Ohio Court of Appeals Hears Case Regarding Admissibility of Physician Testimony That the Alleged Victim Suffered From Memory Impairments
Recent Cases in Law and Neuroscience, Curated by the Center for Law, Brain & Behavior and the Shen Neurolaw Lab with support from the Dana Foundation
On August 14, 2019, Defendant Dale Smith, aged 72, of Portage, Ohio, was convicted of felonious assault after assaulting a woman (referred to as A.Z. in court documents), but he appealed his conviction on the grounds that the trial court “abused its discretion when it prohibited the defense from presenting certain evidence relating to [the victim’s] memory issues.” Prior to trial, the defense planned to call expert witness Dr. David Connell to testify “regarding A.Z.’s memory impairments.” During a previous evaluation regarding a matter unrelated to Smith’s case, Dr. Connell had opined that “[A.Z.] had ‘global memory impairment, ‘impairment [of her] short-term memory’” and “other cognitive deficits.” The prosecution filed a motion — which was granted by the trial court — to exclude Dr. Connell’s testimony “on the basis that it would confuse and mislead the jury into believing that A.Z. was not competent to testify.”
In his appeal to the Ohio Court of Appeals, Smith claimed that Dr. Connell’s testimony regarding A.Z.’s memory impairments “was admissible to establish A.Z.’s ‘[in]ability to recall events” and claimed that he was materially prejudiced by the exclusion of the evidence; Smith argues that had Dr. Connell testified, the outcome of his trial would have been different.
Specifically, Smith claims that A.Z. was “lying on the stand” and contends that “he should have been allowed to use Dr. Connell as a means to challenge the truthfulness of A.Z’s testimony.” However, the court opined that “[Smith] he does not explain how Dr. Connell’s testimony would have made it any more or less probable that A.Z. was lying on the stand” and additionally, that they “[could not] discern any basis to conclude that Dr. Connell’s testimony would have been relevant for such purposes.”
Further, the court stated that even if this testimony was admissible, “Smith has not argued, much less shown, that the outcome of the case would have been different if Dr. Connell had testified,” which Smith would have needed to prove in accordance to Ohio’s rules of criminal procedure. More so, the court argues that Dr. Connell’s testimony would have been merely cumulative evidence — A.Z. had testified herself that she has “significant brain damage from being abused” and “openly admitted that she suffered from a longstanding memory problem.”
On October 30, 2020, the Ohio Court of Appeals denied Smith’s appeal and upheld his conviction.
Key words: global memory impairment, memory, cognitive deficits, admissibility of expert opinion testimony, Ohio
Citation: State of Ohio v. Dale W. Smith, 2020 WL 6375796
This post is the 24th post as part of an ongoing Center for Law, Brain & Behavior (CLBB) series tracking the latest developments in law and neuroscience cases. To see previous posts about recent cases, see the full case archive on the CLBB website. To see updates on legal scholarship, see the Neurolaw News, hosted by the MacArthur Foundation Research Network on Law and Neuroscience. This project is made possible through support of the Dana Foundation.