OHIO CRIMINAL PROCEDURE DISTINCTIONS PROFESSOR RIC SIMMONS THE OHIO STATE UNIVERSITY MORITZ COLLEGE OF LAW

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1 A. Furth Amendment OHIO CRIMINAL PROCEDURE DISTINCTIONS PROFESSOR RIC SIMMONS THE OHIO STATE UNIVERSITY MORITZ COLLEGE OF LAW PRE-TRIAL: SEARCHES, WARRANTS, ARRAIGNMENT, GRAND JURY, DISCOVERY Under OHIO LAW, a private individual may arrest and detain a suspect fr a felny as lng as she has t believe the ther persn cmmitted a felny. Private individuals have n authrity t arrest fr misdemeanrs. B. Defining "Search" Example 1: Tm is waiting t meet his friend Jim at a restaurant. Jim arrives breathless and says that he was just mugged by a man with a red hrse tatt n his neck and wearing a leather jacket. While Jim calls the plice, Tm sees a man with a red hrse tatt n his neck and a leather jacket walking dwn the sidewalk acrss the street. Tm runs acrss the street and tackles the man, telling him he is under arrest. Under Ohi law, Tm's actin is legal even thugh he did nt witness the crime itself. Under the FEDERAL RULE, an individual has prtectins against searches f his r her "hme." A hme is defined as any place where the individual has the right t immediate pssessin f a dwelling. Under OHIO LAW, curts have clarified that an individual is nly affrded the prtectin f a hme if he has a and expectatin f privacy in the dwelling. Mere pssessin f the dwelling by trespass is nt sufficient. C. Search Warrant Example 2: Sarah, wh is hmeless, has fund an abandned apartment building where she can sleep at night. She stres her few pssessins there, including a few blankets and her small stash f crack ccaine. One night the plice decide t raid the building and they see Sarah smking crack. They search her belngings and find her stash f crack ccaine. Ohi curts have clarified that this warrantless search is legal because she did nt have a legitimate right t be present n the prperty. Under the FEDERAL RULE, a search warrant must meet fur requirements: (i) it must be supprted by prbable cause t believe that cntraband r evidence f a crime will be fund at

2 the listed lcatin, (ii) the fficer must swear r affirm that his statements t the magistrate are true, (iii) the warrant must state with particularity the place t be searched and the items t be seized, and (iv) the warrant must be issued by a neutral and detached magistrate. OHIO LAW clarifies the particularity requirement by giving specific examples f items that plice are allwed t search fr when they have a warrant. This is nt an exclusive list; it is simply meant t prvide examples f what types f items culd be listed in a warrant:, including weapns items such as stamps, imprints, labels, trademarks, bank bills and ther writings, as well as the dies, stamps, r plates used t create these items materials harmful t minrs in vilatin f Ohi s statutes Any gaming table, device r apparatus, as well as mney r prperty wn in unlawful gaming The existence f a physical cnditin that may becme t the public health, safety, r welfare D. Challenging a Warrant OHIO LAW clarifies the law n challenging a warrant. If a defendant tries t challenge the prbable cause f a warrant, the reviewing curt must give t the issuing magistrate's determinatin f prbable cause, and reslve any gray areas in favr f finding the search warrant valid. E. Cnsent Searches OHIO LAW clarifies the rule with regard t the rights f children t cnsent t an entry f their parents' hme. If plice fficers cme t a hme t investigate, and a child answers the dr, the child has the t their. At that pint, as under the federal law, the plice may seize anything in plain view. Ohi curts have als said that a child may cnsent t a warrantless search f the hme depending n the. Example 3: The plice suspect that Samantha may be selling marijuana. They shw up at Samantha's huse and the nly ne hme is Samantha's 12- year-ld daughter Cindy. The plice ask Cindy if they can cme in and she says yes. They cme in, lk arund the huse, and smell marijuana in the kitchen. They walk int the kitchen and see ten bags f marijuana n the kitchen Themis Bar Review, LLC OH Criminal Prcedure Distinctins

3 cunter. They seize the marijuana and later arrest Samantha fr pssessin with intent t sell. Their entry int the huse is legal because Cindy has the authrity t let them int the huse, and their seizure f the marijuana was legal under the plain view dctrine. F. Cmmunity Caretaking Functin Under FEDERAL LAW, law enfrcement fficers can cnduct searches f real prperty as part f their "cmmunity caretaking" functin if their purpse is t detect dangerus r unsafe cnditins. OHIO LAW clarifies this rule by stating that law enfrcement may btain a warrant t cnduct a search f real prperty if the fficer can shw prbable cause t believe that cnditins n the prperty are r may becme hazardus t. G. Sixth Amendment Right t Cunsel Under FEDERAL LAW, the Sixth Amendment prvides fr the right t cunsel at all critical stages f the prceeding, which includes such stages as: Pst-indictment line-ups; Identificatins and interrgatins; Plea bargaining; Guilty pleas and sentencing. OHIO LAW clarifies that is als a critical stage f the prceeding. H. Arraignment Under OHIO LAW, at the arraignment, the defendant is infrmed f the charges against him and enters a plea. There are fur pssible pleas: 1) 2) 3) (nly with cnsent f the curt) 4) Nt guilty by reasn f. (This must be ). If this is nt pled, the defendant will be cnclusively presumed t be at the time f the ffense. A defendant may change her plea at any time prir t trial upn a shwing f. Under OHIO LAW, if a defendant refuses t enter a plea, a plea f will be entered by the curt n her behalf. OH Criminal Prcedure Distinctins 2016 Themis Bar Review, LLC 3

4 I. Cmpetency/Insanity Plea 1. Cmpetency Under OHIO LAW, a defendant is presumed. The curt, the prsecutr, r the defense can raise the issue f the defendant's cmpetence. If the issue is raised befre trial, the curt will hld a hearing. If the issue is raised after the trial has begun, the curt will hld a hearing nly fr. Under OHIO LAW, the defendant has the burden f prving incmpetency by. The standard is similar t the standard under federal law: A defendant is nt cmpetent t stand trial if he either: i) Cannt understand ; r ii) He cannt. Example 4: Andy is n trial fr murder. During pre-trial hearings, he appears distracted and ccasinally nn-respnsive. During jury selectin, he spends the entire mrning humming, tapping his fingers, and lking ut the windw. Finally, at the end f the first day f trial, Andy's attrney argues that her client is nt cmpetent t stand trial. The judge will first demand that the attrney shw gd cause as t why a hearing shuld be held at this pint. If the attrney can shw gd cause, such as a dramatic deteriratin in her client's cnditin, the judge shuld rder a cmpetency hearing. The defense attrney must prve by a prepnderance f the evidence that either (a) her client des nt understand the nature and bjective f the trial; r (b) her client is unable t assist her in his wn defense. 2. Insanity Under OHIO LAW, if the defendant pleads guilty by reasn f insanity, the curt will rder an evaluatin t determine the defendant's mental cnditin at the time f the ffense. The defendant als has the right t his wn expert evaluatin, which the state will pay fr if the defendant is indigent. In rder t succeed in his insanity defense, the defendant has the burden f prving by that at the time f the ffense he did nt knw the Themis Bar Review, LLC OH Criminal Prcedure Distinctins

5 due t a severe. J. Grand Juries Under FEDERAL LAW, a felny case cannt mve frward until a grand jury issues an indictment frmally charging the defendant with the crime. OHIO requires a grand jury fr any case which might result in r. Ohi als requires a grand jury indictment fr every ther felny case, althugh the defendant can waive her right t a grand jury and prceed by infrmatin if she chses. In OHIO, the prsecutr will present the case t the grand jury and interrgate witnesses in frnt f the grand jury. If a witness refuses t answer questins, the prsecutr will infrm the curt f the questin and the witness' refusal t answer. The curt can then uphld the witness' right t refuse t answer, r can rder the witness t answer. If the witness still refuses, the curt can hld him in. Example 5: The prsecutr is in frnt f the grand jury trying t gather sufficient evidence t indict Draper, a gang leader wh versees a mderatesized narctics selling peratin. The prsecutr calls Frankie as a witness. Frankie is a gang member wh allegedly wrks fr Draper selling crack ccaine n the street. The prsecutr prmises Frankie immunity frm prsecutin and asks him where he gets the crack ccaine that he sells. Frankie refuses t answer, citing his right against self-incriminatin. The prsecutr ges t the trial curt and gives the trial curt a dcument describing the questin she asked Frankie and Frankie's reasn fr nt answering. The judge rules that because Frankie has been prmised immunity, he cannt invke his right against self-incriminatin. The judge rders Frankie t answer. If Frankie still refuses t answer the questin, the judge culd hld Frankie in cntempt and send him t jail until he answers the questin. K. Discvery In OHIO, the prsecutr's discvery bligatins are set ut by Criminal Prcedure Rule 16. It states that the prsecutr must disclse: statements made by the defendant; Defendant s ; Defendant s ; OH Criminal Prcedure Distinctins 2016 Themis Bar Review, LLC 5

6 statements f any witness the prsecutr intends t call; f thse witnesses; Any evidence; Cpies f in prsecutr's cntrl; Cpies f any results r reprts f made in cnnectin with the case; and f all witnesses. In OHIO, a defendant must prvide: Any the defendant intends t intrduce at trial; Cpies f any results r reprts f that the defendant intends t intrduce at trial; and f any witnesses the defendant intends t intrduce at trial; Written r recrded statements f any witnesses the defendant intends t call; and Any evidence, including evidence that tends t supprt an alibi. In OHIO, if either party intends t call an expert as a witness, the party must disclse a reprt written by the expert summarizing the expert's, testimny,, and cnclusins. If the party fails t d s, the expert's testimny will be. In OHIO, if either party vilates the discvery bligatins, the trial curt has brad discretin in determining which sanctins t impse. The trial curt shuld impse the least severe sanctins that are cnsistent with the purpses f the rules f discvery Themis Bar Review, LLC OH Criminal Prcedure Distinctins

7 JURY TRIAL, GUILTY PLEAS, DEATH PENALTY, APPEALS A. Juries 1. Right t Jury Under the FEDERAL LAW, there is a cnstitutinal right t a jury trial fr serius crimes, essentially defined as a crime that carries an authrized sentence f mre than six mnths f imprisnment, regardless f the actual penalty impsed. OHIO LAW gives a defendant rights than what is required under federal law. In Ohi, a defendant has the right t a jury trial fr all crimes except fr, defined as crimes fr which the pssible penalty des nt include a and whse pssible fine des nt exceed. 2. Jury Size Under the FEDERAL LAW, all juries must have 12 members. All verdicts must be unanimus. Under OHIO LAW, felny cases must have -member juries and misdemeanr cases must have -member juries. All verdicts must be unanimus. Juries have alternates wh will watch the trial and be excused befre deliberatins. 3. Challenges fr Cause and Peremptry Challenges Challenges fr cause are in number. Under OHIO LAW, the number f peremptry challenges is per side fr a capital ffense, per side fr ther felnies, and per side fr misdemeanrs. In civil trials, each side has 3 peremptry challenges. In Ohi, a jurr may be challenged fr cause fr any f the fllwing 12 reasns: He was a member f a that returned the indictment tward either party that cannt be remedied by further examinatin He unequivcally states that under n circumstances will he fllw the trial judge s instructins regarding the sentence He is thrugh family r emplyment t the defendant r victim r is himself the defendant r victim He previusly served n a jury invlving a brught against the defendant fr the same act He is a t the case He is a persn r OH Criminal Prcedure Distinctins 2016 Themis Bar Review, LLC 7

8 He has been f a crime that disqualifies him frm serving n a jury He has a case pending between him and the r He r his spuse is invlved in anther case invlving ne f the in the present case He des nt speak, read, and/r understand The curt finds he is t serve as a jurr Example 6: A misdemeanr trial is abut t begin. The judge calls in twenty prspective jurrs, lking fr eight peple t sit n the jury and ne alternate. The judge questins all twenty jurrs and learns that ne f them is a cnvicted feln and anther is the father-in-law f the defendant. Bth prspective jurrs are dismissed fr cause. The prsecutr cnducts a vir dire and learns that anther prspective jurr has been harassed by plice fficers, and s the jurr has a strng bias against law enfrcement fficials. The judge asks whether the jurr can put that bias aside fr this trial and fairly judge the prsecutin's case, and the jurr agrees. The prsecutr mves t dismiss the prspective jurr fr cause, and the judge refuses, ruling that the bias has been remedied. The defense attrney cnducts her wn vir dire and learns that ne f the prspective jurrs is currently suing the defendant regarding an autmbile accident. The defense attrney mves t dismiss this prspective jurr fr cause, and the judge agrees. The judge nw asks fr peremptry challenges, and the prsecutr mves t dismiss the prspective jurr wh has a bias against plice fficers. The prsecutr des nt need t give a reasn fr this challenge. The defense attrney then uses ne f her peremptry challenges n anther jurr, and again needs t give n reasn. Bth sides nw have tw peremptry challenges left. B. Guilty Pleas Under the FEDERAL LAW, guilty pleas are clsely regulated. OHIO LAW specifically sets ut the infrmatin the judge must prvide t the defendant befre the defendant can plead guilty t a felny: The guilty plea cnstitutes an admissin that may be used against him ; The guilty plea subjects him t pssible if he is nt a U.S. citizen; Themis Bar Review, LLC OH Criminal Prcedure Distinctins

9 Any pssible issues; Any applicable restrictins; The including whether the defendant is eligible fr prbatin r cmmunity cntrl sanctins; The guilty plea cnstitutes a waiver f the defendant s right t a,, r ; and The defendant s right t during the guilty plea. OHIO LAW allws fr defendants t enter a plea f n cntest with the curt's permissin. A defendant will admit t all f the alleged in the indictment, infrmatin, r cmplaint. Fr a felny, the curt is then required t find the defendant guilty (assuming the charging dcument set ut all the required elements f the crime). OHIO LAW allws fr defendants t file a mtin t withdraw a guilty plea befre a sentence is impsed r pst-sentencing nly if the withdrawal is necessary t crrect a. The decisin t grant r deny such mtin is within the f the trial curt based upn all circumstances surrunding the plea. Under OHIO LAW, if a prsecutr fails t uphld her end f a plea agreement, the defendant may request r. The judge must grant ne f these remedies. C. Speedy Trial Under FEDERAL LAW, the Due Prcess Clause prtects defendants frm intentinal and prejudicial pre-accusatin and pst-accusatin delay. The time perid cmmences at the time f the arrest r frmal charge, whichever cmes first. Under OHIO LAW, as with mst states, statutes set ut exact number f days that are allwed fr the state t bring a defendant t trial: days fr a minr misdemeanr days fr a third- r furth-degree misdemeanr r ther misdemeanr punishable by up t days in jail days fr a first- r secnd-degree misdemeanr r ther misdemeanr punishable by mre than days in jail days fr a felny Under OHIO LAW, the time within which a defendant must be brught t trial may be extended by any f the fllwing: OH Criminal Prcedure Distinctins 2016 Themis Bar Review, LLC 9

10 The defendant is unavailable fr trial due against him The defendant is in anther state and the prsecutin exercised everything in his cntrl t try t secure his availability The defendant is t stand trial r during the time his determinatin is pending Any perid f delay necessitated by a defendant s Any perid f delay by neglect r imprper act f Any perid f delay necessitated by reasn f a plea in bar r abatement, mtin, prceeding, r actin made r instituted by in curt Any perid f delay necessitated by a Any perid during which trial is stayed pursuant Upn the t delay the trial Any perid during which an Example 7: Darlene is arrested n January 1st fr pssessin f a cntrlled substance, a first-degree misdemeanr. She is arraigned n January 2nd and tld t re-appear in curt n February 1st. Hwever, she fails t appear in curt and a warrant is issued fr her arrest. She is picked up n the warrant n June 1st and brught in t curt. On June 16th she files a mtin t suppress the drugs that were fund n her. A hearing n that mtin is cnducted n July 1st, and she lses the mtin. Her case is finally brught t trial n July 21st. Darlene's speedy trial rights have nt been vilated. Only sme f the time that has passed since her arrest cunts n the "speedy trial clck." Frm her arrest t the date she failed t appear = 31 days. Then the clck is tlled until she is brught back t curt. Frm that date until the date she files a mtin = 15 days. Then the clck is tlled until her mtin is reslved. Frm that date until her trial = 20 days. S a ttal f days = 66 days, well belw the 90 days that the state is entitled t under the speedy trial law. D. Right t Cnfrntatin Under OHIO LAW, a defendant must be at all phases f the trial. There are three exceptins: Themis Bar Review, LLC OH Criminal Prcedure Distinctins

11 1) If the defendant vluntarily after the cmmencement f the trial, the trial may cntinue and a verdict may be rendered in his absence; 2) If the defendant's behavir is s that the trial cannt reasnably be cnducted with his physical presence, the judge may rder that he be remved; r 3) A defendant may als t be tried in his absence r be tried by remte cntempraneus vide. E. Death Penalty Under FEDERAL LAW, the death penalty is nly allwed in a murder case. Furthermre, a defendant cannt be sentenced t death unless the trier f fact finds at least ne aggravating circumstance at either the guilt r penalty phase. There is a pst-cnvictin prceeding during which the same jury that cnvicted the defendant must decide whether t impse the death penalty. During this prceeding, the prsecutr attempts t demnstrate aggravating circumstances, and the defense attrney must be allwed t demnstrate mitigating circumstances. Under OHIO LAW, the death penalty may nly be impsed fr (1st degree murder and felny murder). One r mre f the fllwing aggravating circumstances must be specified in the indictment and prved beynd a reasnable dubt: The ffense was an f a high-level plitical figure; The ffense was a ; The ffense was cmmitted as a means t detentin, apprehensin, trial, r punishment fr anther ffense; The ffense was cmmitted while the ffender was under r ; Prir t the murder, the defendant was cnvicted f an ffense that included the f r attempt t kill anther; The victim was a and the defendant knew r shuld have knwn that fact; The victim was a wh was killed in rder t prevent his testimny r in retaliatin fr his testimny. The killing cnstituted murder; The victim was under years ld; r The killing was the result f an act f. OH Criminal Prcedure Distinctins 2016 Themis Bar Review, LLC 11

12 F. Duble Jepardy Under OHIO LAW, a defendant may make a mtin t dismiss based n duble jepardy, alleging he had a frmer cnvictin, acquittal, r has already been in jepardy fr the same criminal act but he must prvide f the cnvictin, acquittal, r jepardy. If a prsecutr denies this plea, a decides the issue. G. Appeals Under OHIO LAW, a frivlus appeal is ne lacking, meaning that based n the facts and law, it invlved n reasnable cntentin that may be made, and there is n basis fr reversal. If an attrney believes that an appeal is frivlus, she may withdraw as lng as the defendant's right t cunsel is prtected. [END OF HANDOUT] Themis Bar Review, LLC OH Criminal Prcedure Distinctins