Evid.R. 601(B) Interpretation

In State v. Adamson, 72 Ohio St.3d 431, 1995 Ohio 199, 650 N.E.2d 875, syllabus, the Ohio Supreme Court held: "Under Evid.R. 601(B), a spouse remains incompetent to testify until she makes a deliberate choice to testify, with knowledge of her right to refuse. the trial judge must take an active role in determining competency, and must make an affirmative determination on the record that the spouse has elected to testify." In State v. Adamson (1995), 72 Ohio St.3d 431, 1995 Ohio 199, 650 N.E.2d 875, the syllabus of the opinion states, "under Evid.R. 601(B), a spouse remains incompetent to testify until she makes a deliberate choice to testify, with knowledge of her right to refuse. The trial judge must take an active role in determining competency, and must make an affirmative determination on the record that the spouse has elected to testify." In State v. Brown (2007), 115 Ohio St.3d 55, 2007 Ohio 4837, 873 N.E.2d 858, the Ohio Supreme Court reversed a murder conviction because the trial court failed to instruct a witness on spousal competency and make a finding on the record that she voluntarily chose to testify. The Brown court held that failure to do so constituted reversible plain error. Both Adamson and Brown observe that the decision to testify must be made with knowledge and understanding of the witness's right not to testify, and the decision must be made freely and voluntarily.