634 N.E.2d 1050 | Ohio Ct. App. | 1993
Lead Opinion
The appellant, Karen Hayes, was before the Cuyahoga County Court of Common Pleas, Juvenile Division, pursuant to a dependency complaint filed by the Cuyahoga County Department of Human Services ("CCDHS") regarding Franklin Billman, Jr., the son of Hayes. When CCDHS called Hayes as a witness, she asserted her
The United States Supreme Court has held that the right to refrain from self-incrimination applies to juvenile court proceedings. In In re Gault (1967),
"The language of the
"`The privilege can be claimed in any proceeding, be it criminal or civil, administrative or judicial, investigatory or adjudicatory * * * [and] it protects any disclosures which the witness may reasonably apprehend could be used in a criminalprosecution or which could lead to other evidence that might beso used.'" (Emphasis sic and footnote omitted.)
Clearly, the right to refrain from testifying against oneself attaches to a dependency action in juvenile court. The Gault court also emphatically stated that the application of the constitutional privilege does not turn on the type of proceeding:
"It is true that the statement of the privilege in the
In the case sub judice, Hayes was required to testify in a dependency proceeding. A "dependent child" is defined in R.C.
"As used in this chapter, `dependent child' includes any child:
"(A) Who is homeless or destitute or without proper care or support, through no fault of his parents, guardian, or custodian;
"(B) Who lacks proper care or support by reason of the mental or physical condition of his parents, guardian, or custodian;
"(C) Whose condition or environment is such as to warrant the state, in the interests of the child, in assuming his guardianship;
"(D) To whom both of the following apply:
"(1) He is residing in a household in which a parent, guardian, custodian, or other member of the household has abused or neglected a sibling of the child;
"(2) Because of the circumstances surrounding the abuse or neglect of the sibling and the other conditions in the household of the child, the child is in danger of being abused or neglected by that parent, guardian, custodian, or member of the household."
Testimony elicited from a parent on any of these issues would open the door for potential prosecution, at a minimum, for child endangering pursuant to R.C.
In the case sub judice, Hayes chose to assert her constitutional right to silence, and the court committed reversible error in forcing her to testify.
Appellant's assignment of error is well taken.
Judgment reversed andcause remanded for rehearing.
JOHN F. CORRIGAN, P.J., and JAMES D. SWEENEY, J., concur.
HARPER, J., dissents.
"The trial court denied Karen Hayes her privilege against self-incrimination and thereby denied her due process of law when it ordered her to testify during CCDHS's case-in-chief at the dependency adjudication hearing.
"A. A Mother Has A Right To Remain Silent at a Dependency Adjudication Hearing.
"B. Right to Remain Silent Does Not Dissipate If a Party Is Represented by Counsel.
"C. The Trial Court's Ordering Karen Hayes to Testify in CCDHS's Case-in-Chief Constituted Prejudicial Reversible Error."
Dissenting Opinion
I dissent from the majority opinion. I am an ardent believer in constitutional protection for all citizens, but I am not willing to create a blanket protection with far more damaging implications than necessary.
The power of government to compel individuals to testify in court, before grand juries and other governmental agencies, is firmly entrenched in Anglo-American *282
jurisprudence. See Ullman v. United States (1956),
"No person shall * * * be compelled in any criminal case to be a witness against himself * * *."
The privilege is a testament to our fundamental values and aspirations; it also shows a very crucial factor in the development of our individual liberty. Ullman, supra,
I agree with the majority that it can be asserted in any proceeding, civil or criminal, administrative or judicial, investigatory or adjudicatory. McCarthy v. Arndstein (1924),
The majority's sole reason for reversing the trial court is that "[t]estimony elicited from a parent on any of these issues would open the door for potential prosecution, at a minimum, for child endangering pursuant to R.C.
"* * * [T]he witness may not refuse to comply with the order on the basis of his privilege against self-incrimination; but no testimony or other information compelled under the order (or any information directly or indirectly derived from such testimony or other information) may be used against the witness in any criminal case, except a prosecution for perjury, giving a false statement, or otherwise failing to comply with the order."
In the instant case, the record reveals that appellant originated the circumstances that led to this proceeding when she requested outside care from the state for her children. At the hearing, the trial court understood the steps necessary to protect her when it made the following observations:
"THE COURT: Ordinarily, Mr. Amata, in this courtroom, witnesses who are called * * * must testify, and * * * unless they're going to incriminate themselves — in which case, you could advise her not to answer the question, because it might be incriminating." See In re Troescher (Aug. 5, 1991), Stark App. No. 8442, unreported, 1991 WL 160861. Even appellant's counsel could not find any incriminating statement made by her nor did he advise her not to answer any of the questions proffered to her:
"They have to rely on my client to get up there and incriminate herself — which I don't think she did, but that's the gist of their case."
In case after case, courts have ruled that the protection is against the use of compelled testimony and not the making of the testimony. A witness does not suffer from the making of a statement until that statement is used against him at which time the
"`[A] state witness may not be compelled to give testimony which may be incriminating under federal law unless thecompelled testimony and its fruits *284 cannot be used in any manner by federal officials in connectionwith a criminal prosecution against him. We conclude, moreover, that in order to implement this constitutional rule and accommodate the interests of the State and Federal Governments in investigating and prosecuting crime, the Federal Governmentmust be prohibited from making any such use of compelledtestimony and its fruits.'" (Emphasis added.) See, also,Albertson v. Subversive Activities Control Bd. (1965),
While it is preferable not to compel a witness to testify, however, when it is done in the interest of justice, an appellate court's review should be concerned with the use of such testimony. To the extent that appellant's testimony is not used against her, there is no violation of the