Grant & O'Malley Co. L.P.A.

Stand Your Ground

2023-10-16T07:45:24Z

On January 4, 2021, Governor DeWine signed Senate Bill 175, effectively abolishing the defendant’s “duty to retreat” that had previously existed in Ohio in cases where deadly force had been used. Prior to the passage of Senate Bill 175 the essential elements of self-defense that applied when deadly force was used in an area other than one’s home or automobile, or the automobile of an immediate family member, were: (1) the defendant was not at fault in creating the situation giving rise to the affray; (2) the defendant had a bona fide belief that he was in imminent danger of death or great bodily harm and that his only means of escape from such danger was in the use of such force; and (3) the defendant must not have violated any duty to retreat. See State v. Robbins, 58 Ohio St.2d 74, 79-80, 388 N.E.2d 755, 758 (1979). As a result of Senate Bill 175 a court or a jury will no longer be able to find that a defendant was not legally allowed to use deadly force to defend himself or another person in cases where the defendant had an opportunity to retreat but failed to avail himself or herself of that opportunity. Senate Bill 175 becomes effective on April 6, 2021. Courts have interpreted the duty to retreat to mean that a defendant on trial for having killed or injured someone, who was claiming self-defense, was required by law to establish that he or she attempted to escape before using deadly force. It often meant that the defendant on trial for shooting someone in self-defense had to prove that he or she could not have escaped from the situation without using deadly force. The current version of Ohio Revised Code 2901.09 states:

(B) For purposes of any section of the Revised Code that sets forth a criminal offense, a person who lawfully is in that person’s residence has no duty to retreat before using force in self-defense, defense of another, or defense of that person’s residence, and a person who lawfully is an occupant of that person’s vehicle or who lawfully is an occupant in a vehicle owned by an immediate family member of the person has no duty to retreat before using force in self-defense or defense of another.

This language reflects Ohio's “castle doctrine,” which became effective in 2008, and removed the duty to retreat in one’s home and automobile, or an immediate family member’s automobile. This was a significant change in the law, because it gave the benefit of the doubt to the defendant on trial in a use-of-deadly-force case. However, it was also limited because it did not apply to locations other than the defendant’s home and automobile, or an immediate family member’s automobile. Removing the duty to retreat in all self-defense cases effectively invokes the concept of the castle doctrine and applies it to every location outside of one’s home or car where one had a legal right to be. Here is how Ohio Revised Code 2901.09 will read as of April 6.

(B) For purposes of any section of the Revised Code that sets forth a criminal offense, a person has no duty to retreat before using force in self-defense, defense of another, or defense of that person’s residence, if that person is in a place in which the person lawfully has a right to be.

(C) A trier of fact shall not consider the possibility of retreat as a factor in determining whether or not a person who used force in self-defense, defense of another, or defense of that person’s residence reasonably believed that the force was necessary to prevent injury, loss, or risk to life or safety.

In addition to this language dealing with criminal actions, Senate Bill 175 is also relevant in civil cases where the defendant is being sued for having used deadly force. In a nutshell, if a person can legally be in a location, then that person has no duty to retreat before using deadly force to defend himself or herself, or another person. However, this does not change the standard for when the use of deadly force is legally justified. When a defendant is on trial for having used deadly force, in order to preclude a court or jury from acquitting the defendant based on self-defense, the State must establish that either of the following applies: (1) the defendant was at fault in creating the situation that gave rise to the use of deadly force, or (2) the defendant (or another person) was not in imminent danger of death or great bodily harm at the moment when the deadly force was used. Using deadly force in self-defense is only legally justifiable when a person has an honest and reasonable fear that he or she, or another person, is in immediate danger of either death, or great bodily harm. This fear must not only be reasonable from the defendant’s perspective, but it must also be considered reasonable by others in the community. The danger of death or great bodily harm must be imminent (immediate), meaning that the danger existed at the exact same time that the deadly force was used. The fact that Ohio law will no longer impose a duty to retreat does not in any way change any of the above. In the same way that the castle doctrine gives the defendant on trial in a use-of-deadly-force case the benefit of the doubt when he or she claims self-defense in his or her home or automobile, the elimination of a duty to retreat gives the defendant the benefit of the doubt when he or she claims self-defense in any other location. The State must prove that the defendant is guilty of a crime, and a court or jury cannot find that a defendant had no right to self-defense even if the court or jury believes that retreat might have been possible.

A New Obstacle In The Defense of Sex Crimes

2020-04-28T23:13:55Z

In State v. Jeffries 2020 Ohio 539, the Ohio Supreme Court placed another limitation on the ability of a Defendant to confront their accuser in the trial of a sex offense. In this case, the accuser reported that Jeffries had sexually abused her over a nine-year period. The child also reported that a foster brother had previously sexually abused her. At trial, the Defendant attempted to raise evidence of the previous sexual assault to demonstrate that the child had “knowledge of the system” and to show that her behavioral issues were not the result of an assault by the Defendant. Under Ohio’s Rape Shield Law, a Defendant with limited exceptions may not raise evidence of an accuser’s prior sexual activity. The defense argued that this prohibition applied only to consensual sexual activity. The Court held that the statute places a prohibition on the introduction of evidence as to both consensual and nonconsensual activity. This ruling places significant limitations on a Defendant’s ability to demonstrate that an accuser’s victimization in a prior sexual assault precipitated or contributed to their allegations against another. It is noteworthy that the Court did not rule on the defense’s argument that the Rape Shield Law is unconstitutional as a violation of due process and right of confrontation when it impairs a Defendant’s ability to provide relevant probative evidence about an accuser’s non-consensual sexual history. As a consequence, there may still be limited instances where an accused may be able to raise constitutional objections to the inability to present evidence of an accused’s nonconsensual sexual history. In any event, the Jeffries ruling places another roadblock in the defense of sexual assault cases.

Lack Of Miranda Warnings Is Not A Golden Ticket

2023-10-16T07:29:05Z

In some thirty years of criminal law practice I have had the opportunity to represent individuals accused of everything from a simple speeding ticket to capital murder. Practicing in municipal, state and federal courts throughout Ohio, I have been exposed to and litigated a large variety of criminal law issues. In this and upcoming blogs, I will comment upon issues which routinely confront individuals suspected of or accused of criminal wrongdoing. When following news coverage of the Boston Marathon bombings, I heard a great deal of commentary about whether law enforcement should have Mirandized Dzhokhar Tsarnaev following his apprehension. Probably fifty percent of the time, new clients come to my office following arrest, or confrontation with law enforcement, and they immediately proclaim that they were not Mirandized. They, like most individuals, are under the misconception that a failure to Mirandize them will somehow form the basis for a dismissal of their case.

Miranda – The Right to Remain Silent and Right to Counsel

The basic tenet of the Miranda decision is that an individual must be warned about their right to remain silent and right to counsel during a custodial interrogation. Failure of law enforcement to administer Miranda warnings prior to such interrogation will render any statements made inadmissible at trial.

What Is a Custodial Interrogation?

A custodial interrogation occurs when one is under arrest or when their liberty is restrained in any significant way. In determining whether one’s liberty was restrained, courts look to whether a reasonable person would have believed that they were free to leave. This is determined on a case-by-case basis. When an individual makes no statements, Miranda has no impact upon them. When statements are made in a non-custodial setting, Miranda warnings are not required.

Miranda Is Important but not Everything

Moreover, even in situations where an individual’s statements to police are “thrown out” by a court due to a failure to properly Mirandize them, such individuals can still be prosecuted based upon other evidence collected and derived in the case. Miranda is an important safeguard in any criminal interrogation and prosecution. However, it is not the pathway to a dismissal or the proverbial “get-out-of-jail-free” card that many people envision.