The Fifth Appellate District has ruled that the statutes and Evidentiary Rules mentioned above only apply to trial testimony against the Defendant. If the Defendant loses on his motion to suppress, and then pleads no contest, then no error has been committed if the police never actually testified in trial against the suspect.[1]
This seems a strange decision as it means that an out of uniform officer driving an unmarked car could testify against you at a suppression hearing. The statutes and evidence rule mentioned above do not limit themselves to trial testimony, but simply use the word “testify.” By interpreting the word narrowly, the Fifth Appellate District gets around the plain language of the statute.
The Third Appellate District came to the opposite conclusion on this matter. In the case of State v. Clark,[2] the Court held that:
Finally we come to the question as to the testimony of the arresting officer at the hearing on suppression as distinguished from possible testimony at trial. Was that testimony at the hearing incompetent under R.C. 4549.14, 4549.16, and Evid. R. 601(C)? It clearly was.[3]
Unfortunately for suspect in this case, his trial attorney failed to make this argument at the trial court level, and thus waived it on appeal.
