Redman v. Watch Tower Bible and Tract Society of Pennsylvania:
Redman et al., Appellants and Cross-Appellees, v. Watch Tower
Bible and Tract Society of Pennsylvania et al., Appellees and Cross-Appellants
No. 92-2041
Supreme Court of Ohio
69 Ohio St. 3d 98; 630 N.E.2d 676; 1994 Ohio LEXIS 872
April 27, 1994, Decided
SUBSEQUENT HISTORY: [***1]
Rehearing Denied May 25, 1994.
PRIOR HISTORY:
Appeal and Cross-Appeal from the Court of Appeals for Wood County, No.
91-WD-071.
Otterbein W. Duesler died testate in 1988 at the age of ninety-one. By his last
will and testament, Duesler left most of his $ 338,000 estate to defendant-appellee
and cross-appellant, Watch Tower Bible and Tract Society of Pennsylvania, the
parent organization of the church known as Jehovah's Witnesses. The will, which
superseded a previous will executed by Duesler, was drafted by defendant-appellee
and cross-appellant, Walter Kobil, himself a member of the Jehovah's Witnesses.
Claiming undue influence, three of Duesler's four surviving sisters,
plaintiffs-appellants and cross-appellees, Irene Redman, Edna Blasis and Opal
Atkin, instituted this will-contest action.
At trial, plaintiffs elicited expert testimony from Dr. Gerald Bergman
concerning the beliefs and practices of the Jehovah's Witnesses. Bergman, a
former Jehovah's Witness, has written extensively about the church. He testified
that the church engaged in a practice he termed "theocratic warfare." This
practice allegedly includes a church policy [***2] to encourage members to
perjure themselves in order to protect the church and its followers. Plaintiffs
also questioned several other witnesses about subjects including: the depth of
Duesler's commitment to the church, the effects of baptism within the church,
the consequences of disfellowship, and the effect religion had on Duesler's
marriage.
Most of plaintiffs' case was controverted by the defense. Kobil testified that
he was a member of the Jehovah's Witnesses, but that lying under oath was not a
tenet of their teachings. Kobil's testimony was corroborated by John Schabow, an
elder in the local Jehovah's Witnesses congregation. Schabow also contradicted
plaintiffs' evidence concerning Duesler's level of activity within the church.
Ultimately the jury returned a verdict in favor of plaintiffs, finding that the
will was the product of undue influence. The court of appeals reversed, holding
that the trial court improperly permitted the admission of evidence of a
witness's religious beliefs or opinions for the purpose of impeachment.
The cause is now before this court upon the allowance of a motion and
crossmotion to certify the record.
DISPOSITION: Judgment affirmed.
COUNSEL: [***3] Caughey, Kuhlman, Beck & Reddin and William C. Caughey; and
David E. Cruikshank, for appellants and cross-appellees.
Kolb & Kolb, Richard Kolb and Matt Kolb, for appellees and cross-appellants.
JUDGES: Moyer, C.J. A.W. Sweeney, Wright, Bryant, F.E. Sweeney and Pfeifer, JJ.,
concur. Douglas, J., not participating. Peggy Bryant, J., of the Tenth Appellate
District, sitting for Resnick, J.
OPINIONBY: MOYER
OPINION: [*99] [**677] Section 7, Article I of the Ohio Constitution guarantees
freedom of religion and specifically provides that no person shall "be
incompetent to be a witness on account of his religious belief * * *." In
keeping with this constitutional provision, Evid.R. 610 states: "Evidence of the
beliefs or opinions of a witness on matters of religion is not admissible for
the purpose of showing that by reason of their nature his credibility is
impaired or enhanced."
This case presents us with the distinction between two related but separate
evidence concepts: bias and credibility. Conversely, nothing in the rule
prohibits the admission of religious evidence to show interest or bias on the
part of the witness. See Staff Note to Evid.R. 610. Specifically, [***4] the
question is whether the trial court improperly permitted the use of religious
beliefs in general to attack defendants' credibility through the testimony of
plaintiffs' expert, Dr. Gerald Bergman. Since we believe the trial court went
beyond the issue of bias, we affirm the judgment of the court of appeals.
The use of one's congregational affiliation to show bias is acceptable under
Evid.R. 610. The use of one's religious beliefs or affiliation to attack
credibility is not. As stated by the United States Supreme Court, "* * * bias is
a term used * * * to describe the relationship between a party and a witness
which might lead the witness to slant, unconsciously or otherwise, his testimony
in favor of or against a party." United States v. Abel (1984), 469 U.S. 45, 52,
105 S.Ct. 465, 469, 83 L.Ed.2d 450, 457. An attack on credibility is designed to
expose a [*100] witness's general tendency towards truthfulness or
untruthfulness. Davis v. Alaska (1974), 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d
347. See State v. Gardner (1979), 59 Ohio St.2d 14, 13 O.O.3d 8, 391 N.Ed.2d
337.
Generally, a witness's credibility is put at issue whenever he or she testifies.
However, [***5] this general rule is subject to various exceptions. Examples
include: restrictions on impeachment of one's own witness found in Evid.R. 607;
limitations on impeachment by evidence of reputation, Evid.R. 608; attacks using
prior convictions, Evid.R. 609; the use of prior statements of a witness, Evid.R.
613; and Ohio's rape shield law, R.C. 2907.02 et seq. The right to impeach the
credibility of a witness is not absolute. Evid.R. 610 seeks to balance a party's
right to attack the credibility of an opposing witness while preserving the
witness's overriding constitutional right to religious freedom.
Evid.R. 610 is based on notions of relevancy and unfair prejudice, and a goal of
avoiding inquiry into areas that bear little [**678] nexus to the ultimate
issue. When, as here, the witness belongs to a minority sect, which may or may
not be viewed with disdain or misunderstanding, the risk of unfair prejudice is
high. Furthermore, common experience suggests that affiliation with any
particular religious belief is not necessarily indicative of a predisposition to
testify honestly. Here, plaintiffs attempted to show that the witness's
religious beliefs were paramount to the oath [***6] taken prior to testifying.
This represents a use of religious beliefs expressly prohibited by Evid.R. 610.
The courts of Ohio have had little opportunity to interpret Evid.R. 610.
However, the identical federal counterpart to the Ohio rule has been the subject
of extensive litigation. In Malek v. Fed. Ins. Co. (C.A.2, 1993), 994 F.2d 49,
the court found questions addressed to the witness's affiliation with Hassidic
institutions and the religious composition of his accounting clientele to
violate Fed. R.Evid. 610. The court saw this as an attempt to show that the
witness's character for truthfulness was affected by religious beliefs shared by
the plaintiffs. In another recent decision from the Second Circuit, the court
held that the statement, "'Jews aren't supposed to turn other Jews over,'" was a
clear violation of the absolute prohibition contained in Evid.R. 610. United
States v. Teicher (C.A.2, 1993), 987 F.2d 112, 119. See, also, Contemporary
Mission, Inc. v. Bonded Mailings, Inc. (C.A.2, 1982), 671 F.2d 81; United States
v. Sampol (C.A.D.C.1980), 636 F.2d 621; Government of Virgin Islands v. Petersen
(C.A.3, 1977), 553 F.2d 324.
Much of plaintiffs' [***7] case centered on Dr. Bergman's testimony concerning
theocratic warfare and his allegations that Jehovah's Witnesses would lie to
protect their congregation. Questions addressed to Kobil's congregational
affiliation with the Jehovah's Witnesses and work he had performed for the
church were permissible to show bias. Beyond that, the bulk of plaintiffs'
questioning [*101] amounted to an attack on the tenets of the Jehovah's
Witnesses' beliefs. This tactic went beyond the issue of bias and violated the
principles of relevancy, unfair prejudice, religious freedom, tolerance, and
personal privacy that underlie Evid.R. 610.
The Rules of Evidence supply several methods for attacking a witness's
propensity towards truthfulness, including those listed above under Evid.R. 608,
609 and 613. Questions concerning a witness's religious beliefs are not an
additional permissible method to test truthfulness. The court of appeals was
correct in so holding.
Defendants on cross-appeal dispute the jury's ultimate finding of undue
influence. Many of defendants' evidentiary arguments are rendered moot by our
affirmance of the court of appeals' order of reversal and remand. However, there
are [***8] two specific issues that we will address.
The first concerns the effect on the ultimate issue of undue influence of a
sixteen-year passage of time between the execution of Duesler's will and his
death. Defendants argue that the passage of time should be construed as a
reaffirmation and, hence, bar a finding of undue influence. We believe the
better-reasoned approach is to consider the extended period of time between
execution of the will and the testator's death as some evidence of the
testator's freedom from undue influence but that it should not be deemed
presumptive.
If the will was never the product of undue influence, then the mere passage of
time after its execution would have no effect. Only where a will is invalid at
its inception would a reaffirmation bear on the issue of undue influence. This
court has previously held that to later cure deficiencies in a will, the same
formal requirements of execution found in R.C. 2701.03 apply to reaffirmations
or republications. Collins v. Collins (1924), 110 Ohio St. 105, 143 N.E. 561. No
such formal document exists in this record. The mere silence or acquiescence of
a testator could be demonstrated to a jury, but such silence, [***9] standing
alone, will not cure an otherwise defective will. This is especially true, where
as here, the jury concluded that Duesler was subject to continuing influences
until his death.
Defendants' second proposition suggests that we refine our holding in West v.
Henry (1962), 173 Ohio St. 498, 20 O.O.2d 119, 184 N.E.2d 200. In West, we held
that [**679] to succeed on a claim of undue influence, one must establish "(1) a
susceptible testator, (2) another's opportunity to exert [undue influence], (3)
the fact of improper influence exerted or attempted and (4) the result showing
the effect of such influence." Id. at 510-511, 20 O.O.2d at 126, 184 N.E.2d at
208.
Defendants contend that in order to show that the testator's wishes have been
altered by undue influence, plaintiffs must first prove what the testator's
original testamentary wishes were.
[*102] Defendants' contention presents little more than a corollary to the
fourth element of West. In any will-contest action, the person who can give the
best evidence of influence is dead. Therefore, most evidence will be
circumstantial, leaving the factfinder to draw permissible inferences. One such
inference [***10] may be that the testamentary disposition does not reflect the
testator's true desires at the time of the execution of the will. However, this
is not always the result of undue influence. A testator may bequeath or devise
property out of a moral duty or to further the perceived wishes of a third
party. If Duesler left his farm to the church because his mother wished it so,
that devise does not necessarily represent his true feelings of self-interest,
but it certainly would not be categorized as the result of undue influence. The
question under West is whether undue influence manifested a result different
than would have been reached absent the undue influence. West puts the inquiry
where it should be, on the result of undue influence, not on what the testator's
desires might have been prior to the undue influence.
In this case, there was evidence that Duesler revoked an earlier will when he
drafted the document at issue. It could therefore be reasonably inferred that
Duesler did change his wishes without ever establishing what those wishes were.
As it now stands, West presents a framework best suited to the ultimate issue,
and we decline to modify our previous holding. [***11]
For the foregoing reasons, the judgment of the court of appeals is affirmed, and
this cause is remanded to the trial court for further proceedings consistent
with this opinion.
Judgment affirmed.
A.W. Sweeney, Wright, Bryant, F.E. Sweeney and Pfeifer, JJ., concur.
Douglas, J., not participating.
Peggy Bryant, J., of the Tenth Appellate District, sitting for Resnick, J.