Burden of Proof and Burden of Going Forward


Franklin County Criminal Law Casebook

Reproduced with permission from:
Timothy E. Pierce and the Franklin County Public Defender Office

R.C. 2901.05(A) -- Borne by prosecution, by proof beyond a reasonable doubt on elements of offense. Borne by the defense, by a preponderance of the evidence, as to affirmative defenses.
R.C. 2901.05(D) -- Definition of reasonable doubt which must be included in jury instructions. Also see 4 OJI 403.50.
Preponderance of the evidence defined -- 4 OJI 409.60 (Greater weight of the evidence, sufficient to overbalance evidence offered to the contrary.)
Prima facie evidence defined -- 4 OJI 409.65 (Sufficient, if accepted, to establish guilt, unless rebutted or disproved.)
Rebuttable presumption defined -- 4 OJI 409.67 (Must be made clear that is not conclusive and that presumption does not relieve prosecution of its burden of proof.)
Clear and convincing evidence defined -- In re Chappell (1938), 33 N.E.2d 393, 397: "...that degree of proof which will produce in the mind of the court a firm belief or conviction of the truth of the charges and specifications sought to be established. Cross v. Ledford (1954), 161 Ohio St. 469, paragraph 3 of the syllabus: "Clear and convincing evidence is that measure or degree of proof which is more than a mere 'preponderance of the evidence,' but not to the extent of such certainty as is required by 'beyond a reasonable doubt' in criminal cases, and which will produce in the mind of the trier of facts a firm belief or conviction as to the facts to be established." Also see Lansdowne v. Beacon Journal Publishing Co. (1987), 32 Ohio St. 3d 176, 180-181; In re Meyer (1994), 98 Ohio App. 3d 189, 195; Cincinnati Bar Assn. v. Massengale (1991), 58 Ohio St. 3d 121, 122; In re Adoption of Holcomb (1985), 18 Ohio St. 3d 361, 368; In re Brown (1994), 98 Ohio App. 3d 337, 342-343.
Who has the burden of going forward with the evidence at a hearing on a pretrial motion depends on who has the burden of proof.
(A)Motion to suppress statements: Prosecution has burden of proving statements were voluntarily obtained, following waiver of rights. See Miranda v. Arizona (1966), 384 U.S. 436; State v. Kassow (1971), 28 Ohio St. 2d 141, paragraph four of the syllabus; Lego v. Twomey (1972), 404 U.S. 477; Colorado v. Connelly (1986), 479 U.S. 157 (state bears the burden of proof by a preponderance of the evidence in a motion to suppress statements); U.S. v. Springer (7th Cir. 1972), 460 F.2d 1344; State v. Garcia (1986), 32 Ohio App. 3d 38. On issue whether statements were obtained through coercion or mistreatment, burden is upon the accused. State v. Kassow, supra, paragraph three of the syllabus.
(B) Motion to suppress identification by photos, showup or lineup: State bears the burden.
(C) Motion to suppress evidence obtained with a search warrant: State bears the burden.
(D) Motion to suppress evidence obtained without a search warrant: State bears the burden. U.S. v. Matlock (1974), 415 U.S. 164, 172, 177 (consent by third party); State v. Cheers (1992), 79 Ohio App. 3d 322, 325.
(E) Motion to suppress test results in an OMVI case: State bears both burden of proof and burden of going forward. State v. Gasser (1980), 5 Ohio App. 3d 217; Bowling Green v. O'Neal (1996), 113 Ohio App. 3d 880; State v. Cehelsky (1997), 122 Ohio App. 3d 623.
(F) Hearing to determine competency to stand trial: R.C. 2945.37 sets forth a preponderance of the evidence standard but does not specify who has the burden of proof. In State v. Pruitt (1984), 18 Ohio App. 3d 50 court splits on whether constitution allows placing burden of proof on the defendant, the majority concluding that it does. Compare State v. Johnson (1987), 32 Ohio St. 3d 109.
State v. Wagner, 179 Ohio App. 3d 165, 2008-Ohio-5765 – At a community control revocation hearing the state has the burden of proof by preponderance.
Toledo v. Thompson-Bean, 173 Ohio App. 3d 566, 2007-Ohio-4898 – Mother exploded during a meeting at her daughters' school and was convicted under an ordinance proscribing disturbing, disrupting or interfering with school activity. Void for vagueness challenge deflected by construing the ordinance to require substantial disruption and willful (purposeful) action by the accused. Also see Euclid v. Moore (Dec. 9, 1999), Cuyahoga App. No. 75143.
State v. Maisch, 173 Ohio App. 3d 724, 2007-Ohio-6230, ¶24 – When the defendant shows he has not been brought to trial within the proper time period the burden shifts to the state to demonstrate that sufficient time was tolled or extended under R.C. 2945.72.
State v. Mays, 119 Ohio St. 3d 406, 2008-Ohio-4539, ¶23 – Probable cause is a stricter standard than reasonable and articulable suspicion. The former subsumes the latter, just as proof beyond a reasonable doubt subsumes proof by a preponderance of the evidence.
Dixon v. United States (2006), 126 S.Ct. 2437 -- Jury instructions requiring the defendant to establish an affirmative defense by a preponderance of the evidence do not run afoul of the Due Process Clause of the Fourteenth Amendment. Federal defendant claiming duress was denied an instruction placing a burden to disprove on the government.
Patterson v. New York (1977), 432 U.S. 197 -- If an affirmative defense does not negate any of the elements of an offense the state must prove in order to obtain a conviction, but only serves to excuse or reduce the degree of the offense, the Due Process Clause of the Fourteenth Amendment does not prevent the states from requiring that the defendant prove the affirmative defense by a preponderance of the evidence. Also see Mullaney v. Wilbur (1975) 421 U.S. 684; Krzeminski v. Perini (6th Cir. 1980), 614 F. 2d 121.
Sandstrom v. Montana (1979), 442 U.S. 510 -- State may not be given the benefit of a conclusive presumption which overrides the presumption of innocence, and relieves the state of its burden of proof. Nor may there be non-conclusive presumptions which have the effect of shifting the burden of persuasion to the defense.
State v. Rhodes (1992), 63 Ohio St. 3d 613 -- Syllabus: A defendant on trial for murder or aggravated murder bears the burden of persuading the fact finder, by a preponderance of the evidence, that he or she acted under the influence of sudden passion or in a sudden fit of rage, either of which was brought on by serious provocation occasioned by the victim that was reasonably sufficient to incite the defendant into using deadly force, R.C. 2903.03(A), in order for the defendant to be convicted of voluntary manslaughter rather than murder or aggravated murder. (State v. Muscatello [1978], 55 Ohio St. 2d 201...construed and modified.)" See dissent for basis to object to instruction placing such a burden on the defendant. Compare Mullaney v. Wilbur (1975), 421 U.S. 684 -- A defendant may not be given the burden of disproving an element of a crime through application of a presumption. Maine homicide statute provided a conclusive presumption of malice aforethought from proof that the homicide was both intentional and unlawful. To be found guilty of manslaughter, the defendant had to prove by a preponderance that he acted in the heat of passion or on sudden provocation. Also see State v. Muscatello (1977), 57 Ohio App. 2d 231.
Martin v. Ohio (1987), 480 U.S. 228 -- It is not a violation of due process for Ohio to place the burden of proving self-defense, by a preponderance of the evidence, upon the accused.
State v. Danby (1983), 11 Ohio App. 3d 38, 41 -- The state bears the burden of proving by clear and convincing evidence that consent to search was freely and voluntarily given. Also see United States v. Scott (6th Cir. 1981), 578 F. 2d 1186, 1188-1189.
State v. Whiting (1998), 84 Ohio St. 3d 215 -- According to State v. Luck (1984), 15 Ohio St. 3d 150, when a defendant moves to dismiss an indictment because of preindictment delay, he bears the burden of establishing substantial prejudice, after which the burden shifts to the state to justify the delay. At the initial hearing on a motion to dismiss, the defendant met this burden, but the state elected not to present any evidence. In overruling the motion, the court mistakenly said the defense bore the burden of showing delay was caused by negligence or bad faith. Following a mistrial, the motion was sustained after a further hearing, at which the state relied on the court's previous statement as to the burden of proof and again presented nothing. At p. 218: "But since the state's misstep on the production of evidence occurred before the trial court expressed its view that the state had no burden of going forward, the state may not claim to have been misled by the court's erroneous ruling."
State v. Mingua (1974), 42 Ohio App. 2d 35, 40 -- "Although the quantum of evidence required to support a revocation of a probation or a parole may not be 'beyond a reasonable doubt,' as in criminal trials, yet...there needs to be evidence of a substantial nature in order to find that revocation is justified in a given instance."
United States v. Cronic (1984), 466 U.S. 648, 658 -- Because there is a presumption that counsel is competent, the defendant bears the burden of demonstrating a denial of effective assistance.
State v. Aldridge (1997), 120 Ohio App. 3d 122, 136 -- Post-conviction actions are civil in nature. Petitioner's burden of proof is by a preponderance of the evidence.

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Published by Timothy E. Pierce
Copyright © Franklin County Public Defender and Timothy E. Pierce, 2015
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