Franklin County Criminal Law Casebook
Reproduced with permission from
David L. Strait and the Franklin County Public Defender Office
ADMISSIONS AND CONFESSIONS
Also see Corpus Delicti;
Counsel, Right To; Arrest;
Admissions in general
Other circumstances surrounding interrogation
Waiver of rights
right to counsel or to remain silent
Police informants and agents
Post arrest silence
Suppression hearing issues
Evidence Rule 104 -- Preliminary Questions. [(1) Admissibility of a
confession to be determined out of the
hearing of the jury. (2) Testimony by the
defendant as to a preliminary matter does not subject him to
cross examination as to other issues in the case.]
Evidence Rule 801(D) -- Statements which are not hearsay.
Evidence Rule 804(B)(3) -- Statement against interest.
Admissions in general
State v. Poole,
185 Ohio App. 3d 38,
2009-Ohio-5634 – Generally a court must advise a codefendant who has not
pleaded guilty of their privilege against self-incrimination before they
testify. Otherwise such advisement is within the court’s discretion. Couple’s
car was stopped, drugs were found on their persons, and both were charged.
Girlfriend pled. At her boyfriend’s trial she testified that the coat he was
wearing was hers, as were the drugs in a pocket. He was acquitted. Subsequently
she was charged. Trial court ruled she should have been Mirandized
before she testified. Reversed. Having pled guilty she was no longer a
codefendant. She retained a privilege against self-incrimination, but not as a
codefendant. Court did not abuse its discretion by failing to provide
advisement. Dissenting judge believes further prosecution is a double jeopardy
violation as original indictment encompassed complicity in possession of all
drugs found in the car and on the boyfriend.
v. Johnson, 163 Ohio App. 3d 132,
2005-Ohio-4243 -- Juvenile admitted to a
homicide when interviewed by an employee of a mental health agency that
indirectly received federal funds.
Statements relating to alcohol or drug abuse in such circumstances would have to
be suppressed under federal statutes, but admission to the homicide was not
Nor was the admission coerced or obtained in violation of Fifth or Sixth
Amendment rights. But further
admissions to his juvenile court probation officer without Miranda warnings were
Hopfer (1996), 112 Ohio App.
3d 521, 538 -- A admission includes any statement made by a party in his
individual capacity and offered
against that party at trial. A confession is an admission of guilt, and not
merely an admission of a fact or circumstance from which guilt may be inferred.
Thompson (1993), 87 Ohio App.
3d 570, 576-578 -- Tape of defendant arranging an uncharged drug deal was
properly admitted. Test was not
whether tape was a prior inconsistent statement pursuant to Evid. R. 613(B), but
rather whether it was relevant as the admission of a party-opponent pursuant to
Evid. R. 801(D)(2). Furthermore, under that rule, the statement need not be a
confession or against the party's interest, though it must be relevant.
States v. Barletta (1st Cir.
1981), 652 F. 2d 218, 219 -- A party's own statements, whether inculpatory or
exculpatory, are admissible
as non hearsay pursuant to Fed. Evid. R. 801.(d)(2). Also see United States
(1973), 415 U.S. 164, 172
Slone (March 25, 1975),
Franklin Co. Case No. 74AP-577, unreported (1975 Opinions 642) -- Defendant's
testimony at previous trial may be read at subsequent trial. Compare In re
Neff (1953), 206 F. 2d 149, annotated at 36 A.L.R. 2d 1403. (Fifth Amendment
privilege not waived for purposes of trial because defendant testified before
the grand jury.) Also see Harrison v. United States (1968), 392 U.S. 219;
Smith v. Slayton 369 F. Supp. 1213.
Simmons v. United States (1968), 390 U.S. 377, 389-394 -- When a defendant
testifies at a pretrial hearing on a motion to suppress evidence on Fourth
Amendment grounds, his testimony may not be admitted against him at the
Gatewood (1984), 15 Ohio App.
3d 14 -- A party may not use Evid. R. 801(D)(2) to introduce his own prior
statement. Also see State v. Brown
(1981), 3 Ohio App. 3d 131, 138. Compare State v. Sprawl (1982), 3 Ohio
App. 3d 406 -- Headnote: "A statement made by a defendant to police at the time
of his arrest is admissible under Evid. R. 801(D)(1)(b) where the statement
is consistent with the defendant's testimony at trial and is offered to rebut an
express or implied charge against him that such testimony was of recent
Riggins (1986), 35 Ohio App.
3d 1,4 -- Party seeking to admit a declaration against interest bears the burden
of proving the declarant unavailable.
Stated v. Alker (3d Cir.
1958), 255 F. 2d 851 -- A statement made in the presence of the defendant under
such circumstances as would have required a denial of its correctness had it
been untrue may be admissible as an "admission by adoption." See Evid. R.
Poole (1976), 50 Ohio App. 2d
204 -- When a defendant has listened to the taped confessions of accomplices and
acknowledged what they said to be true, their statements become his own
confession by adoption or ratification.
v. Hanshue (1895), 53 Ohio St.
482 -- A statement authorized by a party is a statement of that party. See Evid.
R. 801(D)(2)(c). Also see United States v. McKeon (2nd Cir. 1984), 738 F.
2d 26 (Limited use of defense counsel's contradictory assertions in opening
statement at previous trial.)
Billings (1995), 103 Ohio App.
3d 343 -- Statement by attorney to officer in defendant's presence, concerning
defendant's whereabouts at time of incident, construed as an admission.
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Florida v. Powell
(2010), 130 S.Ct. 1195 – Miranda advisements that the defendant had the
right to speak with counsel before answering questions, and further could
exercise his rights at any time during the interview, had been construed by the
Florida Supreme Court to suggest that the suspect did not have the right to have
counsel in the room during interrogation. Reversed. The advice conveyed the
proper message and satisfied Miranda.
State v. Hale, 119
Ohio St. 3d 118,
2008-Ohio-3426, ¶31-34 – Personal history may be taken as a part of routine
booking procedures without administering Miranda warnings. Miranda warnings are
not ineffective because they were given after such information was obtained.
Missouri v. Seibert
(2004), 124 S.Ct. 2601 -- The Miranda may not be circumvented by use of a
question-first strategy, whereby a suspect is first questioned without warnings,
then, after a pause, is warned and induced to repeat earlier admissions.
United States v. Patane
(2004), 124 S.Ct. 2620 -- The remedy for a Miranda
violation is suppression of statements.
The prosecution may used physical evidence seized as the result of an
unwarned voluntary statement.
v. Farris, 109 Ohio St. 3d 519,
2006-Ohio-3255 -- Continued detention of speeder
was justified based on slight odor of burnt
marijuana. Questioning in the
front seat of a cruiser was custodial.
Pre-Miranda admissions were not rendered admissible by repetition following
Under the Ohio Constitution, evidence found in trunk is suppressible.
Without admissions, probable cause for search of the car reached the
interior but not the trunk. Also see State v. Coston,
168 Ohio App. 3d 278,
Oregon v. Mathiason (1977), 429 U.S. 492, 495 -- "...(P)olice officers are
not required to administer Miranda
warnings to everyone whom they question." Also see State v. Lynch, 98
Ohio St. 3d 514,
2003-Ohio-2284, ¶ 47.
Dickerson v. United States
(2000), 120 U.S. 2236 -- Miranda is constitutionally based and may not be
overruled by an act of Congress. Court refuses to overrule Miranda as it has
become embedded in routine police practice to the point where the warnings have
become a part of our national culture.
Goff, 154 Ohio App. 3d 59,
2003-Ohio-4524, ¶ 14-17 -- Error in obtaining statements in violation of
Miranda is mooted by the state not using those statements at trial.
v. Ramirez (1999), 135 Ohio App. 3d 89 -- Murder suspect spoke only Spanish.
Miranda warnings were given through the use of a translator, who had seven
quarters of college Spanish and had lived in Mexico for six months. She worked
from an English language advice card and made syntax errors, as demonstrated by
a defense language expert. The warnings were also incomplete and there was no
advice of the right to have the Mexican Consul present during questioning.
State v. Ramirez-Garcia
(2001), 141 Ohio App. 3d 185 -- Translator was born in Nicaragua, taught
conversational Spanish at Miami University, and provided a sufficient
translation of Miranda rights. Defendant had already indicated in English
that he understood at least some of his rights. Suppression not required.
Probably didn't help that on the way to the station that he told officers,
in English, that he had to kill the victim and offered to show them the gun.
State v. Hill (2000), 136 Ohio App. 3d 636 -- A detective testified that
during questioning the defendant said: "You do what the fuck you have to,
I'm not saying anything." This was tantamount to a Doyle violation. It was
plain error to permit the prosecutor to argue or present evidence concerning
matters following the assertion of the right to remain silent.
Semi-reversed: State v. Hill (2001), 92 Ohio St. 3d 191 -- Syllabus:
"When a court of appeals engages in a plain-error analysis, it must conduct
a complete review of all relevant assignments of error in order to determine
whether a manifest miscarriage of justice has occurred that clearly affected
the outcome of the trial." Case remanded for consideration of assignments of
error previously treated as moot, then weighing whether the error was
Person, 167 Ohio App. 3d 419,
2006-Ohio-2889 -- The notion that a Doyle violation may be
excused as a single isolated reference does not give the
prosecutor one free violation of the defendant's Fifth Amendment
rights. Such a violation can be found harmless beyond a
reasonable doubt only when there is overwhelming evidence of
Leach, 150 Ohio App. 3d 567,
2002-Ohio-6654 -- At ¶ 19: "The expressed desire to speak to an attorney before
further speaking to a police officer invokes a defendant's Fifth Amendment right
to remain silent, and a comment on the request to speak to an attorney is a
comment on the defendant's right to remain silent." Court finds error in the
prosecutor's substantive use of the defendant's prearrest invocation of rights.
Admission of Miranda form was also improper. Cumulative error leads to
reversal. Affirmed: State v. Leach, 102 Ohio St. 3d
2004-Ohio-2147 -- Syllabus: "Use of a defendant's pre-arrest silence as
substantive evidence of guilt violates the Fifth Amendment privilege against
self-incrimination." Opinion sets up an analytical grid: pre-arrest/post arrest;
pre-Miranda/post-Miranda; substantive evidence/impeachment. Also see
v. Perez, Defiance App. No. 4-03-49,
v. Causey (2001), 144 Ohio App. 3d 709 -- Majority finds defendant's
statement "you have no witnesses" to be an unexpected response during the taking
of booking information. Dissenting judge finds experienced FBI agent was
tweaking the defendant, trying to goad him into making an incriminating
Spellman, Champaign App. No.
2003-Ohio-5531 -- (1) No abuse of discretion in proceeding on an
untimely motion to suppress where the prosecutor indicated he was ready to
proceed. (2) Custody was established where the interview room door was plainly
locked and videotape made it clear the defendant was aware of that fact. (3)
Suppression upheld where video did not include the defendant's withdrawal of a
prior demand for counsel, court did not accept officer's testimony that the
demand was withdrawn, and waiver form was not signed until after claimed
incriminating statements had been made.
v. Illinois (1964), 378 U.S.
478 -- When a police investigation is no longer a general inquiry into an
unsolved crime, but has begun to focus on a particular suspect, in police
custody, who has been refused an opportunity to consult with counsel and who has
not been advised of his right to remain silent, he has been denied his right to
counsel under the Sixth and Fourteenth Amendments, and any statements thus
obtained may not be used against him at trial. Also see
v. Arizona (1966), 384 U.S.
436 -- Statements of the accused obtained as a result of a custodial
interrogation may not be used at trial unless the suspect has been properly
advised of his rights. If at any time the individual indicates he wishes to
remain silent or speak with counsel, interrogation must cease. When an
interrogation is conducted without counsel being present, the prosecution bears
the heavy burden of showing the defendant knowingly and intelligently waived his
right to counsel.
Buchholz (1984), 11 Ohio St.
3d 24 -- Syllabus: "Miranda
warnings must be given prior to any custodial interrogation regardless of
whether the individual is suspected of committing a felony or misdemeanor. (State
v. Pyle, 19 Ohio St. 2d 64, paragraph two of the syllabus, overruled.)"
Holt (1997), 132 Ohio App. 3d
601 -- Juvenile in custody for a separate offense was questioned, initially as a
witness, concerning a homicide. Miranda
warnings held to be required any time a person is in custody, whether as a
suspect or otherwise. Court relies on Mathis v. United States (1968), 391
U.S. 1 holding warnings were required when IRS agents questioned a state
v. McCarty (1984), 468 U.S.
420 -- Roadside questioning of motorist as a part of routine traffic stop does
not require Miranda warnings but custodial interrogation at station after
arrest does. Also see Pennsylvania v. Bruder 488 U.S. 9; Pennsylvania
v. Muniz (1990), 496 U.S. 582.
Island v. Innis (1980), 446
U.S. 291, 300-301 -- "We conclude that the Miranda
safeguards come into play whenever a person in custody is subjected to either
express questioning or its functional equivalent. That is to say, the term
'interrogation' under Miranda refers not only to express questioning, but
also to any words or actions on the part of the police (other than those
normally attendant to arrest and custody) that the police should reasonably know
are likely to elicit an incriminating response from the suspect." Also see
State v. Williams (1983), 6 Ohio St. 3d 281, 289-291. Compare Arizona v.
481 U.S. 520 -- Open taping of conversation between defendant and his wife (at
her insistence) not the equivalent of interrogation. Defendant told her not to
answer questions until consulting with lawyer. Tape was used to rebut claim of
California v. Prysock (1981),
453 U.S. 355 -- There is no specific language which must be used in advising a
person of his Miranda rights. Also see Duckworth v. Egan (1989),
492 U.S. 195.
Kentucky (1986), 476 U.S. 683
-- If the court overrules a motion to suppress statements, the defendant is
still entitled to introduce testimony concerning circumstances under which
statement was made, as this also goes to credibility. Also see State v.
Bailey (1993), 90 Ohio App. 3d 58, 68-71.
v. Kassow (1971), 28 Ohio St.
2d 141 -- Prior to any use of a defendant's statement made while in custody, the
state has the burden of showing that the statement was made voluntarily within
the context of Miranda.
v. New York
(1970), 401 U.S. 222 -- On cross-examination, the defendant may be impeached
using his own statement which was otherwise inadmissible because of
Miranda defects, provided the statement is otherwise trustworthy (i.e.
not coerced). Also see Oregon v. Haas (1975), 420 U.S. 714; State v.
Butler (1969), 19 Ohio St. 2d 55, paragraph two of the syllabus.
v. Elstad (1985), 470 U.S. 298
-- Subsequent confession received after proper Miranda warnings may be
admissible notwithstanding earlier and improperly obtained confession, provided
first confession was not coerced.
Johnson (1996), 106 Ohio App.
3d 38 -- Error to permit prosecutor to ask unrepresented juvenile if he would
stipulate prior conviction without first advising him of his Miranda
v. Smith (1981), 451 U.S. 454
-- The Fifth Amendment extends to statements made to an examiner at a court
ordered psychiatric evaluation to determine competency to stand trial, and to
the use of any statements obtained, at either the guilt or penalty phase of a
death penalty prosecution. For statements to be used, Miranda warnings
must have been given. Note that
R.C. 2945.38(J) states: "No statement made by a
defendant in an examination or hearing relating to his competence to stand trial
shall be used in evidence against him on the issue of guilt in any criminal
Bolan (1971), 27 Ohio St. 2d
15 -- Civilian store security personnel are not required to give Miranda
warnings. Also see State
(1986), 29 Ohio App. 3d 279; State v. Ferrente (1985), 18 Ohio St. 3d 106
(lottery commission security officers are not law enforcement officers).
v. Quarles (1984), 467 U.S.
649 -- There is a narrow "public safety" exception to the requirement of
warnings, which allows some questions necessary to secure the safety of the
public or the arresting officers and not directed to obtaining testimonial
evidence from the suspect.
Lackey (1981), 3 Ohio App. 3d
239 -- In connection with a Terry
stop and frisk, for his own protection, officer may ask suspect where the weapon
is without giving Miranda warnings.
Schneckloth v. Bustamonte
(1972), 412 U.S. 218 -- Miranda warnings are not required to validate a consent
search when defendant is not in custody.
Austin (1977), 52 Ohio App. 2d
59 -- Miranda warnings are not required to validate a consent search when
defendant is in custody. Also see United States v. Garcia (5th Cir.
1974), 496 F. 2d 670, 673.
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J.D.B. v. North Carolina (2011), 131 S.Ct. 2394 –
Determining whether the accused was in custody when questioned turns on an
objective assessment of (1) the circumstances surrounding the interrogation, and
(2) whether a reasonable person would believe he or she was at liberty to end
questioning and leave. A child’s age is to be taken into account making this
assessment. Thirteen year old was taken out of class to a conference room where
a uniformed officer and a school administrator questioned him for at least 30
Maryland v. Shatzer (2010), 130 S.Ct. 1213 – Inmate
exercised his Miranda rights in 2003 and was returned to the prison
population. Three years later he was questioned by a different detective, waived
his rights and incriminated himself. Elaborating upon Edwards v. Arizona (1981), 451 U.S. 577, a break in custody of fourteen
days or more resets the clock for further interrogation. This is viewed as time
enough following the termination of the Miranda custody for its
lingering effects to dissipate. Even though the defendant remained in prison,
there was a break in Miranda custody.
State v. Porter, 178 Ohio App. 3d 304,
2008-Ohio-4627 – Jail inmate was suspected of concealing drugs on her
person. Pat down revealed a foreign object in the area of her crotch, but she
would not cooperate in removal leading to completion of paperwork for a strip
search, then the search. Still no evidence was recovered. A detective told the
defendant he was going to obtain a warrant for a body cavity search and that
unless she cooperated she would be charged to the full extent of the law. Again
she refused. While waiting for the warrant to issue the defendant contacted the
detective and agreed to hand over drugs. She was not Mirandized until questioned
again the following day. (1) For the interrogation of an inmate held on another
offense to be custodial there must be a change in the surroundings of the
prisoner that result in an added imposition on freedom of movement. That existed
here. Statements made before eventual Miranda warnings must be suppressed. Also
see Cervantes v. Walker (9th Cir. 1978), 589 F.2d
412; United States v. Cooper (4th Cir. 1986), 800
F.2d 412; State v. Bradley (Sept. 22, 1987), Scioto
App. No. 1583; State v. Swinney (July 15, 1989),
Pickaway App. No. 87CA41. (2) Prior statements do not taint later statements
because they were not the product of what was in effect a continuous
interrogation process and the fruit of the poisonous tree doctrine does not
apply. (3) Because the initial yielding up of the drugs was the product of a
coerced confession, the drugs must be suppressed. Plain error found. (4)
Inevitable discovery does not apply because the effort to obtain a warrant for a
body cavity search was tainted by the illegality of the coercion.
In re D.F., 193 Ohio App.3d 78,
2011-Ohio-1004 – Juvenile in detention center made statements during initial
on the spot investigation of a situation Miranda warnings were nor
required unless there was a greater than usual restriction of the juveniles
freedom of movement within the institutional setting.
State v. Hatten, 186 Ohio App. 3d 286,
2010-Ohio-499, ¶46-59 – Statements made by the defendant at the door to his
house to officers’ investigating a rape were not custodial. “I’m gonna talk to a
lawyer” was not an unequivocal demand for an attorney. Though the defendant was
detained in a cruiser while a search warrant was obtained, no further statements
were made during this time.
State v. Chrzanowski, 180 Ohio App. 3d 324,
2008-Ohio-6993 – Officer first saw car stopped partially blocking a traffic
lane, but by the time he turned around and went back to check the car had pulled
into a driveway. Majority decides parking the cruiser to block the driveway did
not amount to taking the driver into custody, thus requiring Miranda warnings.
Yarborough v. Alvarado
(2004), 124 S.Ct. 2140 -- Custody for Miranda purposes is determined objectively, looking to the
surrounding the interrogation, and whether a reasonable person would have felt
free to end the interview and leave.
Applying AEDPA, state court conclusion that juvenile was not in custody was
(2003), 123 S.Ct. 1843 -- Teenager was taken from his bedroom to police
headquarters in the middle of the night, in hand cuffs and wearing only his
underwear. Absent probable cause, this was an illegal arrest.
warnings, subsequent confession was fruit of the poisonous tree. Opinion
summarizes prior case law regarding when a seizure occurs.
v. Salvatore, Franklin App. No. 02AP-573,
2003-Ohio-957 -- (1) Trial court
properly found subject was in custody when she was being held in a secure
portion of a mental hospital and was questioned by investigators authorized to
be inside the facility. (2) History and nature of mental illness, medication,
brevity of Miranda warnings, and termination of a prior interview
supported the conclusion that the subject was not competent to waive her Miranda rights.
v. Pies (2000), 140 Ohio App. 3d 535 -- While the initial detention of the
suspect in the back of a cruiser while running license check was OK, continued
detention and a demand to know what he had been doing became custodial
interrogation. License and pat down had already turned up nothing to justify
continued detention. Subsequent consent search of car not found to be an
independent act of free will.
v. Moore (2000), 140 Ohio App. 3d 278 -- When physician informed mother her
daughter was dead, mother explained how her injuries had been incurred. Police
officer was in the room, but asked no questions. Custody is not established so
Miranda warnings were not required.
Akron v. Sutton (2000), 106 Ohio Misc. 46 -- Trial court refuses to
construe police department's preferred arrest policy as rendering custodial
questioning by an officer responding to a domestic violence situation.
State v. Springer (1999), 135 Ohio App. 3d 767 -- After recanting the
claim she had been raped, defendant was convicted of falsification. Miranda
warnings were not required at the time she was asked by the sheriff to tell
the truth about what happened as she was being treated as a victim and was
not in custody.
River v. Saleh (2000), 139 Ohio App. 3d 313, 320-321 -- Officer told
motorist he had been pulled over because computer check of plates indicated he
had no driving privileges. Defendant gave his name and said he had no license
before any questions were asked. Defendant deemed not in custody.
v. Thoman, Franklin App. No.
2005-Ohio-898 -- Statement made to a caseworker, who was not acting as
an agent of the police, was not custodial.
Stansbury v. California
(1994), 511 U.S. 318, 323 -- "Our decisions make clear that the initial
determination of custody depends on the objective circumstances of the
interrogation, not on the subjective views harbored by either the interrogating
officers or the person being questioned." At p. 325: "An officer's knowledge or
beliefs may bear upon the custody issue if they are conveyed, by word or deed,
to the individual being questioned."
(1995), 516 U.S. 99 -- Issue of custody for Miranda
purposes is a subject for independent review by an appellate court.
(C.A.D.C. 1967), 382 F. 2d 158 -- Interrogation is not "custodial" merely
because it took place at the police station.
States v. Jonas (5th Cir.
1981), 639 F. 2d 200, 203 -- Fifth Circuit applies a four part test to determine
whether interrogation was custodial: "(1) Whether probable cause for arrest had
arisen; (2) whether the officer intended to hold the defendant; (3) whether the
defendant believed that his freedom was significantly restricted; and (4)
whether the investigation focused on the defendant."
Barker (1978), 53 Ohio St. 2d
135 -- In the context of determining whether interrogation was custodial, arrest
is said to depend on four requisite elements: "(1) An intent to arrest, (2)
under real or pretended authority, (3) accompanied by an actual or constructive
seizure or detention of the person, and (4) which is so understood by the person
arrested." (Syllabus, paragraph one.)
Thompson (1995), 103 Ohio App.
3d 498, 502-503 -- Interrogation was custodial, even though defendant was
expressly told he was not under arrest, where: (1) defendant believed he would
be arrested and taken to jail if did not cooperate by agreeing to search and
accompanied officers to station for questioning; (2) defendant was not told he
was free to leave during questioning; (3) police had seized defendant's car keys
and cash, leaving him dependent on them for ride home; and (4) defendant had
health problems and expressed concern about need for an insulin shot.
Wilson (1991), 76 Ohio App. 3d
519 -- Interrogation held custodial where armed officers entered social hall
rented by two fraternities, ordered occupants to freeze and raise their hands,
then proceeded to check ID's, detaining those who were under age for questioning
as to whether they had consumed alcoholic beverages.
Peeples (1994), 94 Ohio App.
3d 34, 40-43 -- Determination whether questioning in a prison setting was
custodial focuses on the coercive effect of the circumstances and added
restriction on the subject's movements.
Rossiter (1993), 88 Ohio App.
3d 162 -- Interrogation in cruiser, conducted by two officers and focusing on
the guilt of the person questioned, was properly found to be custodial.
Furthermore, it was clear that the mildly mentally retarded defendant did not
make a proper waiver of his Miranda
rights, and it is doubtful whether he even understood those rights.
Wilson (1986), 31 Ohio App. 3d
133 -- Defendant was restrained of his freedom in a significant way, making the
interrogation custodial, after appearing voluntarily for polygraph, but then
being told to complete test after he had indicated his desire not to do so.
Waibel (1993), 89 Ohio App. 3d
522 -- Interview of college student in cruiser was non custodial where he was
told he was not under arrest, he was not handcuffed, and weapons were not
Chism (1993), 92 Ohio App. 3d
317 -- Questioning in cruiser was not custodial where there was no suspicion
that the defendant had engaged in wrongdoing before admissions were made.
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Other circumstances surrounding interrogation
State v. Jenkins,
192 Ohio App. 3d 276,
2011-Ohio-754 – Arrestee was concerned about going into heroin withdrawal.
Officer’s remarks concerning getting help rendered waiver or rights involuntary.
Among the misrepresentations was the possibility of intervention in lieu of
conviction, which was not available for the third degree felony the defendant
State v. Colquitt, 188 Ohio App. 3d 509,
2010-Ohio-2210 – Highway Patrol officer investigating the flow of drugs into
Chillicothe Correctional Institution had an administrative employee bring the
defendant, an inmate, to a room for questioning. Defendant invoked his right to
counsel. Officer left, but employee remained. Admissions followed. Motion to
suppress properly granted. The employee was an agent of the state, or
alternately of the officer. All questioning should have stopped.
In re J.C., 173
Ohio App. 3d 405,
2007-Ohio-5763 – Juvenile was in custody and being questioned about an
alleged rape. Only after he acknowledged knowing the victim did the officer
interrupt interrogation to give Miranda warnings. Trial court suppressed.
Reversed. The trial court failed to address whether midstream Miranda warnings
were effective enough to accomplish their object. Coercion may not be presumed.
Missouri v. Seibert (2004), 542 U.S. 600, calls for
assessment of the completeness and detail in the initial round of questioning,
overlapping content, timing and setting, continuity of police personnel, and the
degree to which the questions treated the second round as a continuation of the
Fellers v. United States (2004),
124 S.Ct. 1019 -- After an indictment was returned, and an arrest warrant
issued, officers obtained incriminating statements from the defendant at his
home without first providing Miranda warnings.
Admissions were repeated at the jailhouse after
warnings were given.
The Sixth Amendment requires suppression of the statements obtained at
the house as they were deliberately elicited in the absence of counsel after
judicial proceedings had been initiated.
Remanded for determination whether the jailhouse statements were the fruit of
v. Lynch, 98 Ohio St. 3d 514,
2003-Ohio-2284, ¶ 54-61 -- Low intelligence and police deception are factors to
be weighed in determining the
voluntariness of a statement. But so are level of functioning and benign
treatment by officers during
questioning. Also see State v. Hughbanks, 99 Ohio St. 3d 365,
2003-Ohio-4121, ¶ 62: Police officers were not required to consult a
psychiatrist to determine statements were the product of free will.
Goins (1999), 137 Ohio App. 3d 158 -- Eleven year old's mother was present
when waiver was signed, but not when statement was made. Absent substantial
credible evidence of coercive police conduct, confession should not have been
suppressed. A juvenile has no right to have a parent resent during questioning.
"The Fifth Amendment is not concerned with moral and psychological pressures
emanating from sources other that official coercion."
v. Sneed, 166 Ohio App. 3d 492,
2006-Ohio-1749 -- Before being
Mirandized the defendant acknowledged he had
thrown a gun in the bushes after an auto accident.
Afterwards he made additional statements establishing he had carried the
gun concealed on his person. The
initial statements were admissible under the public safety exception.
The later statements are deemed not to be the product of a "question
first" strategy as the defendant had not been asked the same questions before
v. North Carolina (1985), 474
U.S. 25 -- Even though a confession may be voluntary in the sense that Miranda warnings were given and understood, a confession may still be
suppressible as the product of an illegal arrest.
Illinois (1975), 422 U.S. 590
-- Statement obtained as the product of an illegal arrest is not per se
admissible based on use of Miranda
warnings before statement was obtained. Must be shown that statement is
sufficiently the product of free will purge the taint of the Fourth Amendment
violation. Also see Wong Sun v. United States (1963), 371 U.S. 471.
v. New York (1979), 442 U.S.
200, 217-219 -- In determining whether a confession is inadmissible because it
was the product of an unlawful arrest, a court is to consider the temporal
proximity of the arrest and the confession, the presence of intervening
circumstances, and in particular, the purpose and flagrancy of the official
v. Alabama (1982), 457 U.S.
687 -- Notwithstanding Miranda warnings having been given, a confession
obtained through custodial interrogation following an illegal arrest (not based
on probable cause) must be suppressed unless intervening events break the causal
connection between the arrest and the confession so that the confession is
sufficiently an act of free will to purge the primary taint.
v. Harris (1990), 495 U.S. 109
-- When police had probable cause to arrest defendant, but made an illegal entry
into his home to take him into custody, the exclusionary rule does not apply to
statement made after proper Miranda
warnings either outside his home or at the station.
v. Williams (1977), 430 U.S.
387 -- When the unwillingness to make a statement in the absence of counsel had
been established, manipulation of defendant by means of "Christian burial
speech" did not render statement voluntary.
Luck (1984), 15 Ohio St. 3d
150 -- Motion to suppress statement for denial of right to counsel properly
sustained when a police officer elicits statements from the defendant after (1)
refusing to allow an attorney, retained pursuant to the defendant's request, to
speak to the defendant on the telephone, (2) failing to inform the defendant
either of the attorney's retention by her husband or of the attorney's telephone
calls to the police station on her behalf, and (3) assuring the defendant's
attorney that the police will not talk to or interrogate the defendant. Compare
Moran v. Burbine (1986), 475 U.S. 412.
Roberts (1987), 32 Ohio St. 3d
225 -- Syllabus: "Statements by an in-custody probationer to his probation
officer are inadmissible in a subsequent criminal trial, where prior to
questioning, the probation officer failed to advise the probationer of his Miranda rights as required by Section 10, Article I of the Ohio Constitution
and by the Fifth and Fourth Amendments to the United States Constitution."
Gallagher (1974), 38 Ohio St.
2d 291 -- "Testimony as to utterances made by an accused to his parole officer
is inadmissible at trial where the utterances were in response to questions by
the parole officer, and prior to the questioning, the parole officer failed to
advise the accused of his right to remain silent, of his right to be provided
with counsel prior to questioning, and warn him that any utterance may be used
as evidence against him." Further explained, but not modified: State v.
Gallagher (1976), 46 Ohio St. 2d 225.
Minnesota v. Murphy (1984),
465 U.S. 420 -- Interrogation by probation officer when probationer was a
suspect, but had not been charged, was not custodial and admissions could be
Cossin (1996), 110 Ohio App.
3d 79 -- Statement made to probation officer without Miranda warnings was
admissible in revocation proceedings. Statements would not be admissible in new
criminal proceedings. Also see Minnesota v. Murphy (1984), 465 U.S. 420.
Brown (1993), 91 Ohio App. 3d
427 -- Interrogation took place in a Department of Human Services office under
the threat that the child would be removed from the home if the parents did not
cooperate, and was largely conducted by a 6'5", 330 pound police sergeant whose
physical proximity cause the defendant to express discomfort at one point.
Circumstances were so coercive that it was not error for the trial court to have
found interrogation to be custodial, despite representation that the defendant
could leave or refuse to answer questions. Also see State v. Torres
(1990), 67 Ohio App. 3d 268.
Uhler (1992), 80 Ohio App. 3d
113 -- Presence of deputy during interview at Children Services office did not
render interrogation custodial.
Tucker (1998), 81 Ohio St. 3d
431 -- Defendant with background of mental illness appeared distressed while
watching news coverage of codefendant's trial. Deputies took him to another
room, when he said he might plead guilty, then gave details of the homicide.
Applying Rhode Island v. Innis (1980), 446 U.S. 436, this is held not to
be the functional equivalent of interrogation. Statements were admissible though
no Miranda warnings were given. See dissent.
Arrington (1984), 14 Ohio App.
3d 111 -- Headnote 2: "Where an accused's decision to speak was motivated by
police officers' statements constituting 'direct or indirect promises' of
leniency or benefit and other representations regarding the possibility of
probation which were misstatements of the law, his incriminating statements, not
being freely self-determined, were improperly induced, involuntary and
inadmissible as a matter of law." But see Hutto v. Ross (1976), 429 U.S.
28 and State v. Blackwell
(1984), 16 Ohio App. 3d 100 concerning admissibility of statements made during
actual plea negotiations.
v. Fields (1982), 459 U.S. 42
-- If a defendant has waived the right to have attorney present at polygraph
examination, and it is clear he understood his rights to stop questioning or to
speak with attorney at any time, Miranda
rights do not have to be repeated before questioning him about the results of
the polygraph. Compare United States v. Jackson (8th Cir. 1982), 690 F.
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Waiver of rights issues
Berghuis v. Thompkins (2010), 130 S.Ct. 2250 –
Defendant was given his Miranda rights, did not sign a waiver, and
remained silent through most of a three hour integration. At one point he
responded yes to an incriminating question. Invocation of right to counsel
requires interrogation cease, but waiver is not needed for it to proceed.
Prolonged silence is not taken as an assertion of the privilege. Voluntary
statement is an implied waiver, provided warnings were given and understood.
State v. Lather, 110 Ohio St. 3d 270,
2006-Ohio-4477 -- A waiver of
Miranda rights may be inferred from the totality of the circumstances without an explicit waiver.
Circumstances here included age, education, a prior criminal record and the recent signing of a waiver form in another investigation.
State v. Streeter, 162 Ohio App. 3d 748,
2005-Ohio-4000 -- Defendant initialed a waiver form next to each of the enumerated rights and acknowledged he had been advised and understood those
rights. He did not sign the waiver line, but later answered questions from a holding cell.
Waiver held knowing and voluntary, though it was not express.
State v. Lather, Sandusky App. No. S-03-008,
2005-Ohio-668 -- Defendant was arrested and taken to his apartment
to be present during execution of a search warrant. He was given some Miranda advice, but was not asked if he understood or waived.
Statements must be suppressed. An understanding of rights may not be presumed.
Tague v. Louisiana (1980), 444 U.S. 469, followed.
Carolina v. Butler (1979), 441
U.S. 369 -- An explicit statement or signed form stating that Miranda
rights are waived is not essential.
Waiver may be inferred from all of the facts and circumstances. Also see State v. Scott
(1980), 61 Ohio St. 2d 155, 161;
Jones (1974), 37 Ohio St. 2d
21 -- Syllabus: "Where a suspect, after being fully apprised of his rights under
Miranda v. Arizona, 384 U.S. 436, indicates an understanding of those
rights, but subsequently acts in such a way as to reasonably alert the
interrogating officer that the warnings given have been misapprehended, the
officer must, before any further questioning, insure that the suspect fully
understands his constitutional privilege against self-incrimination, as
described in Miranda, supra." (Defendant refused to sign waiver
form until he spoke with his attorney, but then talked to the detective until
notes were taken.) Also see State v. Parker (1975), 44 Ohio St. 2d 171.
(Defendant refused to sign waiver.)
v. LeFevre (2nd Cir. 1979),
611 F. 2d 19 -- Failure to inform arrestee, or to ascertain that he knew he had
been indicted, rendered waiver of rights involuntary. Compare Patterson v.
Illinois (1988), 487 U.S. 285 (No violation of Sixth Amendment right to
counsel where defendant made statement after being informed of indictment and
given Miranda warning.)
v. Spring (1987), 479 U.S. 564
-- A suspect's awareness of all the crimes about which he might be questioned is
not relevant to determining the voluntariness of his waiver of his Fifth
Connecticut v. Barrett (1987),
479 U.S. 523 -- Limited invocation of rights, by only refusing to provide
written statement, did not establish incomplete understanding of rights. Also
see State v. Fields (1984), 13 Ohio App. 3d 433.
Mulkey (1994), 98 Ohio App. 3d
773 -- Under the totality of the circumstances, defendant's waiver found to be
knowing and voluntary, despite unrefuted expert testimony concerning limited
Dixon (1995), 101 Ohio App. 3d
552 -- Defendant was deliberately not Mirandized during first interrogation
concerning a forgery, but was Mirandized prior to questioning several hours
later concerning a related homicide. Court refuses to find second statement
suppressible under the fruit of the poisonous tree doctrine. Oregon v.
Elestad (1985), 470 U.S. 298 applied.
Lester (1998), 126 Ohio App.
3d 1, 6 -- "In determining whether
warnings became so stale as to dilute their effectiveness because of a
significant lapse in the process of interrogation, the following
totality-of-the-circumstances criteria should be considered: (1) the length of
time between the giving of the first warnings and subsequent interrogation, (2)
whether the warnings and the subsequent interrogation were given in the same or
different places, (3) whether the warnings were given and the subsequent
interrogation conducted by the same or different officers, (4) the extent to
which the subsequent statement differed from any previous statements, and (5)
the apparent intellectual and emotional state of the suspect."
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Invocation of right to counsel or to remain silent
Montejo v. Louisiana
(2009), 129 S.Ct. 2079 -- Michigan v. Jackson
(1986), 475 U.S. 625, is overruled. That case held that once a defendant has
made a request for counsel at arraignment, any waiver of that right during a
subsequent police-initiated interrogation is invalid. Point of departure is that
in Michigan counsel is appointed upon request of the defendant, while the
defendant in Montejo was appointed counsel without making an affirmative
request. The majority finds sufficient protection is afforded by
Miranda v. Arizona (1966), 384 U.S. 436,
Edwards v. Arizona (1980), 451 U.S. 477, and
Mississippi v. Minnick (1998), 498 U.S. 146. The
floridly written majority and concurring decisions, and the angry dissent,
suggest shifting sands on the application of stare decisis in Fifth and Sixth
Raber, 189 Ohio App. 3d 396,
2010-Ohio-4066 – Detectives went to the defendant’s door to
place her under arrest and to execute a search warrant.
Defendant was read her rights when placed under arrest. She
appeared to understand, but said nothing. Crossing the yard to a
cruiser she sat down for a moment and asked, “Can I have an
attorney?” Before the detective could answer, she had further
questions concerning her children. Only after she and the
detectives were in a cruiser was she told she could have a
lawyer. She said she understood and proceeded to talk to the
detectives for about two hours. Waiver found. Her question is
not construed as an unequivocal request for counsel. Compare
concurring opinion which concludes right to counsel was invoked,
but error is harmless beyond a reasonable doubt.
Michigan v. Mosley
(1975), 423 U.S. 96 -- The police must scrupulously honor a defendant's
invocation of Miranda rights and cease questioning.
They did so by ending interrogation of a robbery suspect.
Subsequent questioning about an unrelated homicide by other officers and
fresh Miranda warnings did not violate Miranda principles.
v. Cobb (2001), 121 S.Ct. 1335 -- Invocation of the Sixth Amendment right to
counsel is offense specific. Defendant who was represented on a burglary charge
was advised of Miranda
rights and confessed to murders arising from the same incident. No Sixth
Amendment violation found even though the charges were closely related. A
violation exists only if the additional charges fall within the Blockburger
test used in double jeopardy cases.
v. Kerby, 162 Ohio App. 3d 353,
2005-Ohio-3734 -- Applying
Michigan v. Mosley
(1975), 423 U.S. 96, officers did not scrupulously honor the defendant's
exercise of Miranda rights. After
time had passed the one of the officers involved induced the defendant to talk
through an explanation of the benefits he might realize, including reference to
information from other suspects.
However, subsequent interview by reporters did not require Miranda warnings and
the taint of the initial violation did not render those statements inadmissible.
State v. Murphy (2001), 91 Ohio St. 3d 516 -- In a capital case, the majority finds the
defendant's statement that he is "ready to quit talking, and * * * go home
too" not to be unambiguous. Concurring justice disagrees, but finds harmless
error. Dissenting justice would probably reverse. Also see State v. Jackson, 107 Ohio St. 3d 300,
State v. Taylor
(2001), 144 Ohio App. 3d 255, 260 -- "Do I need and attorney?" found not to
be an unambiguous request for an attorney. Officer's failure to read aloud a
small portion of the waiver form, which the defendant had before him to
read, did not invalidate waiver.
(2001), 144 Ohio App. 3d 396, 409 -- Initial interview stopped when counsel
showed up. Defendant later expressed her desire to complete her statement, and
did so after (it was claimed) she was reminded of her attorney's advice and
signed a waiver form. Suppression not required.
State v. Neely, 161 Ohio App. 3d 99,
2005-Ohio-2342 -- The defendant invoked his right
to remain silent when he refused to take a polygraph test, but months later made
an incriminating statement after again being advised of his Miranda rights and
agreeing to talk. The rule of Edwards v. Arizona is held not to apply to suspects who have not been in
Edwards v. Arizona (1980), 451 U.S. 477 -- Once the right to counsel has
been invoked, a valid waiver of that right can not be established merely by
showing that the defendant subsequently made a statement after again being
advised of his rights, unless the defendant has initiated the contact with the
authorities. Also see State v. Van Hook (1988), 39 Ohio St. 3d 256.
v. Roberson (1988), 486 U.S.
675 -- Edwards rule applies even when police later question defendant
about a separate incident.
United States (1994), 512 U.S.
452 -- The Edwards requirement that questioning cease when the defendant
asks to speak to a lawyer is not triggered when the reference to a lawyer is
ambiguous or equivocal. An hour and a half into the interview, the defendant
said, "Maybe I should talk to a lawyer." This was not enough to preclude further
questioning. Also see State v. Salinas (1997), 124 Ohio App. 3d 379,
385-386; State v. Henness
(1997), 79 Ohio St. 3d 53, 63.
Illinois (1984), 469 U.S. 91
-- Invocation of right to counsel and any subsequent waiver are separate issues.
Response to further questions may not be used to cast doubt on initial
invocation of right to counsel.
v. Mississippi (1990), 498
U.S. 146 -- Invocation of right to counsel remains in effect such that after
defendant has initially consulted with counsel, police still may not initiate
further questioning and attempt to have defendant waive his rights.
v. Bradshaw (1983), 462 U.S.
1039 -- Even if it is the defendant who initiates further conversation with the
authorities after having invoked the right to counsel, it must be determined
that he made a knowing and intelligent waiver of his right to counsel. Compare
State v. Stamper (1986), 33 Ohio App. 3d 104.
States v. Hinckley (C.A.D.C.
1982), 672 F. 2d 115 -- Twenty-five minute "background interview" five hours
after arrest and after defendant had invoked right to counsel was designed to
elicit incriminating responses and was properly suppressed.
v. Jackson (1986), 475 U.S.
625 -- Once a defendant has made a request for counsel at arraignment, any
waiver of that right during a subsequent police initiated interrogation is
v. Wisconsin (1991), 501 U.S.
171 -- Representation by counsel at a bail hearing on an unrelated charge not
sufficient to invoke right to counsel for purposes of Edwards and
Taylor (1992), 80 Ohio App. 3d
601 -- At initial appearance the defendant was told counsel would be appointed.
Subsequently, he mistook a detective for appointed counsel and made admissions.
Held that regardless of the defendant's or detective's claims concerning this
contact, any interrogation, once the right to counsel had been invoked, was
improper unless initiated by the defendant. Minnick v. Mississippi
(1990), 498 U.S. 146, applied.
v. Knuckles (1992), 65 Ohio
St. 3d 494 -- Arrest on an outstanding warrant for passing bad checks was a
pretense for questioning the defendant about a homicide he was later charged
with. The defendant invoked the right to counsel as to the check charges, but
signed a Miranda waiver and answered questions about the homicide. The
statements should have been suppressed. Syllabus: "(1) Once an accused invokes
his right to counsel, all further custodial interrogation must cease and may not
be resumed in the absence of counsel unless the accused thereafter effects a
valid waiver or himself renews communication with the police. (State v.
Williams , 6 Ohio St. 3d 281...paragraph four of the syllabus,
followed.) (2) When a statement, question or remark by a police officer is
reasonably likely to elicit an incriminating response from a suspect, it is an
interrogation. (Rhode Island v. Innis
, 446 U.S. 291...)"
Cincinnati v. Gill (1996), 109
Ohio App. 3d 580 -- OMVI arrestee called lawyer from police station, then
refused to take test. Call amounted to invocation of right to counsel. Response
when asked why test was refused was, therefore, properly suppressed, and could
not be characterized as routine booking information.
Geasley (1993), 85 Ohio App.
3d 360 -- OMVI arrestee was videotaped at the police station. Portions relating
to advice required under the implied consent law, booking information, and
showing general appearance and demeanor were admissible. Portion relating to
questioning after Miranda warning, and assertion of such rights, was not.
Also see Pennsylvania v. Muniz
(1990), 496 U.S. 582.
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Police informants and agents
v. Conway, 108 Ohio St. 3d 214,
2006-Ohio-791, ¶56-90 -- Prosecutor enlisted a
capital defendant's distant cousin as an informant after he had been arrested
and indicted. Massiah violation
found, but deemed harmless in view of the strength of the evidence.
Statements to the informant were properly used in cross-examination of
v. United States (1964), 377
U.S. 201 -- Surreptitious interrogation of defendant during continuing
investigation following indictment, at a time when defendant was represented by
counsel, was a denial of right to counsel under the Sixth Amendment.
v. Perkins (1990), 496 U.S.
292 -- Massiah does not apply where no charges have been filed and
undercover officer is placed in cellblock to seek incriminating information.
Also see Hoffa v. United States (1966), 385 U.S. 293.
States v. Henry (1980), 447
U.S. 264 -- Statements made to inmate in same cell block inadmissible when paid
informant had been contacted by government agents and asked to be alert to
incriminating statements made by federal prisoners. Compare Thomas v. Cox
(4th Cir. 1983), 708 F. 2d 132 (contact with authorities initiated by snitch);
Kuhlmann v. Wilson (1986), 477 U.S. 436, 456-461.
Adkins (1992), 80 Ohio App. 3d
211, 219-220 -- Undercover officer working with an informant in a bar by chance
overheard defendant make incriminating statements to an informant concerning
pending charges. No Massiah
Return to top of page
Garrity v. New Jersey
(1967), 385 U.S. 493 – Under the New Jersey forfeiture of office statute,
exercise of the Fifth Amendment privilege against self-incrimination could cost
public employees their positions. Police officers complied with the statute, but
the resulting statements were made under duress and could not be used against
them in a state criminal proceeding.
State v. Groszewski, 183 Ohio App. 3d 718,
2009-Ohio-4062 – City employee showed up for work and left driving a city
truck. Reports indicated he might be under the influence, so he was ordered back
to the depot and taken to a hospital for testing in accordance with his
contract, which specified a refusal could cost him his job. Test results were
admissible for Fifth Amendment purposes, but the statements he made at the
hospital were coerced and inadmissible, applying Garrity v.
New Jersey (1967), 385 U.S. 493. However, the test results are
suppressible as a Fourth Amendment violation, as without the statements obtained
in violation of the Fifth Amendment, officers did not otherwise have probable
State v. Jackson, 125 Ohio St. 3d 218,
2010-Ohio-621 – Police officer on administrative leave had a gun when he was
involved in a bar fight. He made a Garrity statement
in the presence of another officer who later testified before the grand jury.
Trial prosecutor also had access to the statement. Applying the test of
Kastigar v. United States (1972), 406 U.S. 441, the
prosecution neither denied any use of the defendant’s immunized testimony, nor
affirmatively demonstrated all of the evidence to be used at trial was derived
from wholly independent sources. Remedy is dismissal of the indictment.
State v. Perez, 124 Ohio St. 3d 122,
2009-Ohio-6179, ¶62-76 -- Threats to arrest a family member may render a
confession involuntary, but not if, in fact, there was probable cause to make
such an arrest.
State v. Petitjean
(2000), 140 Ohio App. 3d 517 -- False representations to suspect during
interrogation so affected his calculus as to the waiver of Fifth Amendment
rights as to render confession involuntary. Suggestions that he acted in
self-defense were OK, but implication that confession was necessary for lenient
treatment, possibly including probation, overbore his will. "Petitjean's
testimony that he believed that the officers had an electric chair in the
basement they intended to put him in is no more than an attempt to portray his
state of fear through hyperbole." Also see State v. Jackson Greene App.
Copley, 170 Ohio App. 3d 217,
2006-Ohio-6478 -- Statements that jail is not for everybody,
that everybody deserves a second chance, and that counselling is
a way to get that second chance arise to the level of an implied
promise of leniency, but the court concludes that under the
totality of the circumstances they did not render the
defendant's statement involuntary.
v. Phillips, Clark App. No. 2003-CA-15,
2004-Ohio-4688 -- Kettering officer induced admissions promising only
misdemeanor charges would be pursued, but the statements were used in a felony
prosecution in a different county.
¶ 25: "...(T)he promise is binding on the State of Ohio with respect to
any charges which are filed in its
name, irrespective of what representative of the State files them or in what
court of the State they are filed."
Waiver of Fifth Amendment rights was less than knowing, intelligent and
(2001), 144 Ohio App. 3d 539 -- Incarcerated juvenile made two inculpatory
statements as a part of a program at the institution where he was held, and a
third to the person driving him to a medical appointment. Miranda
warnings were not required as the counsellors involved were not law-enforcement
officers. They were state agents for purposes of the coerced confession rule,
and the surrounding circumstances
compelled the juvenile to either make a statement or face a penalty, except for
the time he was being transported and responded to a casual question. Two of the
three statements were properly suppressed. Though the appeal raised only
constitutional issues, court notes that an incarcerated juvenile's statements to
counselors may have been inadmissible under
R.C. 2317.02(G)(1) or under federal
statutes pertaining to confidentiality of patient records in federally assisted
substance abuse programs. [See Title 42, U.S.C., Sec. 290dd-2.]
State v. Sess
(1999), 136 Ohio App. 3d 689 -- Police officer was required to take a
polygraph test as a part of assignment to a regional narcotics unit. Before
the test he admitted that in the past he had planted drugs on a suspect.
Further information concerning the specifics of this incident was coerced by
the threat of losing his job. (1) Admissions were properly suppressed under
the coerced confession rule. (2) Court declines to address the immunity
issue raised pursuant to Jones v. Franklin County Sheriff (1990), 52
Ohio St. 3d 40. (3) Neither the inevitable discovery exception or the
independent source doctrine save the admissibility of information derived
from such admissions.
v. Hogan (1964), 378 U.S. 1 --
Coerced confessions are not admissible in state criminal trials. Also see Arizona v. Fulimanante (1991), 499 U.S. 279.
Colorado v. Connelly 479 U.S.
157 -- Coercive police activity is a necessary requisite to a finding of
involuntariness. While the defendant's mental condition is a significant factor
to be consider, it is not by itself dispositive. Also see Vance v.
Bordenkircher (4th Cir. 1982), 692 F. 2d 978 (voluntary despite IQ of 62);
State v. Davis (1984), 14 Ohio App. 3d 416 (statement made after defendant
had been adjudicated incompetent to stand trial); State v. Knotts (1995),
111 Ohio App. 3d 753.
Edwards (1976), 49 Ohio St. 2d
31, 40 -- In determining whether a statement was voluntary "...(T)he court
should consider the totality of the circumstances, including the age, mentality,
and prior criminal experience of the accused; the length, intensity, and
frequency of interrogation; the existence of physical deprivation or
mistreatment; and the existence of threat or inducement." Also see Brown v.
United States (10th Cir. 1966), 356 F. 2d 230, 232.
Jackson (1977), 50 Ohio St. 2d
253 -- When defendant has been advised of his rights not asserted any of them,
informing the defendant of the evidence against him does not render questioning
coercive. Also see State v. Black
(1976), 48 Ohio St. 2d 262; Frazier v. Cupp (1966), 394 U.S. 731 --
Misrepresentation that codefendant had confessed by itself did not render
Wilson (1996), 117 Ohio App.
3d 290 -- Officer told suspect he would only be charged with theft if he
confessed. Otherwise he would be charged with aggravated robbery. Confession was
Patterson (1993), 95 Ohio App.
3d 255, 260-262 -- Questioning found not to be coercive, though it extended over
a prolonged period of time, as there was no showing that fatigue or discomfort
produced the confession. Also see State v. Dailey (1990), 52 Ohio St. 3d
88, 92; State v. Barker (1978), 53 Ohio St. 2d 135, 141.
Cleveland Heights v.
Stross (1983), 10 Ohio App. 3d
246 -- Confession by store employee to representatives of his employer held
inadmissible when it was the product of coercion. Compare State v. Todd
(1992), 78 Ohio App. 3d 454.
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(2001), 90 Ohio St. 3d 460, 479-480 -- Doyle extends to mention of
defendant's request for an attorney. However, mistrial was not required as error
was harmless beyond a reasonable doubt.
v. Ruby, 149 Ohio App. 3d 541,
2002-Ohio-5381 -- Though declining to find a
Doyle violation plain error, and declining to reverse based on weight and
sufficiency, the court finds counsel's failure to object amounted to ineffective
assistance of counsel. The reasonable probability the outcome would have been
different aspect of Strickland analysis requires this result where the
evidence was less than overwhelming, though good enough to survive weight
State v. Geboy
(2001), 145 Ohio App. 3d 706 -- Prosecutor made the defendant's failure to
assert his innocence a centerpiece of opening and closing arguments and
testimony by state's witnesses. Unlike Doyle, use was not limited to
impeachment. This undermined the presumption of innocence. Reversed as plain
Ohio (1976), 426 U.S. 610 --
Use of post-arrest silence for impeachment purposes violates the Due Process
Clause of the Fourteenth Amendment. Also see State v. Van Meter (19998),
130 Ohio App. 3d 592.
v. Weir (1982), 455 U.S. 603
-- Doyle does not apply to post-arrest silence when no Miranda
warnings have been given, since the defendant has not received the assurance
that silence will not be used against him, which is implicit in the Miranda
warnings. Also see State v. Sabbah (1982), 13 Ohio App. 3d 124 -- Evid.
R. 403(A) to be applied in weighing admissibility of pre arrest silence; State v. Ospina (1992), 81 Ohio App. 3d 644;
State v. Saunders
(1994), 98 Ohio App. 3d 355; State v. Price (January 31, 1995), Franklin
Co. App. No. 94APA07-1012, unreported (1995 Opinions 243).
v. Charles (1980), 447 U.S.
404 -- Doyle does not apply when defendant is cross-examined using his
prior inconsistent statements to police officers, made after Miranda
warnings. Also see State v. Gillard
(1988), 40 Ohio St. 3d 226, 231-232; State v. Osborne (1977), 50 Ohio St.
Thompson (1987), 33 Ohio St.
3d 1, 4 -- Prosecutors must take great care...not to equate the defendant's
silence to guilt."
Miller (1987), 483 U.S. 756 --
If an objection to an improper question about post-arrest silence is sustained
and jury is instructed to disregard the question, mistrial or reversal is not
Wainwright v. Greenfield
(1986), 474 U.S. 284 -- Defendant's post- arrest silence after being advised of
Miranda rights may not be used as evidence of his sanity.
Howard (1978), 56 Ohio St. 2d
328 -- Witness not entitled to Fifth Amendment protection may be cross-examined
concerning silence at earlier proceedings.
Nichols (June 26, 1979),
Franklin Co. Case No. 79AP-57, unreported (1979) Opinions 1699 -- Opinion
implies that it is improper to adduce testimony that defendant refused to sign
rights waiver form. Also see State v. Motley
(1985), 21 Ohio App. 3d 240.
Return to top of page
State v. Adams, Clark App. No.
2003 CA 32,
Bruton violation claimed where another person was indicted separately based
on the facts of a single transaction. (1) No
error since a severance is a potential remedy for a Bruton violation.
(2) There must be a trial for a Bruton error to occur.
Adams pled guilty.
v. United States (1968), 391
U.S. 123 -- Admission of a codefendant's confession at a joint trial where the
codefendant does not take the stand denies defendant the right to
cross-examination secured by the Confrontation Clause of the Sixth Amendment.
Also see State v. Moritz (1980), 63 Ohio St. 2d 150.
Richardson v. Marsh (1987),
481 U.S. 200 -- If codefendant's confession is redacted so that it is not
incriminating on its face, it may be
admitted at joint trial, accompanied by instructions that it may not be
considered in any way against the defendant.
Maryland (1997), 523 U.S. 185
-- Bruton and Gray are not satisfied if in reading the
codefendant's statement the word "deleted"
or comparable language is substituted for the defendant's name in a manner
making it obvious that the defendant is the person referred to, notwithstanding
limiting instructions that the confession was to be considered only with respect
to the codefendant.
New York (1987), 481 U.S. 186
-- Decision overrules Parker v. Randolph
(1979), 442 U.S. 62, where the plurality
opinion stated that separate trials may not be required if both defendant have
confessed and confessions "interlock" or tend to corroborate each other. Thus,
even an interlocking confession of a nontestifying codefendant is inadmissible
at a joint trial, even with limiting instructions, unless it is admissible under
some other theory.
v. Fogg (2nd Cir. 1983), 713
F. 2d 18 -- To be "interlocking" confessions need not be identical, though they
must be substantially the same and
consistent on the major elements of the crime involved.
States v. Iron Thunder (8th
1983), 714 F. 2d 765 -- Statements
do not interlock when codefendants incriminate one another but each denies his
States v. Lewis (C.A.D.C.
1983), 716 F.2d 16, 19 -- Use of
dual juries discussed and approved. Each jury heard confession of the defendant
they were trying, but not that of codefendant.
v. O'Neil (1971), 402 U.S. 622
-- No Bruton problem where at joint trial codefendant testifies in both
his and defendant's favor and is impeached using previous statement to the
Martin (1983), 9 Ohio App. 3d
150 -- In order for the out of court statements of a co-conspirator to be
admissible, there must be independent proof sufficient to establish a prima
facie case fairly raising a presumption or inference of conspiracy. See Evid.
R. 801(D)(2)(e); Goins v. State
(1889), 46 Ohio St. 457; State v. Thomas (1979), 61 Ohio St. 2d 223.
Duerr (1982), 8 Ohio App. 3d
396 -- The defendant's own admissions may constitute the independent proof
establishing the existence of a conspiracy, permitting admission of the hearsay
statements of co-conspirators.
Duerr (1982), 8 Ohio App. 3d
404, 407 -- When the crime has been completed, a co-conspirator's confession
implicating the defendant is not a statement made "during the course and in
furtherance of the conspiracy." See Evid. R. 801(D)(2)(e).
Milo (1982), 6 Ohio App. 3d 19
-- There are five conditions for the admission of the out of court declaration
of a co-conspirator: (1) the existence of a conspiracy; (2) the defendant's
participation in the conspiracy; (3) the declarant's participation in the
conspiracy; (4) the statement was made during the course of that conspiracy; and
(5) the statement was in furtherance of the conspiracy. Also see Evid. R.
801(D)(2)(e); State v. Carver (1972), 30 Ohio St. 2d 280.
v. Parson (1983), 6 Ohio St.
3d 442, 445 -- State was under a duty to disclose codefendant's oral statement
to a law enforcement officer.
v. DeLeon (1991), 76 Ohio App.
3d 68, 77-78 -- It was error to allow the prosecutor to introduce the
defendant's oral statement to a police officer which had not been furnished in
discovery. The fact that the statement had not been recorded did not relieve the
state of its duty to provide the statement: "The police and prosecutor may not
subvert this requirement by the expedient of not making a note." Also see
State v. Gooden (1983), 16 Ohio App. 3d 153.
v. Illinois (1986), 476 U.S.
530 -- Codefendant's confession improperly considered as substantive evidence of
guilt. Case involved bench trial of codefendants at which neither testified.
Thus, right to confrontation was denied.
v. Tucker (1998), 81 Ohio St.
3d 431, 438-442 -- Codefendant's recorded statement was played for the jury
after he refused to testify and thus became "unavailable" as a witness. Sheriff
who did the questioning said some of what was said was not truthful. Opinion
defines issues surrounding which portions of statements were admissible, then
sidesteps, holding error, if any, was harmless. See Williamson v. United
States (1994), 512 U.S. 594 interpreting Fed. R. Evid. 804(b)(3).
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Suppression hearing issues
Wainwright v. Sykes (1977),
433 U.S. 72 -- Miranda issues are usually deemed waived unless raised in
a timely manner under state law.
Moody (1978), 55 Ohio St. 2d
64 -- Miranda claims must be raised by pretrial motion unless good cause for
failing to do so is shown. Crim. R. 12(B) applied.
Twomey (1972), 404 U.S. 477,
487-489 -- Prosecution bears burden of proof at suppression hearing by at least
a preponderance of the evidence. Also see State v. Arrington (1984), 14
Ohio App. 3d 111, 114; State v. Garcia
(1986), 32 Ohio App. 3d 38.
Gray (1984), 14 Ohio App. 3d
43 -- If the defendant presents credible evidence that a confession was coerced
and involuntary, and the state presents nothing in rebuttal, the court cannot
reject the defendant's evidence and overrule a motion to suppress.
State v. Talbert (1982) Ohio
App, First District, No. C-810389
If state intends to use statement,
defendant has a right to a hearing on a motion to suppress even though he denies
statement was made.
v. Williams (1984), 467 U.S. 431 -- (Same case as Brewer v. Williams)
There is an "inevitable discovery" exception to the exclusionary rule. If
evidence which was the fruit of a violation of the defendant's Sixth Amendment
rights would have been discovered anyway, it is still admissible. Here the
defendant directed the police to body which search teams had been working
towards. Also see State v. Mosher (1987), 37 Ohio App. 3d 50.
Sims (1998), 127 Ohio App. 3d
603, 614-616 -- Even though a statement was obtained following a Fourth
Amendment violation it may still be admissible, weighing such factors as whether
it was gratuitous and unsolicited, the use of Miranda
warnings, and whether it was sufficiently an act of free will so as to purge the
Fourth Amendment violation.
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State v. Jeffries, 119 Ohio St. 3d 265,
2008-Ohio-3865 – Prior to plea negotiations the defendant took and passed a
polygraph. As part of a cooperation agreement with the prosecutor, the results
of the test were made known and a copy of her statement turned over. She failed
a subsequent polygraph and the deal fell apart. Nonetheless, her statement to
the first polygraphist was admissible since it was made prior to the
commencement of plea negotiations. Syllabus: ―Statements that were not made in
the course of plea discussions are not protected by Evid. R. 410, even if the
statements were later provided to the state in the course of plea discussions.
Dakota v. Neville (1983), 459
U.S. 553 -- Testimony concerning defendant's refusal to take test when arrested
for OMVI not within the purview of Miranda. Also see State v. Rollyson
(1984), 20 Ohio App. 3d 336.
Turvey (1992), 84 Ohio App. 3d
724, 734-735 -- Written and taped confessions are independent. Under the best
evidence rule as set forth in Evid. R. 1002, the state may use the written
confession without admitting the taped confession. See concurring and dissenting
opinions as to why the defendant would have been able to introduce the taped
confession during cross-examination.
Crawford (1989), 60 Ohio App.
3d 61 -- When the only objection to the use of a transcript in place of the
actual videotape of the defendant's confession is that the transcript is
inaccurate, the defendant has waived any objection on the basis of the best
Holmes (1987), 36 Ohio App. 3d
44 -- Headnote 2: "The use of a typed transcript as a visual aid to the jury in
listening to the playback of a tape-recorded communication is a matter within
the sound discretion of the trial court. (Evid. R. 1002, applied.)" Tape, but
not transcript, was sent to the jury room. For the requirement under the best
evidence rule that the tape be played see Harleysville Mutual Insurance Co.
v. Santora (1982), 3 Ohio App. 3d 257.
Gotsis (1984), 13 Ohio App. 3d
282 -- No error in admitting partially inaudible tape recorded conversations
between defendant and undercover agents where there was no indication recording
had been altered, agents testified as to content of conversations before tape
was played and defendant had opportunity to offer his own version of the
Loza (1994), 71 Ohio St. 3d
61, 79-80 -- "Generally, the propriety of sending a defendant's confession into
the jury room rests within the sound discretion of the trial judge." It is not
per se an abuse of discretion to permit a videotaped confession to be
replayed during deliberations.
United States v. Walker (7th Cir.
1981), 652 F. 2d 708, 710 -- When a party is entitled to have additional
portions introduced which in fairness ought be considered contemporaneously.
Fed. Evid. R. 106 applied. Also see United States v. Metcalf (8th Cir.
1970), 430 F. 2d 1197, 1199 (other party to overheard conversation).
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United States (2009), 129 S.Ct. 1558 – 18 U.S.C. ¶3501
limits, but does not eliminate, the McNabb-Mallory rule.
Voluntary confessions made within six hours of arrest are
admissible, but the statute does not render all voluntary
confessions made after that admissible. Instead statements will
generally be inadmissible, subject to McNabb-Mallory analysis.
v. Clowers (1999), 134 Ohio App. 3d 450 -- Boyfriend and wife both confessed
to murder of husband. Wife's confession was suppressed and charges against her
were dismissed. Boyfriend was not allowed to use her confession at his trial.
While her statements were against her penal interest, it was not established
that she was unavailable as a witness, nor was the reliability of her statements
established, since her statements were inconsistent and had been suppressed.
Tuck, 146 Ohio App. 3d 505,
2001-Ohio-7017 -- Regardless of whether a defendant has an individually
enforceable right under Article 36 of the Vienna Convention on Consular
Relations, suppression of statements is not an available remedy. Also see United States v. Tuck (6th Cir, 2000), 232 F.3d 505.
v. Young, Montgomery App. Nos. 19472 and 19473,
2003-Ohio-2205 -- In seeking joinder of indictments prosecutor claimed the prosecuting witness had been a
family or household member of the defendant within the past five years. Court
declines accepting this as a judicial admission which would nullify charges the
defendant abducted the PW's children.
v. Smith (1997), 80 Ohio St. 3d 89, 106 -- "Neither the Ohio Constitution
nor the United States Constitution requires that police interviews, or any
ensuing confessions, be recorded on audio or video machines."
Hamilton (1997), 122 Ohio App.
3d 259 -- Detention of auto passenger appeared to last longer than permitted to
accomplish legitimate objectives, and the court believed her claimed consent to
search was mere submission to authority. Driver-boyfriend's confession following
a second "consent" search of apartment suppressed.
Bey (1999), 85 Ohio St. 3d
487, 491 -- Collateral estoppel applied to prevent defendant from renewing claim
that confession to another murder, tried separately, should have been
suppressed. Objective was to prevent reference to that murder as similar acts
evidence in the trial of another homicide.
Juniper (1998), 130 Ohio App.
3d 219 -- Reversible error where defendant's suppressed statement to the police
was mistakenly sent to the jury with other exhibits.
Unger (1981), 67 Ohio St. 2d
65 -- Exclusionary rule will not be applied to keep out a defendant's confession
where there has been a failure to follow proper procedure in transferring the
defendant from county of arrest to county where charges were pending.
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