Update: On April 20, 2016, the Supreme Court of Ohio issued a merit decision in this case. Read the analysis here.
Read the analysis of the oral argument here.
On May 20, 2015, the Supreme Court of Ohio will hear oral argument in the case of State of Ohio v. Jeffrey C. Arnold, 2014-0718. At issue in this case is whether a witness who invokes his Fifth Amendment privilege against self-incrimination can be compelled to read his previously filed statement to police, and whether allowing this statement into evidence denies the defendant the right to confront witnesses.
On March 25, 2013, officers from the Fostoria Police Department were dispatched to the Arnold family residence after Mrs. Arnold asked a neighbor to report a domestic disturbance between Jeffery Arnold (Arnold), and his father, Lester. The police, fearing the possibility of an altercation based on their previous interactions with the family, obtained high powered guns and called in the SWAT team. It was eventually discovered, however, that Arnold had fled from the house.
Lester eventually appeared before police and told them that Arnold had grabbed him, choked him, and pulled his hair. Lester’s hair was disheveled, and he appeared very scared and agitated; however there were no visible signs of physical harm. After the incident, Lester submitted a voluntary written statement explaining the incident.
At trial, however, Lester, the prosecution’s chief witness, refused to testify when asked about the altercation, invoking what he believed to be his Fifth Amendment rights, and persisted when he was informed that he had no such right and could be held in contempt of court. The State then asked Lester to read his written statement. Defense counsel objected on grounds that the witness had invoked his Fifth Amendment privilege, and was overruled. Lester’s witness statement was eventually moved into evidence by the State. In a bench trial, the trial judge found Arnold guilty of domestic violence and sentenced him to 150 days in jail. Arnold appealed the decision, arguing that Lester had been pressured to read his statement, that the trial court had convicted him with no physical evidence, and that the trial court had come to a “prejudicially foregone conclusion” to convict him.
In a split decision in which one judge in the majority concurred in judgment only, the Third District Court of Appeals affirmed the trial court’s judgment, finding no prejudice in the trial court’s conduct. The majority found that Arnold had no standing to raise a violation of the Fifth Amendment rights of a witness, and that Lester had not presented any basis to invoke his Fifth Amendment rights. The dissent would find that Lester did have an adequate basis on which to assert his Fifth Amendment privilege and the prosecution had no right to inform him that he didn’t, and further, allowing the state to continue questioning Lester and a threat of contempt by the judge under these circumstances were both improper. The appellate judges also disagreed about whether Arnold’s right to confrontation was violated in the case.
Fifth Amendment to the U.S. Constitution (“No person shall… be compelled in any criminal case to be a witness against himself…”)
Sixth Amendment to the U.S. Constitution (In all criminal prosecutions, the accused shall have the right to confront the witnesses against him.)
State v. Beebe, 2007-Ohio-3746 (4th Dist.) (A prosecuting attorney cannot advise a witness that he has no Fifth Amendment right not to incriminate himself.)
Ohio v. Reiner, 532 U.S. 17 (2001) (A witness has a Fifth Amendment privilege even though he or she may maintain innocence of wrongdoing.)
State v. Goff, 2005-Ohio-339 (9th Dist.) (A court may not admit into evidence hearsay statements of a witness who refuses to testify under the Fifth Amendment. Such an admission violates the defendant’s confrontation clause rights.)
Hoffman v. United States, 341 U.S. 479 (1951) (In making its determination about the privilege against self incrimination, the court should err on the side of finding the privilege exists; the witness should only be required to answer if it is “perfectly clear, from a careful consideration of all the circumstance in the case, that the witness is mistaken, and that the answer(s) cannot possibly have such tendency” to incriminate.)
Couch v. United States, 409 U.S. 322 (1973) (One cannot invoke the privilege against self-incrimination on behalf of a third person.)
Maness v. Meyers, 419 U.S. 449 (1975) (The privilege against self-incrimination may only be invoked when an individual reasonably believes the testimony may be used against him in a criminal prosecution.)
State v. Landrum, 53 Ohio St. 3d 107 (1990) (When a witness refuses to testify because of a concern over self-incrimination, a court must engage in a complex analysis to determine if the witness has a valid claim as to that particular testimony, because a blanket assertion is not sufficient.)
State v. Wade, 53 Ohio St. 2d 182 (1978) (Sets forth the factors to be considered in determining whether a trial judge’s remarks were prejudicial, noting that the burden of demonstrating prejudice is on the defendant.)
Arnold’s argument revolves around two key points. First, he argues that the prosecution and trial court improperly handled Lester’s testimony, by advising him that he could not invoke his Fifth Amendment rights and also by requiring Lester to read his written statement at trial after he had invoked his Fifth Amendment privilege and had testified that he didn’t remember what had happened. Second, Arnold argues that the trial court demonstrated a prejudicial bias towards him and presumed his guilt throughout the course of the trial.
Arnold argues that the prosecutor cannot advise a witness that he cannot invoke the Fifth Amendment, and the trial court erred when it denied Lester his right not to incriminate himself under the Fifth Amendment, Arnold notes that any witness may exercise the constitutional right not to incriminate himself, even though he may maintain innocence of wrongdoing. The prosecutor’s admonishment and legal conclusion to the key, and only, witness was wrong and improper, and should result in reversible error. In addition, the court improperly threatened Lester with contempt of court charges.
Arnold also argues that the trial court should not have allowed Lester to read from his witness statement, nor should the statement have been allowed into evidence. Lester had testified that he could not remember the substantive nature of what he had written in the statement, preventing Arnold from cross-examining him and therefore violating his rights under the Confrontation Clause.
Arnold argues that he was denied a fair trial, as the trial court repeatedly demonstrated that it had prejudicially presumed his guilt throughout the trial. Arnold points to the comments and conduct of the trial judge, to the judge’s response to a defense objection regarding hearsay, and the repeated ignoring of Lester’s attempts to invoke his Fifth Amendment privilege. He also notes that the trial court interrupted his closing argument on numerous occasions.
Finally, Arnold argues that the guilty verdict was against the manifest weight of the evidence. Lester, the key witness, showed no signs of being injured in any way, and had testified that he did not remember what had happened that day.
The State first disputes Arnold’s argument that the trial court violated Lester’s Fifth Amendment right against self-incrimination. The State argues that Arnold lacks standing to bring this challenge. The right to be free from self-incrimination is a personal right which cannot be invoked on behalf of a third person. Second, the State argues that Lester could not invoke the Fifth Amendment under these circumstances. A bare assertion that his testimony would be incriminating is not enough. The record suggests that Lester tried to invoke this privilege solely to help protect his son, not out of any concern for self-incrimination.
Next, the State relies on State v. Wade to argue that Arnold was given a fair trial, and was given ample opportunity to confront his accuser at trial. According to the State, none of the statements made by the trial court were objectively prejudicial, providing no basis for reversal. Further, Arnold failed to object to the statements that are now claimed to be prejudicial.
Finally, the State argues that the trial court did not deny Arnold his right to confront his accuser at trial. Since Arnold did not raise a Confrontation Clause claim during trial, the issue can now only be reviewed for plain error. Since Arnold’s counsel was able to attack Lester’s credibility as a witness, particularly his admission that he could not remember if his son had committed an act of violence against him, the State argues that Arnold had adequate opportunity to confront his father. Second, the State argues that prior testimonial statements by a witness do not violate the Confrontational Clause if the defendant has an opportunity to cross examine the witness in court.
Arnold’s Proposed Proposition of Law No. I
The trial court abused its discretion and the prosecuting attorney wrongly and improperly advised the State’s own key witness that he had no right to invoke his privilege under the Fifth Amendment to the United States Constitution, to not testify, regarding his expressed under oath statement that “I do have a right from self-incrimination under the Fifth Amendment and I do have a right to refuse to testify,” with the trial court effectually and repeatedly denying same, and otherwise advising the witness of contempt of court, thereby resulting in reversible error.
Arnold’s Proposed Proposition of Law No. II
Defendant-appellant was denied a fair trial under the Sixth and Fourteenth Amendments to the United States Constitution, by the trial court’s repeated pattern of demonstrating that it had prejudicially presumed the defendant-appellant’s guilt throughout the course of the trial, thereby resulting in reversible error.
Arnold’s Proposed Proposition of Law No. III
The trial court reversibly erred by allowing the State’s key witness to read his written statement to the police, over defense objection, into evidence at trial, thereby denying the defendant-appellant’s fundamental right to confront witnesses under the Sixth and Fourteenth Amendments to the Constitution of the United States, as the State’s key witness had already invoked his Fifth Amendment privilege and had testified that he didn’t remember what had happened, and therefore couldn’t be cross-examined or otherwise confronted about his written statement .
State’s Proposed Counter-Proposition of Law No. I
Lester Arnold had no “Fifth Amendment” rights, and Jeffery C. Arnold has no standing upon appeal to claim them.
State’s Proposed Counter-Proposition of Law No. II
The trial court afforded Jeffery C. Arnold a fair trial.
State’s Proposed Counter-Proposition of Law No. III
The trial court did not deny Jeffery C. Arnold the right to confront his accuser at trial.
Amicus In Support of Arnold
Amicus, the Ohio Association of Criminal Defense Lawyers, notes that this case presents the issue of a reluctant witness, and posits that Lester could be reluctant to testify either because he did not want his son to be convicted of the offense, or because he initiated the confrontation and wished to avoid perjuring himself or furnishing the basis for his own prosecution. The Amicus further contends that the lower courts misapplied Fifth Amendment law and the rules of evidence, and asks the court to clarify how a trial court should respond to the assertion of the Fifth Amendment privilege by a witness.
Amicus contends that, when a witness refuses to testify because of concern over self-incrimination, a court must engage in an in camera hearing to decide whether the privilege exists, and must err on the side of finding it does. In this case, the trial court made no inquiry into Lester’s reasons for invoking the privilege. Finally, the Amicus argues that the admission of Lester’s written statement was improper under the hearsay rule, and none of the exceptions apply to the statement.
Student Contributor: Michael Elliott