State v. Whiting, 702 N.E.2d 1199 (Ohio 1998). · Go Syfert
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State v. Whiting, 702 N.E.2d 1199 (Ohio 1998). Cases Citing This Book View Copy Cite
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cited 2× by 1 distinct case · …with no evidence from the state explaining the delay, the defendant was entitled to a dismissal ✓
194 citation events (175 in the last 25 years) across 5 distinct courts.
Strongest positive: State v. Bourn (ohio, 2022-12-06)
Treatment trajectory · 1998 → 2026 · click a year to view as-of
1998 2012 2026
Top citers, strongest first. 27 distinct citers. How cited ↗
examined Cited as authority (quoted) State v. Bourn (3×) also: Cited as authority (rule)
Ohio · 2022 · quote attribution · 2 verbatim quotes · confidence low
with no evidence from the state explaining the delay, the defendant was entitled to a dismissal
discussed Cited as authority (rule) State v. Mercado
Ohio Ct. App. · 2026 · confidence medium
To analyze due-process claims based on preindictment-delay, the Ohio Supreme Court has firmly established the following burden-shifting framework: “Once a defendant presents evidence of actual prejudice, the burden shifts to the state to produce evidence of a justifiable reason for the delay.” State v. Jones, 2016-Ohio-5105, ¶ 13, citing State v. Whiting, 84 Ohio St.3d 215, 217 (1998), and State v. Adams, 2015-Ohio-3954, ¶ 99.
discussed Cited as authority (rule) State v. Dunlap
Ohio Ct. App. · 2026 · confidence medium
Then, after the defendant has established actual prejudice, the [S]tate must produce evidence of a justifiable reason for the delay.” (Internal citations omitted.) State v. Whiting, 84 Ohio St.3d 215, 217 (1998).
discussed Cited as authority (rule) State v. Dominguez-Olivia
Ohio Ct. App. · 2026 · confidence medium
Id. at ¶ 13, citing State v. Whiting, 84 Ohio St.3d 215, 217 (1998). {¶ 18} Determining “‘actual prejudice’ involves ‘a delicate judgment based on the circumstances of each case.’” State v. Walls, 2002-Ohio-5059, ¶ 52 , quoting United States v. Marion, 404 U.S. 307, 325 (1971).
cited Cited as authority (rule) State v. Smith
Ohio Ct. App. · 2025 · confidence medium
State v. Whiting, 84 Ohio St.3d 215, 217 (1998).
cited Cited as authority (rule) State v. Morris
Ohio Ct. App. · 2025 · confidence medium
State v. Whiting, 84 Ohio St.3d 215, 217 (1998).
discussed Cited as authority (rule) State v. Toney
Ohio Ct. App. · 2025 · confidence medium
State v. Whiting, 84 Ohio St.3d 215, 217 (1998) and Hines at ¶ 15 . [D]elay in the commencement of prosecution can be found to be unjustifiable when the state's reason for the delay is to intentionally gain a tactical advantage over the defendant, . . . or when the state, through negligence or error in judgment, effectively ceases the active investigation of a case, but later decides to commence prosecution upon the same evidence that was available to it at the time that its active investigation was ceased.
cited Cited as authority (rule) State v. Smiley
Ohio Ct. App. · 2025 · confidence medium
Id., citing State v. Whiting, 84 Ohio St.3d 215, 217 (1998), and State v. Adams, 2015-Ohio-3954 , ¶ 99.
discussed Cited as authority (rule) State v. Wardlaw
Ohio Ct. App. · 2025 · confidence medium
Under this framework, “[o]nce a defendant presents evidence of actual prejudice, the burden shifts to the state to produce evidence of a justifiable reason for the delay.” Id., citing State v. Whiting, 84 Ohio St.3d 215, 217 (1998); State v. Adams, 2015-Ohio-3954 , ¶ 99.
cited Cited as authority (rule) State v. Yoder
Ohio Ct. App. · 2025 · confidence medium
Upon such a showing, “‘the burden shifts to the state to produce evidence of a justifiable reason for the delay.’” Id., quoting Jones at ¶ 13, citing State v. Whiting, 84 Ohio St.3d 215, 217 (1998).
discussed Cited as authority (rule) State v. Hahaj
Ohio Ct. App. · 2025 · confidence medium
But once the defendant has shown prejudice, “the burden shifts to the state to produce evidence of a justifiable reason for the delay.” Id. at ¶ 13, citing State v. Whiting, 84 Ohio St.3d 215, 217 (1998). {¶21} Determining whether a defendant has experienced “actual prejudice” from a delay “involves a delicate judgment and a case-by-case consideration of the particular circumstances.” (Cleaned up.) Jones, 2016-Ohio-5105, at ¶ 20 .
discussed Cited as authority (rule) State v. Pinney
Ohio Ct. App. · 2021 · confidence medium
“Once a defendant presents evidence of actual prejudice, the burden shifts to the state to produce evidence of a justifiable reason for delay.” Jones, supra, at ¶13 , citing State v. Whiting, 84 Ohio St.3d 215, 217 (1998).
cited Cited as authority (rule) State v. Bortree
Ohio Ct. App. · 2021 · confidence medium
Adams at ¶ 99 , citing State v. Whiting, 84 Ohio St.3d 215, 217 (1998).
discussed Cited as authority (rule) State v. Porter
Ohio Ct. App. · 2021 · confidence medium
Once a defendant presents evidence of actual prejudice, the burden shifts to the state to produce evidence of a justifiable reason for the delay.” Id. at ¶ 13, citing State v. Whiting, 84 Ohio St.3d 215, 217 (1998) and State v. Adams, 144 Ohio St.3d 429 , 2015-Ohio-3954 , ¶ 99. {¶10} Preindictment delay violates due process only when it is unjustifiable and causes actual prejudice.
cited Cited as authority (rule) State v. Williams
Ohio Ct. App. · 2014 · confidence medium
No. 04AP-333, 2005-Ohio-2205, ¶ 14 , citing State v. Whiting, 84 Ohio St.3d 215, 217 (1998), citing Luck and United States v. Lovasco, 431 U.S. 783 (1977).
discussed Cited as authority (rule) State v. New
Ohio Ct. App. · 2013 · confidence medium
“An unjustifiable delay between the commission of an offense and a defendant’s indictment therefor, which results in 6 actual prejudice to the defendant, is a violation of the right to due process of law * * *.” State v. Luck, 15 Ohio St. 3d 150 (1984), paragraph two of the syllabus. {¶16} Luck, which was reaffirmed by State v. Whiting, 84 Ohio St.3d 215, 217 (1998), sets forth a two-prong test to determine whether an indictment should be dismissed due to pre- indictment delay.
cited Cited as authority (rule) State v. Phillips, Unpublished Decision (8-11-2000)
Ohio Ct. App. · 2000 · confidence medium
Whiting, supra at 217.
cited Cited "see" State v. Neeley
Ohio Ct. App. · 2001 · signal: see · confidence high
See State v. Whiting (1998), 84 Ohio St.3d 215, 217 , 702 N.E.2d 1199 , 1201. 33 .
cited Cited "see" State v. Lewis, Unpublished Decision (3-27-2001)
Ohio Ct. App. · 2001 · signal: see · confidence high
See State v. Whiting (1998), 84 Ohio St.3d 215 , 702 N.E.2d 1199 (confirming the analysis utilized in Luck to continue to be controlling authority in Ohio courts).
cited Cited "see" State v. Walls, Unpublished Decision (12-11-2000)
Ohio Ct. App. · 2000 · signal: see · confidence high
See Whiting , 84 Ohio St.3d at 217 .
discussed Cited "see, e.g." Hawkins v. Warden, Chillicothe Correctional Institution (2×)
S.D. Ohio · 2019 · signal: see, e.g. · confidence low
See, e.g., Jones at ¶ 13, citing State v. Whiting, 84 Ohio St. 3d 215, 217 , 1998-Ohio-575 , 702 N.E.2d 1199 (1998), and State v. Adams, 144 Ohio St. 3d 429 , 2015-Ohio-3954 , 45 N.E.3d 127, ¶ 99 . [*P49] Accordingly, the trial court did not err when it concluded that Hawkins failed to establish actual prejudice.
discussed Cited "see, e.g." State v. Hawkins
Ohio Ct. App. · 2018 · signal: see, e.g. · confidence low
See, e.g., Jones at ¶ 13, citing State v. Whiting, 84 Ohio St.3d 215, 217 , 702 N.E.2d 1199 (1998), and State v. Adams, 144 Ohio St.3d 429 , 2015- Ohio- 3954, 45 N.E.3d 127, ¶ 99 . {¶ 49} Accordingly, the trial court did not err when it concluded that Hawkins failed to establish actual prejudice.
discussed Cited "see, e.g." State v. Shoopman
Ohio Ct. App. · 2017 · signal: see also · confidence low
See also State v. Whiting, 84 Ohio St.3d 215 , 702 N.E.2d 1199 (1998). {¶ 9} Actual prejudice exists “when missing evidence or unavailable testimony, identified by the defendant and relevant to the defense, would minimize or eliminate the impact of the state’s evidence and bolster the defense.” State v. Jones, 148 Ohio St.3d 167 , 2016-Ohio-5105 , 69 N.E.3d 688, ¶ 28 ; Luck at 157-158 .
discussed Cited "see, e.g." State v. Geoffrey King
Vt. · 2016 · signal: see also · confidence low
For example, in State v. Philibotte , New Hampshire requires a defendant to show initially that "actual prejudice has resulted from a delay" and, after that showing is made, "the trial court must then balance the resulting prejudice against the reasonableness of the delay." 123 N.H. 240 , 459 A.2d 275 , 277 (1983) (citations omitted); see also State v. Whiting , 84 Ohio St.3d 215 , 702 N.E.2d 1199 , 1201 (1998).
cited Cited "see, e.g." State v. Zimbeck
Ohio Ct. App. · 2011 · signal: see also · confidence low
See also State v. Whiting (1998), 84 Ohio St.3d 215 , 702 N.E.2d 1199 .
cited Cited "see, e.g." State v. Sosnoskie, 22713 (5-15-2009)
Ohio Ct. App. · 2009 · signal: see also · confidence low
See, also, State v. Whiting (1998), 84 Ohio St.3d 215 .
cited Cited "see, e.g." State v. Bruce, Unpublished Decision (4-3-2003)
Ohio Ct. App. · 2003 · signal: see also · confidence low
See, also , State v. Whitting (1998), 84 Ohio St.3d 215 , 702 N.E.2d 1199 .
Retrieving the full opinion text from the archive…
The State of Ohio, Appellee,
v.
Whiting, Appellant
1997-2162.
Ohio Supreme Court.
Dec 30, 1998.
✓ 702 N.E.2d 1199
James D. Bennett, Miami County First Assistant Prosecuting Attorney, for appellee., Sirkin, Piñales, Mezibov & Schwartz, Martin S. Piñales and John Feldmeier, for appellant.
Cook, Moyer, Douglas, Resnick, Sweeney, Pfeifer, Stratton.
Cited by 138 opinions  |  Published
1 passages pin-cited by 1 case
Pinpoint authority: bottom 61%
Citer courts: Ohio Supreme Court (2)
Cook, J.

We confirm today our earlier pronouncement in State v. Luck (1984), 15 Ohio St.3d 150, 15 OBR 296, 472 N.E.2d 1097, that where a defendant moves to dismiss an indictment and presents evidence establishing substantial prejudice resulting from preindictment delay, the state bears the burden of producing evidence of a justifiable reason for the delay. According to the Luck burden-shifting analysis, the trial court here erred when it denied defendant’s motion to dismiss. Because the evidence presented at the hearing on the motion entitled the defendant to a dismissal of the indictment, the later proceedings in this case do not support a reversal and remand to allow the state another opportunity to submit evidence to the court of a justifiable reason for the fourteen-year delay.

In Luck, this court used the test set forth in United States v. Marion (1971), 404 U.S. 307, 92 S.Ct. 455, 30 L.Ed.2d 468, and United States v. Lovasco (1977), 431 U.S. 783, 97 S.Ct. 2044, 52 L.Ed.2d 752, to determine when an indictment should be dismissed due to an unreasonable preindictment delay. Luck, 15 Ohio St.3d at 153-154, 157-158, 15 OBR at 299, 302-303, 472 N.E.2d at 1102, 1104-1105. The Lovasco court burdened the defendant with establishing actual prejudice from the delay and charged the government with the burden of producing evidence of a justifiable reason for the delay. Accordingly, Luck requires first that the defendant produce evidence demonstrating that the delay has caused actual prejudice to his defense. Luck, 15 Ohio St.3d at 157-158, 15 OBR at 302-303, 472 N.E.2d at 1104-1105. Then, after the defendant has established actual prejudice, the state must produce evidence of a justifiable reason for the delay. Id. at 158, 15 OBR at 303, 472 N.E.2d at 1105. “[T]he prejudice suffered by the defendant must be viewed in light of the state’s reason for the delay.” Id. at 154,15 OBR at 299, 472 N.E.2d at 1102, citing Lovasco, 431 U.S. at 789-790, 97 S.Ct. at 2048-2049, 52 L.Ed.2d at 758-759. This court has not disturbed the test utilized in Luck, and it is well-settled law in Ohio courts. [1]

[*218] Despite the teachings of Luck, the state did not present any evidence at the hearing of a justifiable reason for its delay in indicting Whiting. In its posthearing memorandum, the state argued, against established law, that Whiting had the burden to explain the delay. It was at that point that the trial court should have dismissed the indictment because it found, in accordance with Luck, that Whiting had demonstrated actual substantial prejudice. With that finding and with no evidence from the state explaining the delay, the defendant was entitled to a dismissal. Because the court eventually properly dismissed the indictment, albeit after a mistrial, that dismissal should be affirmed.

The state persuaded the court of appeals, however, that the initial erroneous ruling by the trial court regarding the burden of going forward misled the state in the succeeding proceedings and that the trial court’s judgment therefore should be reversed and the case remanded for a new hearing. But since the state’s misstep on the production of evidence occurred before the trial court expressed its view that the state had no burden of going forward, the state may not claim to have been misled by the court’s erroneous ruling. The state rested at the hearing without offering the evidence required by Luck to counterbalance defendant’s showing of prejudice resulting from the delay.

Accordingly, we reverse the judgment of the court of appeals and reinstate the trial court’s dismissal of Whiting’s indictment.

Judgment reversed.

Moyer, C.J., Douglas, Resnick, F.E. Sweeney, Pfeifer and Lundberg Stratton, JJ., concur.
1

. See, e.g., State v. Ellis (May 30, 1997), Montgomery App. No. 15963, unreported, 1997 WL 282313; State v. Davis (Apr. 15, 1997), Richland App. No. 96-CA-78, unreported, 1997 WL 219180; State v. Glazer (1996), 111 Ohio App.3d 769, 677 N.E.2d 368; State v. Doksa (1996), 113 Ohio App.3d 277, 680 N.E.2d 1043; State v. Stickney (Dec. 7, 1994), Montgomery App. No. CA 14232, unreported, 1994 WL 680159; State v. Burrell (Apr. 28, 1989), Portage App. No. 1948, unreported, 1989 WL 42980; State v. Smith (Feb. 19, 1985), Franklin App. No. 84AP-785, unreported, 1985 WL 9873.