Franklin County Criminal Law Casebook
Reproduced with permission from
David L. Strait and the Franklin County Public Defender Office
BURDEN OF PROOF AND BURDEN OF GOING FORWARD
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
Preponderance of the evidence defined -- 4 OJI
409.60 (Greater weight of the evidence, sufficient to
offered to the contrary.)
Prima facie evidence defined -- 4 OJI
409.65 (Sufficient, if accepted, to establish guilt, unless rebutted or
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
(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
(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.
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.
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
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
, 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.
(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.
Return to top of page
Return to Index