What’s On Their Minds: Father Tries to Take the Fifth in Domestic Violence Case Against Son. State of Ohio v. Jeffrey C. Arnold.

Update: On April 20, 2016, the Supreme Court of Ohio issued a merit decision in this case.  Read the analysis here.

“Are you not troubled by the fact that the trial court, rather than explaining the parameters of the Fifth, merely said, you’ll either testify or you will be held in contempt.  Don’t you think that falls a little short of the constitutional standard?” Justice O’Neill, to the prosecutor.

On May 20, 2015, the Supreme Court of Ohio heard 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, and prejudiced the defendant’s right to a fair trial.

Case Background

The Fostoria police responded to a domestic violence call at the Arnold family residence.  Lester Arnold, father of the alleged perpetrator Jeffrey Arnold, (Arnold) told police 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 Arnold’s bench 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 prosecutor then asked Lester to read his written statement. Defense counsel objected on the 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. 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. 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.

Read the oral argument preview of the case, which includes the key precedent involved, here.

At Oral Argument

Arguing Counsel

Gene P. Murray, Fostoria, for Appellant Jeffrey Arnold

Timothy J. Hoover, Law Director, City of Fostoria, for Appellee State of Ohio

Arnold’s Argument

The police officer who testified in the case said that when he saw Lester coming out of the garage, he saw no signs of any harm; nothing that would establish any of the elements of the offense of domestic violence.  Lester’s wife testified that she saw no signs of physical harm on Lester and that Lester has a temper and sometimes blew up like a rocket.

At Arnold’s trial, Lester invoked his Fifth Amendment rights, but the prosecutor told him he didn’t have the right to do so. Lester responded that he did have such a right. The trial judge threatened Lester with contempt for failing to answer.  When Lester invoked his Fifth Amendment rights, the trial judge should have conducted an in-camera hearing to make a particularized inquiry in connection with each area in which the privilege was invoked, but failed to do so.

When the trial court denied the privilege to Lester, and required him to read the statement he didn’t even recall writing, the defendant was prejudiced. Lester repeatedly invoked his Fifth Amendment privilege and the trial judge repeatedly denied him the right to do so.  The state used Lester’s silence in conjunction with his statements that he did not want his son in jail to imply he was refusing to testify for an illegitimate purpose.

Without Lester’s testimony and his written statement, there was simply no proof to show beyond a reasonable doubt that there was an offense committed.

State’s Argument

Even without Lester’s testimony and statement, there was sufficient evidence to convict Arnold. Lester’s wife’s testimony was that Lester was trying to de-escalate the conflict, and that he walked away and Arnold was following him. Lester’s excited utterance to the police, and his written statement provide additional evidence.

A defendant has no standing to invoke someone else’s Fifth Amendment rights. As for Lester’s attempt to invoke his own Fifth Amendment rights, it was apparent from the questions the prosecutor asked of Lester that there was no possibility that Lester could be charged with a crime or that his answers would lead to self-incrimination.  A bald assertion of Fifth Amendment rights is not enough.  There needs to be more.

Even if improperly admitted, Lester’s written statement was consistent with the fact that Lester had no fear of incriminating himself. And despite a continuing objection to Lester’s testimony, defense counsel did question and cross examine Lester, and elicited testimony that was helpful to Arnold.  It would take a long line of inferential leaps to go from the questions that were asked of Lester to the need to shut down the proceedings for an in-camera interview.

In the end, it was clear that Lester was not worried about self-incrimination—he was worried about his son getting convicted.  Substantial justice was done.   If the court accepts Arnold’s propositions of law, it would open Pandora’s box around the state, making it harder to ascertain the truth, and to pursue justice for victims.

What Was On Their Minds

Procedure When the Fifth is Invoked

The Fifth Amendment is not automatic in a court of law, noted Justice O’Neill. The person that asserts the privilege has the burden of demonstrating to the court, that if I testify, I will be incriminating myself—not someone else, correct?  (answer: yes)

Justice Lanzinger noted that the court was concerned about the procedure for other cases once a witness invokes his Fifth Amendment rights, quoting from the U.S. Supreme Court decision in Hoffman v. United States, 341 U.S. 479 (1951). Hoffman says you err on the side of finding the privilege and only if you find that standard is satisfied do you require the witness to testify, she noted. Isn’t that what we are concerned about here, the procedure that was used once the Fifth was stated, she asked, noting that the trial court didn’t follow any of what is required. In a key question of the day, she asked, once a witness makes the statement that he is invoking his Fifth Amendment rights, doesn’t the trial court have the obligation to find out if that is spurious or not? If not, there are no more questions, she noted. When the prosecutor suggested the trial court had done this, she asked where, more sharply than usual. Lanzinger later suggested that if a witness takes the Fifth, it would be a better practice for the court to stop the proceedings and have the witness talk to counsel.  The prosecutor suggested this would be impractical in his small county; she wasn’t buying that.

Justice O’Neill then followed up, telling the prosecutor that he seemed to be dismissing the suggestion that if a witness is invoking a constitutional right, the court couldn’t find five minutes to slow things down and find the witness a lawyer or have the judge explain his rights and obligations. Expediency seems to have carried the day, he noted.

Justice O’Donnell asked if this were a local or a statewide problem.

Who Was Being Incriminated Here.

The statement Lester had to read didn’t contain anything that would incriminate him, did it, asked Chief Justice O’Connor? The defendant’s Fifth Amendment rights aren’t implicated here?

Why was Lester refusing to testify, asked Justice O’Neill? Nothing in the trial incriminated him, did it? Since there was a written statement, there was no mystery about what was going to be said? Is it factually accurate on this record that the only reason for Lester invoking the privilege was to not testify against his son because Lester did not want Jeffrey charged in the first place?  So father and son get into a fight in the dining room, and the father is on the stand, and asserts his own Fifth Amendment rights? Isn’t it possible Lester could face the possibility of prosecution?

The following is a key exchange of the day:

Justice O’Donnell:

Could it not be a defense that the father had been an aggressor? And could not defense counsel have brought that out on cross examination?  So why can’t the father then assert his Fifth Amendment right, not knowing what the defense counsel may ask him?

The prosecutor:

Had those questions specifically been asked.

Justice O’Donnell:

You have to go that far?

The prosecutor:

I think so. I think the questions that were asked by the prosecutor were so mundane.

Justice O’Donnell:

It is not what the state was asking, but defense counsel that would have probed the conduct that precipitated the incident. That may or may not result in a Fifth Amendment opportunity for the father to have incriminated himself. So theoretically, why can he not assert that right, and does the court insert itself into the position of an advocate, and say, I will hold you in contempt, you will read that statement? Where does a trial judge get that kind of authority to become an advocate?


As the questioning went on, didn’t Lester continue to invoke his Fifth Amendment privilege, so that in the end, did the trial court really preclude him from exercising his right not to testify, asked Justice French?

Lester ended up reading a statement he had previously given the police—he didn’t offer new testimony, did he, asked Chief Justice O’Connor? He read from a statement, right? He didn’t deny that he wrote it?

Sufficiency of the Evidence For Conviction

Didn’t the trial court find that even disregarding Lester’s testimony, which it was not considering, there was ample evidence of guilt, asked Justice French? Chief Justice O’Connor later pretty much asked the same thing.

The Right of Confrontation

Was the defense arguing a denial of the right to cross examination because of the witness taking the Fifth, asked Justice Lanzinger? (answer: yes)

How it Looks From the Bleachers

To Professor Bettman

Student Contributor Michael Elliott and I disagree on this one-I’m calling it for the defense, albeit clearly in a split decision. I think Justices Lanzinger, O’Donnell, O’Neill and probably Pfeifer (who asked no questions) will go for the defense.  The Chief and Justice French seem poised to find for the state.  As usual, no hints from Justice Kennedy.

I know that reluctant witnesses in domestic violence prosecutions are a huge problem everywhere, as Justice O’Donnell worried about at oral argument.  And there seems to be little doubt in anyone’s mind that Lester Arnold did what he did to protect his son, who was probably guilty of domestic violence. But the constitutional cost is just too high in this one.  The trial judge clearly abdicated his constitutional responsibility here in just blowing Lester off when he tried to take the Fifth.  Justice Lanzinger was very impressive to me when she challenged the prosecutor about having a procedure in place to provide counsel quickly and easily for a witness who took the Fifth, to advise the witness in this circumstance.  And Justices O’Donnell and O’Neill were also impressive with probing questions about the trial court’s conduct here. Had the trial court just taken the necessary time and steps, this appeal wouldn’t be here.

The Confrontation Clause issue is also an interesting one, lurking in the background.

Even though Lester likely took the Fifth to protect his son, as Justices O’Neill and O’Donnell pointed out, Lester could also have been found the aggressor, putting his taking of the Fifth in a different light. Also, contrary to the position of the Chief and Justice French, without Lester’s testimony, the sufficiency of the evidence for conviction sounds pretty shaky.

I give real credit to defense counsel who, despite a rather plodding argument style, clearly feels passionately about the constitutional principles involved here, while the law director seemed to be dismissive of them.

To Student Contributor Michael Elliott

I think the State has a win here. That said, a few of the justices seemed very unhappy about how the trial court handled Lester Arnold’s attempt to invoke his Fifth Amendment self-incrimination right.

Chief Justice O’Connor, no surprise here, seemed to side with the State. Unlike some of the other justices, she appeared entirely unconcerned with whether or not the witness was aware of his rights, merely noting that nothing that Lester read in his witness statement was self-incriminating. Finally, she mentioned that the issue being argued was a “red herring,” and that there was enough evidence to convict Jeffery Arnold even without his father’s testimony. Justice French seemed to agree with the Chief on this issue.

A few of the Justices were particularly upset that the trial court seemed unwilling to take the time to explain to Lester his Fifth Amendment rights. The concern here seems to be whether the court was more concerned with expediency than it was with constitutional rights. Justice O’Neill in particular harped on the prosecutor on this issue, asking whether Lester had had his self-incrimination rights explained to him and noting that “expediency seemed to have carried the day.” Lanzinger noted that the court should have erred on the side of protecting the witness’ rights, and asked whether the court should have let the witness talk to counsel to assure that the Lester wasn’t incriminating himself.

Justice O’Donnell might present a bit of hope for Arnold. He noted that the father could have legitimately asserted his Fifth Amendment rights, fearing his testimony might be used to assert that he had been the aggressor. Since the witness could potentially have had self-incriminating testimony to offer, Justice O’Donnell questioned whether it was right for the judge to threaten to hold Lester in contempt. On the other hand, he did seem to show some concern that allowing key witnesses in domestic disputes to withhold testimony based on an assertion of Fifth Amendment privilege might make it more difficult for prosecutors to do their jobs. The prosecutor noted witnesses often seek to avoid testifying against defendants with whom they have a close relationship.


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