¶1 dissenting.
¶2 In obtaining its conclusion, the majority places great emphasis upon both United States v. Matlock (1974), 415 U.S. 164, 94 S.Ct. 988, 39 L.Ed.2d 242, and upon McCormick’s interpretation of Evid.R. 104(A). While both are instructive, Matlock, supra, is not binding upon this court. Although we also share respect for the commentary of McCormick, the effect of that view has not been formally enacted in this state.
¶3 In its opinion, the majority notes that “the Matlock court emphasized that the circumstances in which the hearsay statement was made showed it was reliable.” In addition, in Matlock the court noted the “ … statements were against her (the declarant’s) penal interest and they carried their own indicia of reliability.” Matlock, 415 U.S. at 176, 94 S.Ct. at 996, 39 L.Ed.2d at 252. The court also placed emphasis upon the fact that the declarant was at the suppression hearing and was available for cross-examination reducing the risk of prejudice from the use of hearsay. Id. at 177, 94 S.Ct. at 996, 39 L.Ed.2d at 253.
¶4 In this cause, there is no similar “indicia of reliability,” nor was the declarant available for cross-examination. Further, the notion of “indicia of reliability,” though not specifically identified by the court, stems from the hearsay exception contained in Fed.Evid.R. 803(24), also known as the “residual hearsay exception.”
¶5 Fed.Evid.R. 803 provides:
“The following are not excluded by the hearsay rule, even though the declarant is available as a witness:
“ …
“(24) A statement not specifically covered by any of the foregoing exceptions but having equivalent circumstantial guarantees of trustworthiness …
¶6 However, this same rule was not adopted in Ohio. Therefore, even assuming an “indicia of reliability,” which is not evident in this cause, the statement would still not be admissible in this jurisdiction.
¶7*83 Finally, the decision as to admissibility of the evidence and, even more basic, whether or not to apply the Rules of Evidence at a suppression hearing, rests with the discretion of the court. See Evid.R. 101 and 104(A). Therefore, in order to reverse, this court must find an abuse of discretion which “ … connotes more than an error of law or of judgment; it implies that the court’s attitude is unreasonable, arbitrary, or unconscionable. Steiner v. Custer (1940), 137 Ohio St. 448 [31 N.E.2d 885]; Conner v. Conner (1959), 170 Ohio St. 85 [9 O.O.2d 480, 162 N.E.2d 852]; Chester Township v. Geauga Co. Budget Comm. (1976), 48 Ohio St.2d 372 [2 O.O.3d 484, 358 N.E.2d 610].” State v. Adams (1980), 62 Ohio St.2d 151, 157-158, 16 O.O.3d 169, 172-173, 404 N.E.2d 144, 148-149. Accord Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219, 5 OBR 481, 482, 450 N.E.2d 1140, 1142.
¶8 In this writer’s judgment, therefore, the non-application of the Rules of Evidence in such a proceeding is not tantamount to a per se act equivalent to an abuse of discretion. Further, the failure to apply a rule of evidence that has not yet been adopted in Ohio also does not amount to such abuse.
¶9 In addition, a review of the history of the rules reveals that the “residual hearsay” exception was specifically rejected. The Ohio Evidence Rules Committee disapproved the adoption of an Ohio counterpart to the hearsay exception adopted by the Federal Rules of Evidence. The committee believed that adoption of those rules would provide the court with unnecessary discretion. We are mindful that there are many among the bench and bar of Ohio that do not share this rationale and who urge that this federal counterpart should be enacted here. However, that event has not yet transpired.
¶10 For the foregoing, I would affirm.