Franklin County Criminal Law Casebook
Reproduced with permission from
David L. Strait and the Franklin County Public Defender Office
Also see Fifth
R.C. 2945.44 -- Immunity of witness turning
state's evidence may be granted by Common Pleas Court judge.
R.C. 2939.17 -- Immunity for grand jury
witness called by the Attorney General.
R.C. 2905.12(B) -- Offer of immunity not
R.C. 2923.23 -- Immunity from prosecution for
weapons offenses if weapons are surrendered.
R.C. 2963.23 -- Accused (who has waived
extradition to Ohio) immune from civil suits until conviction or return
R.C. 101.44 -- Immunity of person who
testifies before a legislative committee.
State v. Jackson, 125 Ohio St. 3d
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. Reiner (2000), 89 Ohio St. 3d
342, 354- -- There is no need for a grant of immunity where a witness denies all
culpability. A court may resort to
R.C. 2945.44 only after reaching the
conclusion that the witness's testimony would be self-incriminating. Grant of
immunity to alternative suspect, who then denied culpability, was prejudicial to
the defendant as it in effect told the jury she was not responsible. See
dissent. Reversed insofar as the court held the witness did not have a valid
Fifth Amendment claim. Ohio v. Reiner (2001), 532 U.S. 17. On remand the
grant of immunity was again held improper. State v. Reiner (2001), 93
Ohio St. 3d 601. When it is an either/or situation as to whether the state's
witness or the defendant is culpable, immunity is improper. The jury should hear
the witness exercise his or her Fifth Amendment privilege and evaluate their
testimony on that basis.
State v. Adams, 153 Ohio App. 3d 134,
2003-Ohio-3086 -- Wife balked at testifying at her husband's domestic violence
trial, notwithstanding a grant of immunity, primarily because she feared
prosecution for perjury based on inconsistencies between her trial testimony and
her prior testimony before the grand jury. While a literal reading of Ohio's
transactional immunity statute leaves open this possibility, the statute must be
interpreted to provide protection coextensive with the Fifth Amendment. On this
basis, the state may not use prior testimony to pursue the a claim the immunized
testimony amounts to perjury. It can only use future testimony to that end.
State v. Neff (1999), 135 Ohio App. 3d 7
-- Ohio court granted state's witness immunity, but refused to compel her to
testify when question of federal immunity arose. Applying Murphy v.
Waterfront Commission, (1964), 378 U.S. 52, grant of state immunity bound
the federal government, subject to an independent source exception.
State v. Brocious, Clark App. No. 2002
2003-Ohio-4708 -- Deputy was measuring skid marks. Fireman parked his
truck over the marks. Fireman called deputy an asshole after being ordered to
move the truck. Deputy drew his gun, cuffed the fireman, and placed him under
arrest. Special prosecutor charged deputy with aggravated menacing and
misconduct at the scene of an emergency. Since the prosecutor could not recall
the extent to which she relied upon a compelled, and thus immunized, statement
completed by the deputy, charges were properly dismissed. See Garrity v.
State of New Jersey (1967), 385 U.S. 493. Dissenting judge believes
suppression of statement was the appropriate remedy. Also see State v.
Brocious, Clark App. No. 04CA0003 suggesting charges could be properly
refiled by a new prosecutor not tainted by knowledge of the immunized statement.
State ex rel. Koren v. Grogan (1994), 68
Ohio St. 3d 590 -- (1)
R.C. 2945.44 only provides transactional immunity.
Transactional immunity is broad enough to subsume use immunity, which Ohio
courts are not authorized to grant. Though the trial judge mistakenly included a
use immunity instruction along with the
required instruction on transactional immunity, this does not invalidate the
grant of immunity. (2) Defendant and the driver of another car involved in an
accident were both charged with aggravated vehicular homicide. The defendant was
granted immunity to testify against the other driver. Writ of prohibition
properly issued to bar prosecution for OMVI in another court.
Kastigar v. United States (1972), 406 U.S.
441 -- Use and derivative use immunity is coextensive with the protection of the
Fifth Amendment. If a person who has been compelled to testify under a grant of
immunity is later prosecuted, it is the burden of the government to prove
incriminating evidence is derived from a wholly independent source.
State v. Prato (1965), 2 Ohio App. 2d 115
-- Headnote 2: "A witness, who, in answer to a subpoena of a grand jury, has
been granted immunity under (former) sections
2917.04 Revised Code,
and who has properly invoked the constitutional guarantees against
self-incrimination...cannot be compelled to answer questions which might be
self-incriminating, where the grant of immunity is not coextensive with the
scope of the privilege against self-incrimination."
In re Special Grand Jury Investigating
Medicaid Fraud and Nursing Homes (1987), 38 Ohio App. 3d 161 --
grants use and derivative use immunity to persons called before a special grand
jury by the Attorney General. There is no denial of equal protection insofar as
the provision does not grant transactional immunity as does
R.C. 2945.44. Also
see State v. Sinito (1975), 43 Ohio St. 2d 98 construing language in
former R.C. 2945.44, similar to present
R.C. 2939.17 as conferring both use and
derivative use immunity.
State v. Conrad (1990), 50 Ohio St. 3d 1
-- Syllabus: "Where, in obtaining an indictment from the grand jury, the
prosecution uses compelled testimony of a witness immunized pursuant to
101.44 (immunity of person who testifies before a legislative committee), and
where the right of immunity accorded such compelled testimony has not been
waived by the witness under the guidelines set forth in
R.C. 101.44, any
indictment issued against the witness as a result of such grand jury proceedings
must be dismissed. (Kastigar v. United States
, 406 U.S. 441, and New Jersey v. Portash , 440 U.S. 450,
State v. Adamson (1998), 83 Ohio St. 3d
248 -- Immunity granted under
R.C. 2945.44 continues even though the person
granted immunity refuses to testify at a retrial. Statute requires compliance,
but not the sort of full compliance the state claimed. Wife exercised her 5th
Amendment privilege at husband's first trial, then was granted immunity and
testified. Conviction was reversed because she was not competent to testify due
to the marital relationship. After she refused to testify at the second trial
she was indicted for her role in the homicide, in violation of the grant of
State v. Small (1987), 41 Ohio App. 3d 252
-- (1) A defendant's failure to meet the terms of an agreement not to prosecute
nullifies the agreement. (2) The question whether the agreement has been
breached should be determined at an evidentiary hearing. Also see State, ex
rel. Gray, v. Leis (1980), 62 Ohio St. 2d 102.
New Jersey v. Portash (1979), 440 U.S. 450
-- Testimony compelled by a grant of immunity for those called before a state
grand jury is coerced and involves the constitutional privilege against
self-incrimination in its most pristine form. It may not be used for any
purpose, including impeachment. Also see Rowe v. Griffin (11th Cir.
1982), 676 F. 2d 524, 527; Shotwell Manufacturing Co. v. United States
(1963), 371 U.S. 341, 347.
State v. Tomlinson (1997), 125 Ohio App.
3d 13 -- Immunity was granted, then withdrawn when witness continued to assert
his Fifth Amendment privilege. Court finds no abuse of discretion, minimizing
the possibility the witness might have elected to testify if later called by the
State v. Asher (1996), 112 Ohio App. 3d
646 -- Immunity may not be conferred by a prosecutor simply saying so when a
witness is called before a grand jury. A written request must be made to the
court of common pleas, which must then determine whether immunity would further
the administration of justice, and inform the witness, on the record, that by
answering questions, the witness will receive immunity. A municipal court judge
may not presume a grant of immunity and must determine whether the proper
statutory procedure was followed, based on competent evidence.
State ex rel. Ney v. Niehaus (1987), 33
Ohio St. 3d 118 -- Mandamus does not lie to compel a judge to grant immunity
upon written request of the prosecutor.
R.C. 2945.44(A) gives the judge
discretion to determine that immunity would not further the administration of
State ex rel. Leis v. Outcalt (1982), 1
Ohio St. 3d 147 -- Mandamus does lie to compel a judge to set aside an grant of
immunity at the request of the defense and over the objection of the prosecutor.
Syllabus: "Immunity is improperly granted to a witness when the witness has not
refused to answer on the basis of his privilege against self-incrimination, and
the prosecuting attorney has not requested the court to order the witness to
State v. Thompson (1994), 97 Ohio App. 3d
629 -- R.C. 2151.421(G), conferring immunity from civil or criminal liability on
any person reporting in good faith known or suspected child abuse, applies to
the consequences of reporting the abuse to the authorities and does not protect
defendant accused of harboring child without parent's permission.
State v. Wolery (1976), 46 Ohio St. 2d 316
-- Paragraph one of the syllabus: "When fully disclosed to the jury, a promise
of immunity offered by the prosecuting attorney to a witness in exchange for his
testimony affects the weight to be given that testimony, not its admissibility."
State ex rel. Celebrezze v. Howard (1991),
77 Ohio App. 3d 387, 391 -- "Ohio courts have held that Evid. R. 410 applies
only to plea negotiations and where no plea is entered, as in the case of a
grant of immunity, then the exclusionary provisions of Evid. R. 410 do not
In re Poth (1981), 2 Ohio App. 3d 361 --
Headnote: A juvenile court has authority to grant immunity under
even though there was not any criminal proceeding pending against the 'grantee'
of the immunity, and even though the grantee was not a witness at the time of
the grant." (Case may be wrongly decided or reach the proper conclusion without
stating the right reasons.)
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