ohio St.3d 173, 180 , 510 N.E.2d 343 (1987). {¶36} Appellant contends, as his third assignment of error, that the admission into evidence of the statements made by A.B. to social worker Penny Daly was erroneous because the statements were not made for the purpose of medical diagnosis or treatment. {¶37} The Supreme Court of Ohio held that “[r]egardless of whether a child less than ten years old has been determined to be competent to testify pursuant to **947 Evid.R. 601, the child's statements may be admitted at trial as an exception to the hearsay rule pursuant to Evid.R. 80

2019But the federal high court "has drifted away from that requirement," Storch opined, id., to the point (in the characterization of the Supreme Court of Ohio) where "[i]f the [hearsay] statement falls within one of the well-established exceptions to the hearsay rule [such as 'spontaneous declaration' and 'medical examination' exceptions there at issue], no [federal] right to confrontation with the declarant exists," id. at 290, citing White v. Illinois, 502 U.S. 346 (1992). {¶ 103} That is not the rule under Ohio's Constitution, Storch said. " '[T]he admission into evidence of a hearsay statemen

2007The Ohio Supreme Court upheld the trial court's decision and stated that, "regardless of whether a child less than ten years old has been determined to be competent to testify pursuant to Evid.R. 601, the child's statements may be admitted at trial as an exception to the hearsay rule pursuant to Evid.R. 803(4) if they were made for purposes of medical diagnosis or treatment." Muttart at ¶ 46 , citing Ferrell v. Ferrell (Mar. 14, 1986), Huron App. No. H-84-39. {¶ 31} The Ohio Supreme Court explained that: * * * [A] fundamental assumption underlying the medical-treatment exception is that that p

2008Therefore, I agree with the majority’s holding that the Evid.R. 804(B)(3) corroboration requirement is constitutional, but I would remand the cause for retrial with instructions to admit Carlisle’s confession. {¶ 35} A statement against interest tending to expose the declarant to criminal liability will not be admitted unless “corroborating circumstances clearly indicate the trustworthiness of the statement.” Evid.R. 804(B)(3); see also State v. Gilliam (1994), 70 Ohio St.3d 17 , 635 N.E.2d 1242 . 2 “The determination of whether corroborating circumstances are sufficient to admit statements ag

2008Therefore, I agree with the majority’s holding that the Evid.R. 804(B)(3) corroboration requirement is constitutional, but I would remand the cause for retrial with instructions to admit Carlisle’s confession. {¶ 35} A statement against interest tending to expose the declarant to criminal liability will not be admitted unless “corroborating circumstances clearly indicate the trustworthiness of the statement.” Evid.R. 804(B)(3); see also State v. Gilliam (1994), 70 Ohio St.3d 17 , 635 N.E.2d 1242 . 2 “The determination of whether corroborating circumstances are sufficient to admit statements ag

2002The truth finding function of the Confrontation Clause is uniquely threatened when an accomplice's confession is sought to be introduced against a criminal defendant without the benefit of cross-examination." Id. at 132 . {¶ 18} This court agrees that where an accomplice's statement implicates the defendant, it is presumptively self-serving, unreliable and not within any firmly-rooted exceptions to the hearsay rule.

2002The truth finding function of the Confrontation Clause is uniquely threatened when an accomplice's confession is sought to be introduced against a criminal defendant without the benefit of cross-examination." Id. at 132 . {¶ 18} This Court agrees that where an accomplice's statement implicates the defendant, it is presumptively self-serving, unreliable and not within any firmly-rooted exceptions to the hearsay rule.

2026In this respect, a forensic interview “serves dual purposes: (1) to gather forensic information to investigate and potentially prosecute a defendant for the offense and (2) to elicit information necessary for medical diagnosis and treatment of the victim.” Id. {¶ 107} Evid.R. 803(4) provides “a hearsay exception for ‘[s]tatements made for purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatmen

2024He quotes law stating where the primary purpose of particular statements by a child to interviewers at CAC were for medical diagnosis and treatment, those statements were nontestimonial and admissible without violating confrontation rights but other statements that served “primarily a forensic or investigative purpose are testimonial and are inadmissible pursuant to the Confrontation Clause when the declarant is unavailable for cross-examination at trial.” State v. Arnold, 126 Ohio St.3d 290 , 2010-Ohio-2742 , 933 N.E.2d 775 , ¶ 44 (application of the hearsay exception was not raised). {¶51} A

2026See also State v. Dotson, 2019- Ohio-2393, ¶ 49 (11th Dist.) (“A trial court’s ruling on a hearsay objection is . . . reviewed de novo”); State v. Richcreek, 2011-Ohio-4686, ¶ 32 (6th Dist.) (“On appeal, challenged hearsay is subject to de novo review under the applicable hearsay rule, rather than the more deferential review employed for discretionary rulings”); State v. Sorrels, 71 Ohio App.3d 162, 165 (1st Dist. 1991) (“Since Evid.R. 802 specifically provides that ‘hearsay is not admissible,’ the trial court’s decision to admit hearsay is not governed by the test of abuse of discretion”). {¶

2025See id. (“The following are not excluded by the hearsay rule, even though the declarant is available as a witness”).

2007Under Evid.R. 804(A)(5), a witness is unavailable if he “is absent from the hearing and the proponent of the declarant’s statement has been unable to procure the declarant’s attendance (or in the case of a hearsay exception under division (B)(2), (3), or (4) of this rule, the declarant’s attendance or testimony) by process or other reasonable means.” “A witness is not considered unavailable unless the prosecution has made reasonable efforts in good faith to secure his presence at trial.” State v. Keairns (1984), 9 Ohio St.3d 228, 230 , 9 OBR 569, 460 N.E.2d 245 ; Barber, 390 U.S. at 724-725 ,

2007Under Evid.R. 804(A)(5), a witness is unavailable if he “is absent from the hearing and the proponent of the declarant’s statement has been unable to procure the declarant’s attendance (or in the case of a hearsay exception under division (B)(2), (3), or (4) of this rule, the declarant’s attendance or testimony) by process or other reasonable means.” “A witness is not considered unavailable unless the prosecution has made reasonable efforts in good faith to secure his presence at trial.” State v. Keairns (1984), 9 Ohio St.3d 228, 230 , 9 OBR 569, 460 N.E.2d 245 ; Barber, 390 U.S. at 724-725 ,

2022If we find that the statement falls "within a firmly rooted hearsay exception" or bears adequate indicia of reliability, an out-of-court statement may be admissible even when Fairfield County, Case No. 2021 CA 00032 14 the declarant is unavailable for cross-examination Ohio v. Roberts, 448 U.S. 56, 66 , 100 S.Ct. 2531 , 65 L.Ed.2d 597 (1980). {¶ 44} Statements made by Lamp to his mother were admitted at trial as excited utterances and appellant does not challenge the admission of these statements. {¶ 45} Evid.R. 803(2) provides, "statement[s] relating to a startling event or condition made whi

2022If we find that the statement falls "within a firmly rooted hearsay exception" or bears adequate indicia of reliability, an out-of-court statement may be admissible even when Fairfield County, Case No. 2021 CA 00032 14 the declarant is unavailable for cross-examination Ohio v. Roberts, 448 U.S. 56, 66 , 100 S.Ct. 2531 , 65 L.Ed.2d 597 (1980). {¶ 44} Statements made by Lamp to his mother were admitted at trial as excited utterances and appellant does not challenge the admission of these statements. {¶ 45} Evid.R. 803(2) provides, "statement[s] relating to a startling event or condition made whi

2023State v. McKelton, 148 Ohio St.3d 261 , 2016-Ohio-5735 , 70 N.E.3d 508, ¶ 97 (hearsay rulings ordinarily reviewed for abuse-of-discretion unless Athens App. No. 21CA15 26 constitutional rights implicated under Confrontation Clause); State v. Dever, 64 Ohio St.3d 401, 410 , 596 N.E.2d 436 (1992) (“trial court has broad discretion to determine whether a declaration should be admissible as a hearsay exception”).

2023State v. McKelton, 148 Ohio St.3d 261 , 2016-Ohio-5735 , 70 N.E.3d 508, ¶ 97 (hearsay rulings ordinarily reviewed for abuse-of-discretion unless Athens App. No. 21CA15 26 constitutional rights implicated under Confrontation Clause); State v. Dever, 64 Ohio St.3d 401, 410 , 596 N.E.2d 436 (1992) (“trial court has broad discretion to determine whether a declaration should be admissible as a hearsay exception”).

2020In support, appellant cites Chambers v. Mississippi, 410 U.S. 284 (1973), Green v. Georgia, 442 U.S. 95 (1979), and Holmes v. South Carolina, 547 U.S. 319 (2006). {¶ 83} In Chambers, the United States Supreme Court determined the exclusion of an oral confession by a third party denied the accused the right to a fair trial, holding in part that "the hearsay rule may not be applied mechanistically to defeat the ends of justice." Chambers at 302 .

2014Instead, Chambers based its reversal on the fact that exculpatory evidence was also excluded on hearsay grounds, when the evidence had “persuasive assurances 16 of trustworthiness.” Chambers, 410 U.S. at 302 , 93 S.Ct. 1038 , 35 L.Ed.2d 297 . {¶ 43} Chambers and Evid.R. 804(B)(3), which provides a hearsay exception for statements against interest, “have the same indicia of trustworthiness.” Arnold, 2d Dist.

2023Evid.R. 801(C); State v. Maurer, 15 Ohio St.3d 239, 262 , 473 N.E.2d 768 (1984) (explaining that the first step in a hearsay analysis is to determine whether the evidence contains an out-of-court statement).

2023Evid.R. 801(C); State v. Maurer, 15 Ohio St.3d 239, 262 , 473 N.E.2d 768 (1984) (explaining that the first step in a hearsay analysis is to determine whether the evidence contains an out-of-court statement).

2023Crawford v. Washington, 541 U.S. 36, at 59, fn. 9 , 124 S.Ct. 1354 , 158 L.Ed.2d 177 (2004); California v. Green, 399 U.S. 149, 162 , 90 S.Ct. 1930 , 26 L.Ed.2d 489 (1970); State v. Perez, 124 Ohio St.3d 112 , 2009-Ohio-6179 , 920 N.E.2d 104, ¶124 ; State v. Leonard, 104 Ohio St.3d 54 , 2004-Ohio-6235 , 818 N.E.2d 229 , ¶109. {¶69} Evid.R. 803(4) provides that the following are not excluded by the hearsay rule: “Statements made for purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character o

2023Crawford v. Washington, 541 U.S. 36, at 59, fn. 9 , 124 S.Ct. 1354 , 158 L.Ed.2d 177 (2004); California v. Green, 399 U.S. 149, 162 , 90 S.Ct. 1930 , 26 L.Ed.2d 489 (1970); State v. Perez, 124 Ohio St.3d 112 , 2009-Ohio-6179 , 920 N.E.2d 104, ¶124 ; State v. Leonard, 104 Ohio St.3d 54 , 2004-Ohio-6235 , 818 N.E.2d 229 , ¶109. {¶69} Evid.R. 803(4) provides that the following are not excluded by the hearsay rule: “Statements made for purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character o