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National Crime Victim Law Institute

State ex rel. S.L. v. Judge, Mun. Court, Hamilton Cty., NO. C-190248, 2020 WL 864914 (Ohio Ct. App. Feb. 21, 2020)

July 16, 2020

The victim in a domestic violence prosecution filed a petition for a writ of prohibition seeking an order restraining respondent, a former judge, from enforcing an order that would allow defendant and his counsel to access her residence for the asserted purpose of preparing his defense. A protective order gave the victim exclusive possession of the home. The court explained that under Ohio’s Constitution, a victim is entitled to be treated with fairness and respect for their privacy, and a victim has the right to refuse a discovery request. The victim also has the right to petition a court of appeals if the victim’s rights are implicated in a criminal proceeding. The court held that the judge erred in issuing the order because the victim was not a party to the criminal proceeding, and therefore the court did not have authority to authorize the inspection under Ohio’s rules of criminal procedure. The court noted that although the trial court has broad discretion in regulating discovery, this discretion does not extend to permit a trial court to force a nonparty to open her private residence to a criminal defendant. The court further noted that the Ohio Supreme Court has not held that a defendant has a constitutional right to access a nonparty’s home for purposes of preparing a defense. Because the court determined that the trial court lacked authority to enter the order, it did not decide whether the order at issue violated the victim’s constitutional rights under Marsy’s Law, or whether her right to privacy as a victim is paramount to a defendant’s right to due process and a fair trial. Further, the court found there was no adequate remedy at law if the writ did not issue; appealing from a contempt finding is not an adequate remedy. “A crime victim should not be required to disobey a court order and face a contempt charge with a risk of jail time in order to preserve her legal rights. Moreover, a victim is not a party to a criminal matter, and Marsy’s Law specifically authorizes a victim to petition a court of appeals when the victim’s requested relief is denied in an underlying criminal proceeding.” Accordingly, the court granted the writ.