Eliciting Out of Court Statements Made by the Other Co-Defendant
Evid.R. 801(D)(2), defines admissions by a party-opponent as nonhearsay. This rule, however, "applies to statements offered against a party where the statements are the party's own." In re Coy, 67 Ohio St.3d 215, 218, 1993-Ohio-202.
Further, Evid.R. 801(D)(2)(a) provides: "The statement need not be against the interest of the declarant at the time made. It is sufficient that the statement be that of a party and that it is offered by the opposing party. a party may not introduce his own statement under this rule. id. (citing Staff Note to Evid.R. 801(D)(2)(a)).
The situation when a co-defendant elicits statements from a witness allegedly made by the other co-defendant:
In this situation, the statements at issue would not be offered against the party who made it, i.e., the other co-defendant. See in re Seymore (Oct. 28, 1996), 12th Dist. No. CA95-11-204, 1996 WL 622590. Rather, a co-defendant's statement would be offered not against him, but in order to exculpate or benefit a different party, namely the other co-defendant.
As the Staff Note to Evid.R. 801(D)(2) clarified, an admission by party-opponent is a statement that must be made by a party and "offered by the opposing party.
"The Twelfth District Court of Appeals determined that from this rule is follows that a defendant "may not introduce his co-defendant's statements under the rule since the co-defendant is not an opposing party." Id. herefore, the Twelfth District found that the co-defendant's out-of-court statement was hearsay and not admissible.