Murder and Related Homicide Offenses in Ohio: Including 12 Ways to Defend a Murder Charge

By James D. Owen

Common defenses to murder infographic

More than 1,000 homicide cases are filed in Ohio courts each year. Many of those are filed here in Franklin County, Columbus, Ohio. If you or a loved one are facing a homicide charge in Ohio, you need to know this information.

Reading the Ohio Homicide Defense Guide will help you to:

  • Know the difference between each type of homicide charge in Ohio — including Aggravated Murder, Purposeful Murder, Serious Violent Felony Murder, Voluntary Manslaughter, Involuntary Manslaughter, Reckless Homicide, Negligent Homicide, and Vehicular Homicide;
  • Learn about 12 different defenses we use to defend Murder and other Homicide cases;
  • Be able to properly evaluate all potential defenses and see what might work for you;
  • Evaluate whether a plea bargain might be right for you; and 
  • Learn what to expect at trial.

The consequences of not fully understanding Ohio’s criminal justice system can be horrific for both guilty and innocent people.

A good example is the case of State of Ohio v. Jeremy Turner. Jeremy plead guilty to a homicide case after his appointed lawyer told him that he could not use self-defense to defend against his Murder case. After pleading guilty, he wrote to me and explained the situation. I wrote him back and let him know that self-defense was potentially a viable defense for him. Later, I filed a motion to withdraw his plea, and ultimately was able to have it withdrawn.

We went to trial, admitted the killing, and Jeremy was acquitted of all homicide charges. He was released from custody on the day of his acquittal.

What is the Difference Between Homicide and Murder?

Let’s start by distinguishing between “homicide” and “murder.”

“Homicide” means the killing of one person by another.  It may be legal.  It may be criminal.  For example, soldiers in battle kill people without committing a crime.  And homeowners kill intruders without committing a crime.

Killing a burglar while acting in self-defense is an example of a “lawful homicide” under Ohio law.

Let’s look at an example of an “unlawful homicide.”  Assume one man is angry at another because the other is dating the first man’s ex-wife.  The angry man confronts the other, who is very calm, and begins to leave.  The angry man pulls a gun, aims, cocks the hammer, and shoots the other man in the heart.  Afterwards, the angry man steps over the body.  He fires 5 more shots into the body.

That example is a Purposeful Murder because the angry man purposely caused the death of the other.  There was no accident.  There was no self-defense.  It was an intentional killing.  The angry man acted with the specific intent to cause the death of the other.

Criminal homicide in Ohio includes different criminal offenses.  Criminal homicide offenses under Ohio law include: Aggravated Murder, Purposeful Murder; Serious Violent Felony Murder, Voluntary Manslaughter, Involuntary Manslaughter, Reckless Homicide, Negligent Homicide, and Vehicular Homicide.

Murder Charges in Ohio

Murder under Ohio law is defined in ORC § 2903.02, and is divided into two categories:

1) The first category is what I refer to as “Purposeful Murder.”  The definition of this type of Murder is straightforward.  It is defined in ORC § 2903.02(A), which says that “[n]o person shall purposely cause the death of another ….”

2) The second category is what I refer to as “Serious Violent Felony Murder,” which means that as a result of attempting or committing a serious crime of violence another person is killed.

“Serious Violent Felony Murder” under Ohio law is defined in ORC § 2903.02(B), which says that “[n]o person shall cause the death of another as the proximate result of the offender’s committing or attempting to commit an offense of violence that is a felony of the first or second degree….”

It is possible to be charged with Murder under the Serious Violent Felony rule even if there is no purpose or intent to kill.  All that is necessary is the participation in committing or attempting to commit a serious violent felony when a death occurs.  The accused does not even have to be the person who killed the victim.

The penalty under Ohio law for both “Purposeful Murder” and “Serious Violent Felony Murder” is set forth in ORC § 2929.02(B) and is, with certain exceptions, imprisonment for an indefinite term of fifteen years to life.

How Can Aggravated Murder Affect my Case?

Aggravated Murder under Ohio law is defined in ORC § 2903.01, and is divided into six categories:

  1. A purposeful killing committed with prior calculation and design, meaning that the killing was planned ahead of time;
  2. A purposeful killing committed in connection with a kidnapping, rape, arson, robbery, burglary, escape, or terrorist act;
  3. A purposeful killing of a child under the age of thirteen;
  4. A purposeful killing while the offender was under detention;
  5. A purposeful killing of a law enforcement officer under certain conditions; and
  6. A purposeful killing of a member of the military under certain conditions.

The penalty for Aggravated Murder without death specifications is set forth in ORC § 2929.03, and is one of the following:

  1. Life imprisonment without the possibility of parole;
  2. Life imprisonment with parole eligibility after twenty full years of imprisonment;
  3. Life imprisonment with parole eligibility after twenty-five full years of imprisonment; or
  4. Life imprisonment with parole eligibility after thirty full years of imprisonment.

Aggravated Murder with Death Penalty Specifications (“Capital Murder”) can only be sought in certain circumstances and is outside the scope of this article.

Why Hire Koenig & Owen, LLC to Handle Your Murder Case?

Our law firm is built on a foundation of winning seemingly unwinnable murder cases.

Mr. Owen, for example, first began to acquire his legal reputation nearly 35 years ago, when, in 1986, he helped engineer the acquittal of Donald Hairston.  Hairston was the accused killer of well-known Columbus businessman and prominent local politician John Meysenburg.  Owen interviewed dozens of people living near the crime scene. 

He then followed up on what they told him, and unearthed critical pieces of evidence overlooked by the police months earlier.  Despite a highly publicized escape attempt by Hairston, who was almost gunned down by a deputy sheriff during the escape attempt, Owen won Ohio’s first death penalty murder acquittal after Ohio reinstated the death penalty in 1981.

Two years later, Owen won a second acquittal in the death penalty murder trial of Anthony Bernard Hollman, who to this day remains a free man.

Shortly after the Hollman victory, Owen won a third acquittal in the death penalty murder trial of William Berry II.

The acquittal of William Berry II was followed by string of big wins in murder and other homicide cases by Owen and others in the firm.  These wins formed the foundation of our law firm, which continues today.

Everyone in the law firm has volunteered to assist and work in conjunction with two nationally recognized innocence projects.

The first is the Ohio Innocence Project at University of Cincinnati Law School, which has won the release of 28 wrongfully convicted Ohioans.

The second, Centurion, Inc., a Princeton-based innocence project, has freed 63 innocent people.

Owen’s best-known work with Centurion helped free two Columbus men, Timothy Howard and Gary James.  Howard and James were innocent but wrongly convicted men sentenced to death in 1977 for a robbery and murder at an East-side Columbus bank.  Owen got involved in the case 20 years after their convictions.  After Owen uncovered evidence of innocence during a painstaking reinvestigation of the case, the Court granted both new trials 26 years after their conviction.

Ultimately, the prosecution dismissed all charges against both and agreed to expunge their convictions.  Afterwards, Owen helped both men receive what were then the largest wrongful imprisonment awards in Ohio history.

Our lawyers have won dismissals and not guilty verdicts in Death Penalty Murder cases, Aggravated Murder cases, Purposeful Murder cases, Serious Felony Murder cases, and a variety of other homicide charges.  This experience gives us a unique body of experience, and it makes us the perfect fit for any person who needs an aggressive defense against a Murder or other homicide charge.

Defining the Types of Murder in Ohio Law

When it comes to murder law, few states have as intricate laws and regulations as Ohio. Here are the different types of murder in Ohio.

Purposeful Murder in Ohio Law

Under Ohio law, to be convicted of Purposeful Murder, a violation of ORC § 2903.02 (A), the State must prove beyond a reasonable doubt that the accused purposefully caused the death of another or the unlawful termination of the pregnancy of another.

Purposeful Murder is a lessor included offense of Aggravated Murder.  Murder differs from Aggravated Murder in that it does not require planning or “prior calculation and design.”  

Purposeful Murder differs from Voluntary Manslaughter because Voluntary Manslaughter, although a purposeful killing, must have been committed after being provoked, and while in the sudden heat of passion.  In other words, Voluntary Manslaughter occurs when one person, after being provoked by another, purposefully kills the other in a sudden heat of passion.

In order to be guilty of Purposeful Murder, one must act with the specific intent to cause the death of another.  Often, in murder cases, the question of the intent of the accused is critical to the outcome of the case.  

Serious Felony Murder in Ohio Law

Under Ohio law, to be convicted of “Serious Felony Murder,” a violation of ORC § 2903.02(B), the State must prove beyond a reasonable doubt that a death occurred “as the result of the accused committing or attempting to commit an offense of violence that is a felony of the first or second degree….”  An offense of violence is defined in ORC § 2901.01(A)(9).  The felony offenses of violence that form the basis for a charge of Serious Felony Murder include: Rape, Robbery, Aggravated Robbery, Burglary, Aggravated Burglary, Kidnapping, Aggravated Arson, and Felonious Assault.

Under Ohio law, the accused does not need to intend to cause the death of another in order to be convicted of Serious Felony Murder.  It is possible to be charged with Murder under the Serious Violent Felony rule even if there is no intent to kill.  All that is necessary is the participation in committing or attempting to commit a serious violent felony when a death occurs during that felony.  It is not even necessary that the defendant is the person who killed the victim.

Let me give some examples:

  • One Actor:  The Serious Violent Felony rule applies to situations where only one person attempts or commits a serious violent felony.  Let’s look at an example involving the offense of Arson.  Assume that an offender sets fire to an unoccupied home while the residents are on vacation and with no intention of hurting anybody.  But a firefighter dies while trying to put out the fire.  If proven, the person who set the fire is guilty of Aggravated Arson, a felony of the first degree.  And he is also guilty of Murder by virtue of the Serious Violent Felony rule.
  • Two or More Actors:  The Serious Violent Felony rule also applies to situations where more than one person attempts to commit a violent crime such as Robbery or Burglary.  If one of the people committing or attempting to commit the crime kills the victim, then all of the participants in the crime can be charged with Murder, through the Serious Violent Felony rule, even if the person charged did not personally kill the victim.  This can include a person who was not even present at the time of the killing, such as a getaway driver, or a person who was involved in planning the crime.
  • Victim or Bystander Killing:  The Serious Violent Felony rule also applies to cases where none of the felony participants killed anyone, such as an attempted robbery when the victim or a bystander kills someone while trying to stop the robbery.  

Murder by Complicity (Aiding and Abetting) in Ohio Law

Under Ohio’s complicity statute, set forth in ORC § 2923.03(A), a person who aids or abets another in the commission of a crime is an accomplice.  In common language, to aid or abet means to assist.  Thus, complicity means that a person is guilty of the crime as an accomplice if he or she assisted in the crime.

“Aiding and Abetting” under Ohio law means that the accomplice “supported, assisted, encouraged, cooperated with, advised, or incited” the crime’s commission.

However, to be an accomplice a person must perform some act to facilitate the commission of the crime.  The act of complicity can be a physical act or verbal conduct (mere words).

Let me give you some examples of the type of actions that can cause a person to be criminally responsible as an “aider and abettor,” and some examples of actions that do not give rise to criminal responsibility.

  • Physical Act:  The act can be a physical act such as giving a person a weapon to kill another person.  A classic case of complicity to commit Aggravated Murder occurred in the case of State v. Luff, 85 Ohio App. 3d 785, 805, 621 N.E.2d 493 (6th Dist. Lucas County 1993).  There, a person knowing of a plan to kill, dug graves.  Later, the victims were lured into a barn and another person shot and killed them.  Luff was found guilty of Aggravated Murder by assisting in the killings by digging the graves.
  • Verbal Conduct (mere words):  Words of advice about how to commit a crime can give rise to criminal liability as an “aider and abettor.”  Words of encouragement can also suffice.  

One example of complicity by encouragement occurred in the case of State v. Fields, 102 Ohio App. 3d 284, 288, 656 N.E.2d 1383 (12th Dist. Butler County 1995).  There, Fields asked a car passenger if he was going to shoot the victims.  When Field did not get a reply, he told the passenger “you ain’t got the balls” to shoot them.  The passenger then retrieved a gun and began firing, killing one of the victims.

The trial judge instructed the jury about the law of complicity and Fields was convicted of Murder as an “aider and abettor.”  The conviction was upheld on appeal.

  • Mere Presence is Not Enough for a Conviction:  Mere presence at a crime scene is not enough for criminal responsibility as an “aider and abettor.”.  See State v. Coleman, 37 Ohio St. 3d 286, 289, 535 N.E.2d 792 (1988), for the proposition that “mere association with one who commits a crime does not make the other person a participant” as an aider and abettor.

For example, if a person accompanies another to a convenience store, and the other robs the store and kills the cashier, the accompanying person is not responsible without proof of the other person’s prior knowledge.

In other words, mere association with the principal offender without proof of prior knowledge is insufficient to make a person criminally responsible as an “aider and abettor.”  

However, if the principal offender has arranged with the other to be present to assist if needed, then the person present is an accomplice because the “act” requirement is satisfied.  This is true even if the accomplice remains silent at the scene.  The planned presence of an accomplice is an encouragement to the principal offender, and therefore makes the other criminally responsible as an “aider and abettor.”

  • Mere Approval or Acquiescence is Not Enough for a Conviction:  An unexpressed approval or acquiescence in a person’s decision to commit a crime is also not enough for criminal responsibility as a “aider and abettor.”

See State v. Stepp, 117 Ohio App. 3d 561, 568-569, 690 N.E.2d 1342 (4th Dist Pike County 1997), for the proposition that “[m]ere approval or acquiescence, without expressed concurrence or the doing of something to contribute to an unlawful act is not aiding and abetting…. In order to aid or abet, whether by words, acts, encouragement, support, or presence, there must be something more than a failure to object, unless one is under a legal duty to object.”

Aggravated Murder in Ohio Law

Aggravated Murder is a more serious charge than murder because it involves not only a purposeful killing, but also requires one of six additional elements, involving either:

  1. A purposeful killing that involved planning by the offender, meaning there was a “prior calculation and design” to commit the murder;
  2. A purposeful killing during the commission of specified felonies, such as kidnapping, rape, arson, robbery, burglary, escape, or terrorist act;
  3. A purposeful killing of a child under the age of thirteen;
  4. A purposeful killing while under arrest, in jail, or prison, or during an escape attempt;
  5. A purposeful killing of a police or other law enforcement officer under certain conditions; or
  6. A purposeful killing of a first responder or member of the military under certain conditions.

Aggravated Murder – Purposeful Killing with Prior Calculation and Design

The first category of Aggravated Murder is one that involves planning.  This category is set forth in ORC § 2903.01(A), which provides that “[n]o person shall purposely, and with prior calculation and design, cause the death of another….”  Instantaneous deliberation is not sufficient to constitute “prior calculation and design.”

The “prior calculation and design” requirement necessitates a scheme designed to implement a calculated decision to kill.  State v. Cotton, 56 Ohio St. 2d 8, 381 N.E.2d 190 (1978).

There is no single test under Ohio law that emphatically distinguishes between the presence or absence of “prior calculation and design.”  For example, there is no rule about how much time must elapse between the development of the scheme and the killing; no rule about how much effort must be put forth in the calculation of the design; and no rule about how detailed a scheme must be in order to meet the definition “prior calculation and design” under Ohio law.  State v. Taylor, 78 Ohio St. 3d 15, 20, 1997-Ohio-243, 676 N.E.2d 82 (1997).

The instructions read to an Ohio jury regarding “prior calculation and design” approved by the Ohio judicial conference give guidance to the jury about what to consider during their deliberations:

“Prior calculation and design” means that the purpose to cause the death was reached by a definite process of reasoning in advance of the homicide, which process of reasoning must have included a metal plan involving studied consideration of the method and the means with which to cause the death. 

To be prior calculation, there must have been sufficient time and opportunity for the planning of an act of homicide, and the circumstances surrounding the homicide must show a scheme designed to carry out the calculated decision to cause the death.  No definite period of time must elapse and no particular amount of consideration must be given, but acting on the spur of he moment or after momentary consideration of the purpose to cause the death is not sufficient.

Factors I have heard prosecutors argue are relevant to determining whether there was “prior calculation and design” include:

  1. Whether the accused knew the victim prior to the time of the killing as opposed to a random meeting that occurred between them;
  2. Evidence of prior threats by the accused to the victim;
  3. Whether the relationship between the accused and victim was strained (in other words, evidence of a compelling motive to kill);
  4. Whether the accused used thought and preparation to decide upon a weapon to be used or a place for an attack;
  5. Whether deliberation and planning occurred over a significant period of time as opposed to an eruption of events occurring over a short time; and
  6. The nature of the attack.

Aggravated Murder with Purpose to Kill and Specified Felonies

The second category of Aggravated Murder is a purposeful killing during the commission of a specified felony.  

This category is set forth in ORC § 2903.01(B), which says, “No person shall purposely cause the death of another or the unlawful termination of another’s pregnancy while committing or attempting to commit, or while fleeing immediately after committing or attempting to commit, kidnapping, rape, aggravated arson, arson, aggravated robbery, robbery, aggravated burglary, burglary, trespass in a habitation when a person is present or likely to be present, terrorism, or escape.”

A logical question for many readers is this: “what is the difference between Purposeful Murder, Serious Felony Murder, and this type of Aggravated Murder?”  Let me explain:

Purposeful Murder means that the accused killed another person with the specific intent, meaning purpose, to cause his or her death.  Purpose to kill is the essential element.

Serious Felony Murder means that the accused committed or assisted in committing a serious violent felony, and that a person was killed as a result.  There is no requirement that anybody acted with the specific intent or purpose to kill.

Aggravated Murder with Purpose to Kill and Specified Felonies means that the accused acted with both the specific intent and purpose to cause the death of another and committed one of the specified serious violent felonies or while fleeing after committing or attempting to commit one of those felonies.

To summarize:

1)  Purposeful Murder requires that the offender acted with the purpose to kill another person.

2)  Serious Felony Murder does not require any intent to kill but does require that a death occurred as the result of committing or attempting to commit one of the specified serious violent felonies.

3)  Aggravated Murder with Purpose to Kill and Specified Felonies requires that the accused acted both with the purpose to cause the death of another and with a connection to one of the specified serious violent felony offenses.  

Aggravated Murder with Purpose to Kill a Child under 13

The third category of Aggravated Murder is a purposeful killing of a child under the age of thirteen.  

This category is set forth in ORC § 2903.01(C), which says, “No person shall purposely cause the death of another who is under thirteen years of age at the time of the commission of the offense.”

There is no requirement that the accused knew that the child was under the age of thirteen at the time of the offense.

Aggravated Murder with Purpose to Kill While the Offender was Under Detention

The fourth category of Aggravated Murder is a purposeful killing while the offender was under detention.

This category is set forth in ORC § 2903.01(D), which says, “[n]o person who is under detention as a result of having been found guilty of or having pleaded guilty to a felony or who breaks that detention shall purposely cause the death of another.”

Detention is defined in very broadly in ORC § 2921.01(D).  It can include more than being in a county jail or a state prison.  For example, if after being placed under arrest, the accused is placed in a car for the purpose of being transported to jail, escapes, and then purposefully causes the death of another in connection with the escape attempt, he can be charged with this type of Aggravated Murder.  

Aggravated Murder with Purpose to Kill a Law Enforcement Officer

The fifth category of Aggravated Murder is a purposeful killing of a law enforcement officer.  

This category is set forth in ORC § 2903.01(E), which says, “[n]o person shall purposely cause the death of a law enforcement officer whom the offender knows or has reasonable cause to know is a law enforcement officer when either of the following applies: (1) The victim, at the time of the commission of the offense, is engaged in the victim’s duties. (2) It is the offender’s specific purpose to kill a law enforcement officer.”

Aggravated Murder with Purpose to Kill a First Responder or Military Member

The sixth and final category of Aggravated Murder is a purposeful killing of a First Responder or Military Member.

This category is set forth in ORC § 2903.01(F), which says, “[n]o person shall purposely cause the death of a first responder or military member whom the offender knows or has reasonable cause to know is a first responder or military member when it is the offender’s specific purpose to kill a first responder or military member.”

Death Penalty Murder in Ohio law

In Ohio, the death penalty may be sought upon a charge of Aggravated Murder, where the indictment contains one or more of the ten specifications set forth in ORC § 2929.04.  The intricacies involved in the indictment, prosecution, and defense of a capital murder case in Ohio are beyond the scope of this article.

Common Defenses to Murder in Ohio law

Though being charged with murder is a very serious offense, it doesn’t mean that you will be convicted. There are many ways to successfully defend yourself against an unfair or untrue murder charge. Here are some of the most common offenses.

Self-defense or defense of others

The first type of defense is self-defense.  This is used if there is evidence that the accused was present, and did cause the death, but the accused was acting in self-defense or acting to defend another.  Once an accused raises the defense of self-defense, Ohio law requires the prosecution to prove beyond a reasonable doubt that the accused was not acting in self-defense.  Under Ohio law, a person not only has the right of self-defense, he also has the right to act to defend another.  This right includes the use of deadly force if acting to protect against death or serious bodily harm.

The provisions of ORC § 2901.06 also recognizes the concept of “Battered Woman Syndome,” as part of Ohio’s self-defense law.  The statute says it is a “matter of commonly accepted scientific knowledge” and allows a person charged with an offense involving the use of force to present expert testimony regarding it to explain and justify the use of force by one person against another.

We used self-defense successfully to win the Jeremy Turner Murder case.  Jeremy was charged with one count of Serious Felony Murder and two counts of Involuntary Manslaughter, all with firearm specifications.  He was also charged with one count of Tampering with Evidence, and one count of Possessing a Weapon While Under Disability.  Jeremy claimed self-defense.  He was found NOT GUILTY of all counts except charge of possessing a weapon while under disability.  Jeremy was released from jail the day of the NOT GUILTY verdicts because he had already served his time for the weapons under disability offense. 

There was a mistaken identification

A second type of defense is what is often called the identity defense.  One of the primary causes of wrongful convictions is false identification.  This frequently occurs when the police use an unduly suggestive line-up, or photo identification process, or simply because the identification was not accurate.  An after-the-event identification, particularly under the stressful conditions of a homicide, can be inherently unreliable. 

Even if identified by one or more witnesses, the accused may have not even been present, or, even if he was, he may have not been the person who caused the death of the person who was killed.  We successfully used this defense in a number of cases, including an Aggravated Murder case where the State of Ohio was seeking the death penalty.  The expert witnesses we have retained in these cases are among the foremost in the United States.

The death was an accident

A third type of defense is accident.  This defense is used if the accused did not purposely cause the death of another, but rather accidently caused the death.  Under Ohio law, in order to be guilty of Purposeful Murder, the State must prove beyond a reasonable doubt that the accused acted with the specific intent to cause the death of another.  Evidence of accident, as opposed to acting with purpose to kill, is often used to defend against specific intent.

We have used this defense successfully in two Aggravated Vehicular Homicide cases, and in one Aggravated Murder case.

The instructions read to an Ohio jury regarding the defense of “accident” approved by the Ohio judicial conference give guidance to the jury about what to consider during their deliberations.  This is the relevant part of what is generally read to the jury:

Accident
The Defendant denies any purpose to cause the death of another.  He denies that he committed an unlawful act and says that the result was accidental.

An accidental death is one that occurs unintentionally and without any design or purpose to bring it about.  An accident is a mere physical happening or event, out of the usual order of the things and not reasonably foreseen as the natural or probable result of a lawful act.

If after considering all the evidence, including that on the subject of accident, you are not convinced beyond a reasonable doubt that [the accused] had a purpose to cause the death of another, you must return a verdict of not guilty.

The State is Relying on Conclusions Not Supported by Science

We have successfully defended homicide cases based on science.  One example occurred in a Portage County, Ohio case where the prosecution falsely believed that the bedliner of our client’s truck contained traces of human blood in the exact location where a confidential informant claimed that our client transported a dead body. 

Testing by our expert witness demonstrated that the substance found was in fact human sweat, not blood, and that the DNA from the substance was degraded to the point that it could not be connected to any specific person.

The client was present but not involved

A fifth type of defense is called the “present but not involved” defense, or the “bystander” defense.  This is used if there is evidence that another person, also present at the scene, was the person who did the killing.  In other words, defense counsel may argue that the accused was a mere bystander.

We have successfully defended two homicide cases where we admitted our client was present but argued he was not involved in the killing.  One example is the Franklin County, Ohio case of William Berry II.  We used this defense to defend him in a death penalty murder case, and the jury found him not guilty of all charges.

The client did not act knowingly or with purpose to cause the death

This is similar to the accident defense but can also include other situations where the client did cause a death but did not intend for a person to die.

There was a flawed police investigation

We have used this approach to successfully represent Timothy Howard, Gary James, Randy Resh, and Robert Gondor, all of whom were exonerated of homicides they did not commit.

The death was not Murder but a lesser offense such as negligent or reckless homicide.

We defended Jacob M. in a Franklin County, Ohio Aggravated Murder case where our client was charged with Aggravated Murder and Murder in connection with the close-range shooting and killing of his wife.  Our client admitted to the police that he shot her. 

Our defense was that the shooting was an accidental or, at worst, negligent or reckless homicide.  Our client was acquitted of both Murder and Aggravated Murder but was convicted of the lesser offense of Reckless Homicide.

The cause, manner, or time of death was not as believed by the prosecutor

We have successfully used this defense in the Aggravated Vehicular Homicide case of Timothy C., and we are currently using it in a Murder case, where our client is accused of committing the offense of Serious Felony Murder of a toddler by an shaking him.  Our medical experts believe that the evidence does not support a conclusion that there was a shaking of the child.

There was a false or coerced confession

We have attempted this defense in an Aggravated Murder case but have not yet been successful with it.  We have, however, successfully used this defense to gain a dismissal in an alleged gross sexual imposition case.  The experts we have retained are among the foremost experts in false confessions in the United States.

The client was not guilty by reason of insanity under Ohio law

We have successfully used the insanity defense to obtain a dismissal of criminal charges, but not yet in a murder case.

The use of a character defense

Character of the Accused

Ohio Evidence Rule 404(A)(1), entitled “Character of accused says “[e]vidence of a pertinent trait of character offered by the accused … is admissible.”

We have successfully used what is known as a “Character Defense” in Felonious Assault cases, where a shooting or beating with a deadly weapon was involved.  When used, it is generally used in conjunction with a claim of self- defense.  We have not yet used it in a homicide case, but always evaluate where it could be applicable.

Character evidence, for example, of the accused’s reputation for peacefulness, or honesty, or truthfulness can be offered by people who know the accused person and are familiar with his or her reputation in the community.

The instructions read to an Ohio jury about the defense of “character and reputation” approved by the Ohio judicial conference give guidance to the jury about what to consider during their deliberations.  This is the relevant part of what is often read to the jury:

Character and Reputation

The defendant has offered testimony tending to show his reputation in the community in which he lives.  Evidence of this nature is admitted because one who has a good reputation may be less likely to commit an offense than one who lacks that reputation.  However, good character or good reputation is not an excuse for an offense.

In determining the guilt or innocence of the defendant, you may consider the testimony of his reputation and give it such weight as you determine it should receive in connection with all the evidence.

We used this defense successfully in a Franklin County, Ohio case for our client, Anthony P.  Mr. P. was an African-American Columbus man accused of violently assaulting a white neighbor with a set of brass knuckles. 

Anthony denied he possessed or used brass knuckles and claimed self-defense.  We called several of Anthony’s co-workers who testified about Anthony’s reputation for truthfulness and peacefulness.  After a very short deliberation, the jury unanimously found Anthony NOT GUILTY.

After the verdict, we spoke to the jurors.  They were impressed with the testimony of Anthony’s co-workers.  The jurors focused on the coworkers’ testimony.  It compelled them to believe Anthony’s explanation about acting in self-defense.  That experience proved to me how powerful a character defense can be.

We do not frequently use a character defense for the simple reason that it can open the character of the accused to examination by the prosecution.  But in cases where we have used it, it has been extremely effective, resulting in NOT GUILTY verdicts time and time again.

Character of the Prosecuting Witness

Ohio Evidence Rule 404(A)(3), entitled “Character of Witness,” says “[e]vidence of a witness on issues of credibility is admissible as provided in Rules 607, 608, and 609.”  Ohio Evidence Rule 607 allows opinion and reputation evidence to be used to impeach the credibility of a witness based on the witness’s character for truthfulness or untruthfulness.

I successfully used these evidence rules to challenge the primary eyewitness in the William Berry Aggravated Murder case.  We destroyed this eyewitness’s credibility based on the testimony of three persons who knew him well and testified his reputation was that of a pathological liar.  The jury unanimously found William Berry NOT GUILTY of all charges based in major part on the testimony we presented challenging the primary eyewitness’s credibility.

Penalties for Murder in Ohio

Penalties for Purposeful Murder in Ohio

The penalty for Purposeful Murder under Ohio law is a term of imprisonment of 15 years to life.

Penalties for Serious Felony Murder in Ohio

The penalty for Serious Felony Murder under Ohio law is a term of imprisonment of 15 years to life.

Penalties for Murder through Complicity in Ohio

The penalty for both Purposeful Murder through Complicity and Serious Felony Murder through Complicity under Ohio law is set forth in ORC § 2929.02 (B), and is, with certain exceptions, an indefinite term of imprisonment of 15 years to life.  Exceptions are listed below:

  • If a firearm was used, and if a firearm specification is included in the indictment, then there is an additional 3-year mandatory term added to the minimum term of imprisonment.
  • If the victim of the offense was under the age of 13, and there was a sexual motivation specification included in the indictment, then the court is required pursuant to ORC § 2929.02(B)(2) to impose an indefinite term of imprisonment of 30 years to life.
  • If the person is convicted of a sexual motivation specification included in the indictment and a sexually violent predator specification included in the indictment, then the court is required ORC § 2929.02(B)(3) to impose a life term of imprisonment without the possibility of parole.

Penalties for Aggravated Murder in Ohio

The penalty for Aggravated Murder without death specifications is set forth in ORC § 2929.03, and is one of the following:

  • life imprisonment without the possibility of parole;
  • life imprisonment with parole eligibility after twenty full years of imprisonment;
  • life imprisonment with parole eligibility after twenty-five full years of imprisonment; or
  • life imprisonment with parole eligibility after thirty full years of imprisonment.

Penalties for Death Penalty Murder in Ohio

Death Penalty Murder cases are beyond the scope of this article, and the penalty phases of these trials are extremely complex.  However, pursuant to ORC § 2929.02(A), the possible penalties to be imposed by the court are:  1) life imprisonment with parole eligibility after twenty-five full years of imprisonment; 2) life imprisonment with parole eligibility after thirty full years of imprisonment; 3) life imprisonment without the possibility of parole; or 4) death.

A Summary of Related Offenses in Ohio

Negligent Homicide Offenses

Under Ohio law, to be convicted of Negligent Homicide, a violation of ORC § 2903.05, the State must prove beyond a reasonable doubt that the accused negligently caused the death of another or of an unborn child by means of a deadly weapon.

Under Ohio law, you commit the crime of Negligent Homicide if you negligently killed someone with a deadly weapon.

Criminal Negligence under Ohio law is defined in ORC § 2901.22(D).  Here’s how the Ohio Revised Code defines it:

A person acts negligently when, because of a substantial lapse from due care, the person fails to perceive or avoid a risk that the person’s conduct may cause a certain result or be of a certain nature.  A person is negligent with respect to circumstances when, because of a substantial lapse from due care, the person fails to perceive or avoid a risk that such circumstances may exist.  

The definition given by the Ohio Revised Code is difficult to understand, so let me give you a few examples that could cause a person to be charged with Negligent Homicide under Ohio law:

  • a person jokingly points a gun at a friend, he drops it, and by accident the gun fires kills the friend.
  • a hunter acts impulsively by shooting wildly at a target he believes is a deer, and by accident kills another hunter or perhaps even a friend in the woods.
  • a person carelessly leaves a loaded gun unlocked in a place where his child has easy access to it, grabs it, shoots it, and kills another family member.

Negligent Homicide is a misdemeanor of the first degree and can result in a jail sentence of up to 180 days.

Reckless Homicide Offenses

Under Ohio law, to be convicted of Reckless Homicide, a violation of ORC § 2903.041, the State must prove beyond a reasonable doubt that the accused recklessly caused the death of another or of an unborn child.

Under Ohio law, then, you commit the crime of Reckless Homicide if you recklessly cause the death of another.  Reckless Homicide in Ohio is a felony of the third degree, punishable by a prison sentence of up to 36 months.

Criminal Recklessness under Ohio law is defined in ORC § 2901.22(C).  Here’s how the Ohio Revised Code defines it:

A person acts recklessly when, with heedless indifference to the consequences, the person disregards a substantial and unjustifiable risk that the person’s conduct is likely to cause a certain result or is likely to be of a certain nature.  A person is reckless with respect to circumstances when, with heedless indifference to the consequences, the person disregards a substantial and unjustifiable risk that such circumstances are likely to exist.  

In State v. Peck, 172 Ohio App.3d 25, 872 N.E.2d 1263, 2007-Ohio-2730, at ¶¶ 10, 12, and 13 the Franklin County, Ohio Court of Appeals outlined the law applicable to the Reckless Homicide case that was on appeal before it.

{¶ 10} In order to convict [a person] of reckless homicide, the state [has] to prove that [the accused] recklessly caused [a person’s] death.  R.C. 2903.041.  A person acts recklessly “when, with heedless indifference to the consequences, he perversely disregards a known risk that his conduct is likely to cause a certain result.”  R.C. 2901.22(C).  A risk is defined as a strong probability, as contrasted with a remote possibility, that a certain result will occur.  R.C. 2901.01(A)(7).  Thus, the State had to prove that [the accused], with heedless indifference to the consequences, perversely disregarded a known risk that his conduct was likely to cause a certain result.

{¶ 12} A mere failure to perceive or avoid a risk, because of a lack of due care, does not constituted reckless conduct.  Columbus v. Adkins (Sept. 27, 1984), Franklin App. No. 83AP-977, 1984 WL 5923.  Instead, one must recognize the risk of the conduct and proceed with a perverse disregard for that risk.  State v. Covington (1995), 107 Ohio App.3d 203, 206, 668 N.E.2d 520; State v. Whitaker (1996), 111 Ohio App.3d 608, 613, 676 N.E.2d 1189 (noting that to be reckless, “one must act with full knowledge of the existing circumstances”).

{¶ 13} In contrast to the actor who proceeds with knowledge of a risk, the failure of a person to perceive or avoid a risk that his conduct may cause a certain result or may be of a certain nature is negligence.  R.C. 2901.22(D).  Recklessness requires more than ordinary negligent conduct.  The difference between the terms “recklessly” and “negligently” is normally one of a kind, rather than of a degree.  “Each actor creates a risk of harm.  The reckless actor is aware of the risk and disregards it; the negligent actor is not aware of the risk but should have been aware of it.”  (Emphasis sic.)  Wharton’s Criminal Law (15th Ed.1993) 170, Section 27, see, also State v. Wall (S.D.1992), 481 N.W.2d 259, 262.

The definition given by the Ohio Revised Code, even as explained by the courts, is difficult to understand.   Let me give you two examples that could cause a person to be charged with Reckless Homicide under Ohio law:

  • A person named Joe is lying in bed with his girlfriend, Tammy.  Joe’s roommate, named Karl, returns from a bar drunk.  Karl enters the bedroom and begins fooling around with a loaded pistol the two men kept in the house.  The gun accidently goes off, striking and killing Tammy.  In this case, the combination of intoxication and playing with a loaded gun will probably result in Karl being charged with Reckless Homicide.
  • A person named Bruce was installing scaffolding too close an overhead electric wire.  He noticed that several bolts were missing from the scaffolding and that he was taking a chance using it.  Nevertheless, Bruce told his co-worker, Dave, that he had securely installed the scaffolding.  Dave climbed to the top of the scaffolding, but it collapsed, knocking down the electric wire.  Dave suffered a severe electrical shock.  He died in the emergency room several hours later.  Here, the combination of installing the scaffolding too close to an electric line and failing to ensure that the scaffolding was properly assembled will likely result in Dave being charged with Reckless Homicide.

Reckless Homicide in Ohio is a felony of the third degree and is punishable by a maximum sentence of up to three years imprisonment.

Involuntary Manslaughter Offenses

Involuntary Manslaughter under Ohio law is defined in ORC § 2903.04, and is divided into two types:

1)  The first type is what I refer to as “Involuntary Manslaughter Resulting from an Underlying Felony.”  The definition of this type of Manslaughter is straightforward.  It is defined in ORC § 2903.04(A), which says that “[n]o person shall cause the death of another … as a proximate result of the offender’s committing or attempting to commit a felony.”

2)  The second type is what I refer to as “Involuntary Manslaughter Resulting from an Underlying Misdemeanor.”  The definition of this type of Manslaughter is defined in ORC § 2903.04(B) and is identical to the first type except instead of an underlying felony offense, it involves an underlying misdemeanor of any degree.

The relevant part of the definition says that “[n]o person shall cause the death of another … as a proximate result of the offender’s committing or attempting to commit a misdemeanor of any degree….”

The Mental State Required for an Accused to Commit Involuntary Manslaughter in Ohio

No mental state such as purpose, knowledge, recklessness, or negligence is needed in connection with the death for a person to be convicted of Involuntary Manslaughter.

In other words, in order to be convicted of Involuntary Manslaughter the accused need not to have intended for a person to be person killed.  The accused need not have intended for a death to happen.  The accused need not to have knowledge that a person would be killed.  The accused need not to have recklessly caused the death. And the accused need not to have negligently caused the death.  

The only mental element required is that necessary for the accused to commit or attempt to commit the underlying crime.

Causation is required for an Accused to be Convicted of Involuntary Manslaughter in Ohio

For Involuntary Manslaughter to occur under Ohio law, the death of the alleged victim must be directly connected with the underlying crime as part of one continuous action or chain of events.  

Under Ohio law, to be convicted of Involuntary Manslaughter, a violation of ORC § 2903.04, the State must prove beyond a reasonable doubt that the accused recklessly caused the death of another or of an unborn child.

Penalties for Involuntary Manslaughter under Ohio Law

Involuntary Manslaughter Resulting from an Underlying Felony is a felony of the first degree.  It is punishable by a definite term of imprisonment from a minimum of three years up to a maximum of eleven years in prison.  

Involuntary Manslaughter Resulting from an Underlying Misdemeanor is a felony of the third degree.  It is punishable by a definite term of imprisonment from a minimum of nine months up to a maximum of up to 36 months in prison.

If the offender was under the influence of alcohol or a drug of abuse at the time of the offense, then the sentencing court is required to impose a mandatory prison term.

Voluntary Manslaughter Offenses

Voluntary Manslaughter under Ohio law is defined in ORC § 2903.03(A), which says:

No person, while under the influence of sudden passion or in a sudden fit of rage either of which is brought on by serious provocation occasioned by the victim that is reasonably sufficient to incite the person into using deadly force, shall knowingly cause the death of another…

The offense of Voluntary Manslaughter can be directly charged by indictment.

But even if it is not directly indicted, the offense of Voluntary Manslaughter may become important if the accused is indicted for Aggravated Murder, or for Purposeful Murder, and claims the killing occurred in a sudden passion or in a sudden fit of rage after being provoked by the alleged victim.  In that case, the accused is not guilty of either Aggravated Murder, or Purposeful Murder but rather is guilty of the lesser-degree offense of Voluntary Manslaughter.

The Difference between a Lesser-Included Offense and a Lesser-Degree Offense

A lesser-included offense is a crime that is contained within a more serious crime.  Voluntary manslaughter does not technically fit into the category of a lesser-included offense of Aggravated Murder or Purposeful Murder, because it requires that a person not only committed one or more of the elements of Aggravated Murder or Purposeful Murder, but also that an additional element was involved – a killing that occurred in a sudden passion or in a sudden fit of rage.

Let me explain the difference between the three offenses.  A purposeful killing with prior calculation or design is Aggravated Murder.  A purposeful killing without prior calculation or design is Purposeful Murder.  A killing done knowingly or purposely while under the influence of a sudden passion or fit of rage provoked by the alleged victim is Voluntary Manslaughter.

To sum up, Voluntary Manslaughter is not technically a lesser-included offense of Aggravated Murder or of Purposeful Murder.  Rather, Voluntary Manslaughter is a lesser-degree offense.  However, in some cases Ohio law allows a person accused of Aggravated Murder or Purposeful Murder to request the jury to be instructed on the lesser-degree offense of Voluntary Manslaughter.  

To obtain a jury instruction on Voluntary Manslaughter as a lesser-degree offense, the accused must point to evidence that he or she acted under the influence of sudden passion or in a sudden fit of rage caused by the alleged victim.

If the jury finds that the accused did commit the elements of the crime of Aggravated Murder or of Purposeful Murder but that he or she acted under the influence of sudden passion or in a sudden fit of rage, then they are instructed to find the accused not guilty of Aggravated Murder, not guilty of Purposeful Murder, but GUILTY of Voluntary Manslaughter.

Sudden Passion or Sudden Fit of Rage

Sudden passion or sudden fit of rage requires that the killing must be performed under the influence of sudden passion or in the heat of blood, without time for reflection or for passions to cool.  State v. Muscatello, 55 Ohio St. 2d 201, 378 N.E.2d 738 (1978).  The Ohio statute once included “extreme emotional stress which may be the result of a build-up of stress over a period of time” as an element of voluntary manslaughter, but the statute was amended in 1982 to omit this language.  

Provocation

“The element of provocation mitigates the offender’s culpability.”  State v. Tyler, 50 Ohio St. 3d 24, 37, 553 N.E.2d 576 (1990) Provocation is the only grounds in Ohio for reducing an intentional killing to voluntary manslaughter.   The offender must be provoked by the victim, and not by a third party under Ohio statute.  

Provocation must be adequate.  In Ohio, there are two aspects in recognizing whether provocation is adequate:  a “subjective component” and an “objective component.”

The “subjective component” refers to whether the offender himself was in such a fit of rage at the time of the offense that he lost his self-control.

The “objective component” refers to whether a reasonable person would lose self-control under those same circumstances.

The Supreme Court of Ohio explained:  

First, [to meet the objective component] the provocation must be sufficient to arouse the passions of an ordinary person beyond the power of his or her control.  Second, if that objective test is met, [to meet the subjective component] the defendant must show that in this particular case he was actually under the influence of sudden passion or in a sudden fit of rage.

State v. Shane, 63 Ohio St. 3d 630, 634-35, 590 N.E.2d 272 (1992).

In other words, “subjective” refers to whether the offender himself was actually in such a fit of rage that he lost his self-control; and “objective” refers to whether a reasonable person, under the same circumstances, would have lost self-control.

Mere words are not adequate in most cases.  State v. Shane, 63 Ohio St. 3d 630, 590 N.E.2d 272 (1992).   For example, finding a spouse in bed with another woman may be adequate provocation.  Being told by a spouse that he is having an affair is not adequate provocation.

Cooling-off period

Whether or not there was a reasonable time for passions to cool is usually decided by a jury, unless, based on the evidence, it is clear that there was a cooling off period.

Let me give you an example from a noteworthy Ohio case, where the Court of Appeals explained:

The record shows that this homicide was not committed under the influence of sudden passion … [because the] Defendant was originally unarmed, then obtained a loaded firearm that he had brought with him, forced his way into a house to confront the victim, kidnapped the victim and her mother for an extended period of time, and finally shot the victim repeatedly in the front and back.

State v. Hollingsworth, 143 Ohio App. 3d 562, 569, 758 N.E.2d 713 (8th Dist. Cuyahoga County 2001.

Because there was no evidence of suddenness, the defendant was not entitled to a jury instruction on the lesser-degree offense of voluntary manslaughter.

Voluntary Manslaughter as an Affirmative Defense to Aggravated Murder or Purposeful Murder

In some other States, but not in Ohio, if a person is charged with Aggravated Murder or Purposeful Murder, and the accused is seeking a reduction to the lesser-degree offense of Voluntary Manslaughter, the burden is on the prosecution to prove that adequate provocation, an element of voluntary manslaughter, did not exist.

 In other words, in some States, but not in Ohio, if an accused presents some evidence that he or she was provoked, the prosecution is required to prove the provocation was not sufficient to justify a jury instruction on the lesser-degree offense of Voluntary Manslaughter.

The other states have it right.  Ohio has it wrong.

In Ohio, the burden of proof is on the defendant.  Here is how it works in Ohio.  In Ohio, if the accused is indicted for either Aggravated Murder or Purposeful Murder and presents some evidence that he or she was provoked by the alleged victim, then the accused is entitled to a jury instruction on the lesser-degree offense of Voluntary Manslaughter. 

However, the jury instruction places the burden of proof as to the adequacy of the provocation on the accused.  The Ohio Supreme Court has specifically ruled on this, holding that “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.”  State v. Rhodes, 63 Ohio St. 3d 613, 620, 590 N.E.2d 261 (1992).

In another case, the Ohio Supreme Court commented that the statute “permits a defendant to mitigate a charge of aggravated murder or murder to manslaughter if the defendant establishes the mitigating circumstances” and concluded in the case before it that the “jury should have been instructed to consider the mitigating evidence to determine whether appellant proved voluntary manslaughter.”  State v. Benge, 75 Ohio St. 3d 136, 140, 1996-Ohio-227, 661 N.E.2d 1019 (1996) 

Placing the burden of proof on the defendant instead of the prosecution raises a constitutional issue in addition to the statutory issue.   The United States Supreme Court ruled that placing the burden of proving “heat of passion” on a homicide defendant under the laws of the state of Maine violated due process. 

Mullaney v. Wilbur, 421 U.S. 684, 95 S. Ct. 1881, 44 L. Ed. 2d 508 (1975).  The Court considered the “heat of passion” issue as an element of the crime. Two years later, however, the Court ruled that a New York law that placed the burden of proving an “extreme emotional disturbance” on a homicide defendant did not violate due process. Patterson v. New York, 432 U.S. 197, 97 S. Ct. 2319, 53 L. Ed. 2d 281 (1977).

These two cases are difficult to reconcile. The “extreme emotional disturbance” requirement is merely a modern formulation of the “heat of passion” rule; it reduces murder to manslaughter.  The Court distinguished Wilbur on the grounds that Maine, but not New York, had defined “malice aforethought” as an element of murder. 

As such, due process prohibited shifting the burden of persuasion on this element to the accused.  This distinction can be criticized because a state remains free to define crimes in ways to avoid the Wilbur result.  In State v. Rhodes, the Ohio Supreme Court held that placing the burden of proof on the defendant did not violate due process.

Voluntary Manslaughter Cases Frequently Raise a Question Self-Defense

In many Murder cases we have defended, a question is raised about whether the accused was acting in self-defense.  Self-defense is used if there is evidence that the accused was present, did cause the death, but our client was acting to defend himself or another.  Once our client raises the defense of self-defense, Ohio law requires the prosecution to prove beyond a reasonable doubt that the accused was not acting in self-defense.  Under Ohio law, a person not only has the right of self-defense, he or she also has the right to act to defend another.  This right includes the use of deadly force if acting to protect against death or serious bodily harm.

The difference between self-defense and Voluntary Manslaughter can be close.  The Columbus, Ohio Murder case in which the State of Ohio indicted our client, C. M. for Murder is a classic example.  Our client was at a bar when another person started a fight, threatened him, and eventually displayed a weapon.  A struggle ensued and our client shot and killed the alleged victim during the struggle. 

The prosecutor claimed it was murder.  That is what they indicted him for.  We said the shooting was self-defense.  The prosecutors disagreed but acknowledged we would be entitled to a jury instruction on the lesser-degree offense of Voluntary Manslaughter if we went to trial. 

Eventually, however, after interviewing the witnesses from the bar on the night of the shooting, including video taken by patrons and the bar owner, it became clear that it was self-defense.  For that reason, we were able to get a complete dismissal of all the homicide charges, although our client was convicted on a related charge of having a weapon under disability, a third-degree felony. 

In State v. Perdue, 153 Ohio App. 3d 213, 218, 2003- Ohio-3481, 792 N.E.2d 747 (7th Dist. Mahoning County 2003), the Court distinguished between self-defense and voluntary manslaughter:

[T]o prove voluntary manslaughter the [accused] must show a state of mind “akin to anger, hatred, jealousy, and/or furious resentment.”  Thus, self-defense requires a showing of fear, while voluntary manslaughter requires a showing of rage.  “Fear alone is insufficient to demonstrate the kind of emotional state necessary to constitute sudden passion or fit of rage.”  (Citations omitted).

Our investigation during our representation of C.M. ultimately showed our client shot and killed the alleged victim out of fear, not rage.  That is why we were able to get the homicide charge dismissed.  It was self-defense not Voluntary Manslaughter, and certainly not Purposeful Murder, for which the prosecution indicted our client.

Penalties for Voluntary Manslaughter under Ohio law

Voluntary manslaughter is a first-degree felony, punishable by a minimum sentence of 3 years in prison and a maximum sentence of 11 years in prison.

Types of Vehicular Homicide

There are four ways a person can be charged in Ohio with criminally causing the death of another in a car or other vehicle.  Those are:

  • Aggravated Vehicular Homicide – Drug or Alcohol Related
  • Aggravated Vehicular Homicide – Reckless Driving
  • Vehicular Homicide
  • Vehicular Manslaughter

These four criminal offenses range in level of severity from Vehicular Manslaughter, which is a second-degree misdemeanor punishable by a maximum of 90 days in jail, to Aggravated Vehicular Homicide – Drug and Alcohol Related, which can be a first-degree felony punishable by up to eleven years in prison.

Look here more information about the particulars of these four types of vehicular homicide offenses

How to Build a Successful Defense in an Ohio Homicide Case

To successfully defend a murder or other homicide charge in Ohio, important steps need to be taken starting at the beginning of the case.  Those steps are outlined in our Ohio Felony Defense Guide.  They include:

Understanding the Elements of the Criminal Offense(s) Charged

To successfully defend a Murder or other homicide case in Ohio the first thing your lawyer needs to do is to look at the statute(s) for the criminal offense(s) for which you were charged.  He or she also needs to review the jury instructions that would be read by the Court to a jury about the charge(s). 

This is the legal framework through which a jury would evaluate the evidence presented at trial.  Your lawyer needs to fully understand this legal framework before he or she evaluates the evidence.  It is an important part of what your lawyer will be speaking to the jury about during the jury selection process, in opening statement, and during closing argument.

Obtaining Pre-trial Discovery

At the same time your lawyer is analyzing the legal framework applicable to the offenses for which you are charged, he or she must gather all the evidence that law enforcement has obtained during their investigation.  This is done through the discovery process which is outlined in detail in our Ohio Felony Defense Guide.  You need to look at this section of it, because it applies to every single homicide case indicted in Ohio.

Conducting a Defense Investigation

After reviewing and analyzing applicable jury instructions and gathering the evidence the prosecution has available to it, the next step is to conduct a complete factual investigation.  This is accomplished initially in four ways:

  • Pretrial discovery
  • Filing and following-up on pretrial motions
  • Visiting the crime scene and speaking with potential witnesses
  • Understanding science that applies to the case, possibly with help from expert witnesses

Developing a reasonable Theory of Innocence

The necessity for a reasonable theory of innocence is discussed in the Ohio Felony Defense Guide.  First, the theory must be reasonable.  Second, it must be consistent with as much of the known evidence as possible.  It must be consistent in order to be believable. 

It usually consists of one or more of the twelve defenses we outlined earlier in this article.  Once a theory is developed, everything the lawyer does is designed to advance the theory of innocence.

Filing and Litigating Pretrial Motions

Rules 12 and 47 of the Ohio Rules of Criminal Procedure discuss the filing of pretrial motions.  The type of motions that need to be filed and the time deadlines for each type are discussed in the Ohio Felony Defense Guide. 

The types of pretrial motions that can be filed include motions to compel discovery; motions to compel a meaningful bill of particulars; motions to suppress evidence on the basis that it was unconstitutionally obtained; motions to exclude evidence as scientifically unreliable; motions to exclude evidence due to inadmissibility under the Ohio Rules of Evidence; motions to sever (meaning to grant separate trials); and a host of others.

The Rest of the Story

Once a reasonable theory of innocence is developed then it is up to your lawyer to be ready, willing, and able to guide you through the process of resolving your case, whether through the plea-bargaining process or at trial.  We discuss that in the Ohio Felony Defense Guide, and give this advice about how to find the right lawyer for your case:

Here are some final thoughts about what attorney you might want to consider hiring to guide you through this process.  Hiring a really good, first-class criminal defense attorney can make all the difference in the world.  Finding such a lawyer, however, is not always easy.  In central Ohio alone, there are literally hundreds of lawyers who call themselves criminal defense attorneys.  If you ask them, they will all tell you they are very good, great, even the best, at defending felony criminal cases.  Here are a few thoughts that might help you make a wise choice.

The best criminal defense attorneys are those with a proven and verifiable record taking cases to trial and, at least on occasion, winning acquittals.  The reason is twofold.  First, the prosecutor will know during the plea negotiation process that if the case is not resolved short of trial then your attorney will be ready, willing, and able to try the case and even win an acquittal.  That gives you a strong edge at negotiating a better plea, if that is the route you choose to take.  Second, if your case does go to trial, then your lawyer will have a much better knowledge and experience base about what it takes to win.

You would be stunned to discover the number of so-called criminal defense attorneys who have never ever tried a felony criminal case to verdict, let alone have won a single acquittal.  Those lawyers have no real chance at favorably resolving your case.  The real difficulty is getting potential lawyers to honestly reveal their record to you. 

Good criminal defense lawyers are proud of their record and can give you a list of some of the important cases they have tried and won.  Mediocre ones will not.  While it is important to remember that prior wins cannot predict future results, an attorney with an established record is nearly always in a better position to favorably resolve the case, whether through plea negotiations or trial.

The advice I gave when I wrote the Ohio Felony Defense Guide is the same I have today.  Find the right lawyer, preferably one with a proven record.  Meet with your lawyer regularly.  Pursue all pretrial discovery to which you are entitled.  Get involved in your defense.  Make sure relevant pretrial motions are evaluated, and if applicable, timely filed.  Only then will you know that you got the best result reasonably attainable under the circumstances of your case.