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Columbus v. Taylor10/26/1988
performed out of court, tending to prove or disprove a contention in issue, is admissible if there is a substantial similarity between conditions existing when the experiments are made and those existing at the time of the occurrence in dispute; dissimilarities, when not so marked as to confuse and mislead the jury, go to the weight rather than the admissibility of the evidence." (Emphasis added.) St. Paul Fire & Marine Ins. Co. v. Baltimore & Ohio RR. Co. (1935), 129 Ohio St. 401, 2 O.O. 396, 195 N.E. 861, paragraph one of the syllabus.
In the present case, the court excluded the experiment without hearing any evidence as to its scientific validity. The trial court should have conducted a review of evidence concerning the test's validity and the qualifications of the expert witness. Once these two determinations were made, the trial judge would have been in a position to make an informed ruling on the proffered experiment.
The admission or rejection of evidence of out-of-court experiments is within the sound discretion of the trial court. "`* * * he exercise of such discretion will, upon appeal, be viewed somewhat more critically when such evidence is rejected than when it is received."' St. Paul Fire & Marine Ins. Co., supra, at 406, 2 O.O. at 399, 195 N.E. at 864. Under this standard, which the majority endorses, the trial court's rejection of the evidence without a hearing was an abuse of discretion. See State v. Adams (1980), 62 Ohio St.2d 151, 16 O.O. 3d 169, 404 N.E. 2d 144. Since the proffered evidence appeared crucial to appellee's defense, the court's ruling effectively denied him the opportunity to present an adequate defense. Accordingly, I would affirm the judgment of the court of appeals.
SWEENEY, J., concurs in the foregoing dissenting opinion.
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