Ohio Supreme Court Issues Rulings On Uncommon Actions In Criminal Cases

October 18, 1998

How are we to react to actions that are beyond the boundaries of this familiar process?

Prosecutors, police officers, and public officials are familiar with the traditional process in criminal cases: preliminary hearings, grand juries, trials and appeals. Yet the laws affecting criminal cases are much broader than these traditional proceedings. How are we to react to actions that are beyond the boundaries of this familiar process? The Ohio Supreme Court has now provided some guidance.

Criminal Charges Brought By Private Citizens

In nearly all criminal cases, the initial complaint is filed by a prosecutor or police officer, and it has always been recognized that the prosecutor will make the final decision as to whether the case will be prosecuted. However, Ohio law also allows a private citizen to file with the court an affidavit to cause an arrest and prosecution. Can that private citizen force the prosecutor to prosecute?

In State ex rel. Evans v. Columbus Dept. of Law (September 23, 1998), Evans, a private citizen, filed criminal affidavits with the municipal court. He claimed that a probation officer had interfered with his civil rights, and that his estranged wife had committed the offense of falsification. The prosecutor decided not to prosecute those charges, so Evans petitioned the Court of Appeals for a writ of mandamus to force the prosecution of the charges. That case was also dismissed.

On appeal, the Ohio Supreme Court held that Ohio law does not place any duty upon prosecutors to prosecute misdemeanor charges brought by private citizens, and that "a prosecuting attorney will not be compelled to prosecute except when the failure to do so constitutes an abuse of discretion." The high court then found that the city prosecutor did not abuse her discretion in deciding that there was no probable cause that a crime had been committed.

Many private citizens want to have their personal grievances resolved in a criminal court. Some may file criminal affidavits and try to force a prosecution of their personal charges. Ohio's highest court has now ruled that they may not.

Convicts Forcing Police Officers To Reveal Old Evidence

Whenever a person is convicted of a serious crime, experienced prosecutors know that the case will never be finished. Prisoners will continue to file legal pleadings for as long as they are imprisoned. But can a convict force a police officer to produce old evidence?

In State ex rel. Flagner v. Arko (September 23, 1998), Flagner, a convicted murderer, petitioned the Court of Appeals for a writ of mandamus to force a police detective, Arko, into producing old evidence which might create some question about Flagner's guilt. The Court of Appeals denied that petition, and Flagner appealed to the Ohio Supreme Court.

On appeal, the high court decided that Flagner was not entitled to force additional evidence out of the investigating officer. First, the court held that the criminal discovery rule required the prosecutor, not the police officer, to reveal evidence of possible innocence, and that this rule was to be applied "prior to and during trial," not many years after the conviction. The court then found that the prosecutor had revealed all evidence of possible innocence prior to trial, and that Flagner failed to establish that anything had been held back. Finally, the high court held that Flagner was not entitled to Arko's investigative records under the public records law because records which are subject to the criminal discovery rule are not covered by the public records law.

Prosecutors must still cope with endless court filings from such offenders for as long as they are in prison. But police officers can now take comfort in knowing that there is a limit on the extent to which they can be dragged into this process.

The Sexual Predator Law

On January 1, 1997, most of Ohio's sexual predator law went into effect. Since then, many Ohio courts have ruled on whether or not that law is constitutional, and the United States Supreme Court has issued rulings on such laws in other states. But the Ohio Supreme Court remained silent ... until now.

In State v. Cook (September 30, 1998), the Ohio Supreme Court held that Ohio's sexual predator law does not violate the Ex Post Facto Clause of the United States Constitution, nor does it violate the Retroactivity Clause of the Ohio Constitution. Numerous appeals had been filed on these grounds because the law, which requires registration of sexual predators and community notification of their presence, can be applied to offenders convicted before its effective date. The high court found that the registration requirements were only a minimal burden on those offenders, that community notification served only to collect and broadcast truthful information, and that none of these provisions were designed to further punish the offender. Appeals are now being filed on other constitutional issues, but we can all feel a little safer, knowing that our law is still in effect.

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