Do the Ohio Rules of Evidence Apply to Pretrial Motions to Suppress?

by Judge James L. Kimbler

I recently had occasion to re-visit a issue that comes up from time to time and that is whether the Ohio Rules of Evidence apply to pre-trial motions to suppress evidence in criminal cases. This issue involves the Ohio Supreme Court decision of State of Ohio v. Boczar, 113 Ohio St. 3d 148, 2007 Ohio 1251. In that decision, Justice Lundberg Stratton wrote the following in paragraph 19:

"Evid.R. 101(C)(1) provides that the Rules of Evidence do not apply to "[d]eterminations prerequisite to rulings on the admissibility of evidence when the issue is to be determined by the court under Evid.R. 104." Further, Evid.R. 104(A) provides that "[p]reliminary questions concerning * * * the admissibility of evidence shall be determined by the court * * *. In making its determination it is not bound by the rules of evidence except those with respect to privileges." Therefore, the Rules of Evidence do not apply to suppression hearings."

As of April 18, 2010, this decision has been cited for this point of law in the following Ohio Court of Appeals decisions:

State v. Ulmer, 2010 Ohio 695, at P. 10.

State v. Norman, 2009 Ohio 5458 at P. 82.

State v. Keene, 2009 Ohio 1201 at P. 46.

State v. Dubose, 2008 Ohio 4983 at P. 60.

State v. Ingram, 2007 Ohio 7136 at P. 61.