The Confrontation Clause and Pretrial Motions

By Judge James L. Kimbler

In an earlier note, I discussed whether the Ohio Rules of Evidence apply to pre-trial hearings on motions to suppress evidence. Ohio courts have held that it does not. As a result, a trial judge can consider evidence that would be objectionable at trial when ruling on a motion to suppress. Such evidence might well include hearsay evidence.

If a trial court does receive hearsay evidence at a pretrial hearing, has it violated the defendant's right to confront his or her accusers? That is, even if the Ohio Evidence Rules don't at hearing on motions to suppress, do the Confrontation Clause of the Ohio and Federal Constitutions prevent trial courts from considering hearsay evidence at such hearings?

Ohio courts have quoted language from United States Supreme Court decisions which refer to the right of confrontation as being a "trial right." An example is the following language from a decision of the Court of Appeals for the Ninth Appellate District on the issue of whether there is a right of confrontation at a hearing on a motion filed pursuant to Crim. R. 33:

"As for Cureton's arguments under the Crim.R. 33 motion, As for Cureton's arguments under the Crim.R. 33 motion, the Confrontation Clause provides two types of protections for a criminal defendant: the right physically to face those who testify against him and the right to conduct cross-examination. Pennsylvania v. Ritchie (1987), 480 U.S. 39, 51, 94 L. Ed. 2d 40, 107 S. Ct. 989. "The opinions of this Court show that the right to confrontation is a trial right, designed to prevent improper restrictions on the types of questions that defense counsel may ask during cross-examination." (Emphasis sic.) Id. at 52. Cureton has presented no authority that states his right to confront witnesses extends to a Crim.R. 33 hearing on a motion for a new trial."
(State v. Cureton, 2003 Ohio 6010 at P32)

In State v. Irwin, 2007 Ohio 4496, the Court of Appeals for the Seventh Appellate District wrote the following at P22:

"Appellant is correct that Crawford has a bearing on her assignment of error because Crawford, and the entire legal history of the confrontation clause, reveals the right of confrontation is a trial right."

Given the fact that at least two Ohio appellate courts have stated that the right of confrontation is a trial right, it would seem that the Confrontation Clause does not bar a trial court from receiving hearsay evidence at a hearing on a motion to suppress.

Whether, of course, a trial court would be persuaded by such evidence is another matter entirely.

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.