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State v. Woodring5/22/1989
f reliability," which is not evident in this cause, the statement would still not be admissible in this jurisdiction.
Finally, the decision as to admissibility of the evidence and, even more basic, whether or not to apply the Rules of Evidence at a suppression hearing, rests with the discretion of the court. See Evid.R. 101 and 104(A). Therefore, in order to reverse, this court must find an abuse of discretion which "* * * connotes more than an error of law or of judgment; it implies that the court's attitude is unreasonable, arbitrary, or unconscionable. Steiner v. Custer (1940), 137 Ohio St. 448 [31 N.E.2d 885]; Conner v. Conner (1959), 170 Ohio St. 85 [9 O.O.2d 480, 162 N.E.2d 852]; Chester Township v. Geauga Co. Budget Comm. (1976), 48 Ohio St.2d 372 [2 O.O.3d 484, 358 N.E.2d 610]." State v. Adams (1980), 62 Ohio St.2d 151,157-158, 16 O.O.3d 169, 172-173, 404 N.E.2d 144, 148-149. Accord Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219, 5 OBR 481, 482, 450 N.E.2d 1140, 1142.
In this writer's judgment, therefore, the non-application of the Rules of Evidence in such a proceeding is not tantamount to a per se act equivalent to an abuse of discretion. Further, the failure to apply a rule of evidence that has not yet been adopted in Ohio also does not amount to such abuse.
In addition, a review of the history of the rules reveals that the "residual hearsay" exception was specifically rejected. The Ohio Evidence Rules Committee disapproved the adoption of an Ohio counterpart to the hearsay exception adopted by the Federal Rules of Evidence. The committee believed that adoption of those rules would provide the court with unnecessary discretion. We are mindful that there are many among the bench and bar of Ohio that do not share this rationale and who urge that this federal counterpart should be enacted here. However, that event has not yet transpired.
For the foregoing, I would affirm.
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