¶1 dissenting.
¶2 I respectfully dissent from the majorities determination.
¶3 In an effort to minimize the children’s conduct, the majority characterizes their activities, viz., neglect of school rules, placing toilet tissue in forbidden places, *432 avoiding the truth, and evading responsibility as conduct typical of their age. That determination is totally unwarranted.
¶4 The majorities characterization of the children is also incredibly incomplete. When the parents adopted the children at ages five and seven, respectively, the children were certainly not well adjusted. The parents were told at the time of adoption that if they had anything nice in the home these physical possessions should be removed because the children would destroy them. The children had never been in a store or on a vacation prior to adoption. The boy had been prescribed forty grams of Ritalin per day to moderate his disruptive behavior. To this litany of undesirable behavior should be added Willie’s theft of $40 from a teacher, forging the parents’ signatures on school documents, stealing and concealing detention slips from the school, and, in an egregious example of misconduct, falsely accusing one of his teachers of racism even after having been warned that this type of allegation could jeopardize the teacher’s continued .employment at the school.
¶5 It should also be noted that, over the years, the parents attempted an escalating series of noncorporal punishment to bring the children’s behavior into line, viz., restricting and/or eliminating television and videogame privileges, having the children write repetitiously, and arranging a mock trial at the South Euclid Municipal Court to “scare Willie straight.”
¶6 It appears then that the parents developed a philosophy of progressive discipline and that corporal punishment was used only as a last resort when less drastic measures had proved ineffective.
¶7 The central issue in this case is how the defendants are to meet their burden of affirmatively showing that the corporal punishment was proper and reasonable under the circumstances. How is this to be accomplished if not by the use of expert witnesses? Contrary to the assertion of the majority that the proffered expert testimony would have spoken to only evidence concerning whether the children “displayed characteristics of children on whom physical violence [was] inflicted,” the proffered evidence disclosed that the experts would have testified to the ultimate fact in this matter, ie., that there was no unreasonable punishment and that the children were not abused.
¶8 The defense theory was that these two social workers would have testified that abused children exhibit particular psychological issues and that the children at' issue were, in them expert opinion, not abused, inferring that the children did not exhibit these particular psychological issues, which are indicative of an abused child. The state based its objection on this testimony not being relevant evidence; however, the stated reasoning behind the objection reveals that the basis is not truly “relevance” but “cumulative” evidence as indicated by the reliance on the previous testimony by a number of witnesses.
¶9*433 It would appear that this expert testimony was relevant to the determination of the action, ie., the defense of whether the parent used proper and reasonable discipline under the circumstances, since relevant evidence “means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” See Evid.R. 401. Although relevant evidence, it may be precluded according to the discretion of the court as a “needless presentation of cumulative evidence.” See Evid.R. 403(B).
¶10 The case boils down to the children’s word against the parents’ word as to whether the wounds were totally inflicted by the parent. Thus, the proffered evidence was, contrary to the majority, relevant evidence, as it tends to make the existence of the fact of abuse less probable. The proffered evidence, albeit scantily detailed in the record, does not appear to constitute the “needless presentation” (and I stress the word “needless”) of cumulative evidence because it goes to the heart of the action and is the defendant’s only use of expert witnesses. The proffered evidence can also be considered to be not cumulative in that there was no other expert evidence put on by the defense. I make no prediction as to the weight the jury would have ascribed to this proffered evidence, nor do I predict the ultimate determination of the jury in light of this evidence. However, I think the jury should have had the opportunity to hear this evidence. Accordingly, I would affirm the third assignment of error and reverse and remand.