self-incrimination clause in Ohio

1984Appellant further argues that the prosecutor’s statements constituted a violation of the rule established by Griffin v. California (1965), 380 U.S. 609 , and adopted by this court in State v. Lynn (1966), 5 Ohio St. 2d 106 , paragraph one of the syllabus: “Comment by the trial court or by the prosecutor upon the failure of an accused to testify in a criminal proceeding against him violates the self-incrimination clause of the Fifth Amendment made applicable to the states by the Fourteenth Amendment.” The cases cited by appellant in support of his claim are inapposite.

1970In Griffin v. California (1965), 380 U. S. 609 , the Supreme Court of the United States held that comment to the jury by a prosecutor in a state criminal trial, upon defendant’s failure to testify, violates the self-incrimination clause of the Fifth Amendment of the United States Constitution.

2009(Schmerber v. California [1966], 384 U.S. 757 [ 86 S.Ct. 1826 , 16 L.Ed.2d 908 ]; Westerville v. Cunningham [1968], 15 Ohio St.2d 121 [ 44 O.O.2d 119 , 239 N.E.2d 40 ], applied.)” {¶ 19} The United States Supreme Court has held that if an officer has probable cause to arrest a driver for DUI, the result of an analysis of a blood sample taken over the driver’s objection and without consent is admissible in evidence, even if no warrant had been obtained.

2009(Schmerber v. California [1966], 384 U.S. 757 [ 86 S.Ct. 1826 , 16 L.Ed.2d 908 ]; Westerville v. Cunningham [1968], 15 Ohio St.2d 121 [ 44 O.O.2d 119 , 239 N.E.2d 40 ], applied.)” {¶ 19} The United States Supreme Court has held that if an officer has probable cause to arrest a driver for DUI, the result of an analysis of a blood sample taken over the driver’s objection and without consent is admissible in evidence, even if no warrant had been obtained.

2009(Schmerber v. California [1966], 384 U.S. 757 [ 86 S.Ct. 1826 , 16 L.Ed.2d 908 ]; Westerville v. Cunningham [1968], 15 Ohio St.2d 121 [ 44 O.O.2d 119 , 239 N.E.2d 40 ], applied.)” {¶ 19} The United States Supreme Court has held that if an officer has probable cause to arrest a driver for DUI, the result of an analysis of a blood sample taken over the driver’s objection and without consent is admissible in evidence, even if no warrant had been obtained.

2009(Schmerber v. California [1966], 384 U.S. 757 [ 86 S.Ct. 1826 , 16 L.Ed.2d 908 ]; Westerville v. Cunningham [1968], 15 Ohio St.2d 121 [ 44 O.O.2d 119 , 239 N.E.2d 40 ], applied.)” {¶ 19} The United States Supreme Court has held that if an officer has probable cause to arrest a driver for DUI, the result of an analysis of a blood sample taken over the driver’s objection and without consent is admissible in evidence, even if no warrant had been obtained.

2025Thus, “a guilty plea does not waive the self-incrimination privilege at sentencing,” Mitchell at 314 , and “[a] sentencing court may not draw an adverse inference from a defendant’s silence in determining facts relating to the circumstances and details of the crime,” id. at 315 .

2024C. 2929.12(D)(5).” Id. ¶ 83. {¶37} The Court concluded that to consider the defendant’s silence as a lack of remorse would create a negative inference regarding the factual determinations in the Muskingum County, Case No. CT2023-0054 10 case – an inference forbidden under Mitchell v. United States, 526 U.S. 314, 328-330 , 119 S.Ct. 1307 , 143 L.Ed.2d 424 (1999). {¶38} But the Brunson Court held that despite this error by the trial court, the defendant was not entitled to a new sentencing hearing, noting that lack of remorse is only one of five factors a trial court considers when evaluating th

2021While direct comment on an accused’s failure to testify does violate the Fifth Amendment’s self-incrimination clause, “[a] reference by the prosecutor in closing argument to uncontradicted evidence is not a comment on the accused’s failure to testify, where the comment is directed to the strength of the state’s evidence and not to the silence of the accused, and the jury is instructed not to consider the accused’s failure to testify for any purpose.” State v. Ferguson, 5 Ohio St.3d 160 , 450 N.E.2d 265 (1983), paragraph one of the syllabus.

2021While direct comment on an accused’s failure to testify does violate the Fifth Amendment’s self-incrimination clause, “[a] reference by the prosecutor in closing argument to uncontradicted evidence is not a comment on the accused’s failure to testify, where the comment is directed to the strength of the state’s evidence and not to the silence of the accused, and the jury is instructed not to consider the accused’s failure to testify for any purpose.” State v. Ferguson, 5 Ohio St.3d 160 , 450 N.E.2d 265 (1983), paragraph one of the syllabus.

2011The warnings required to be given to a suspect under Miranda v. Arizona (1966), 384 U.S. 436 , 86 S.Ct. 1602 , 16 L.Ed.2d 694 , are designed to protect against violations of the Fifth Amendment's self-incrimination clause.

2011The warnings required to be given to a suspect under Miranda v. Arizona (1966), 384 U.S. 436 , 86 S.Ct. 1602 , 16 L.Ed.2d 694 , are designed to protect against violations of the Fifth Amendment's self-incrimination clause.

1987Malloy v. Hogan (1964), 378 U.S. 1 .

1968By re-examining and rejecting prior decisions and finding such rights “implicit in the concept of ordered liberty” and necessary “to maintain a fair and enlightened system of justice,” Palko v. Connecticut (1937), 302 U. S. 319, 325 , the court majority has specifically incorporated into the Fourteenth Amendment the exclusionary rule of the Fourth Amendment, Mapp v. Ohio (1961), 367 U. S. 643 , the self-incrimination clause of the Fifth Amendment, Malloy v. Hogan (1964), 378 U. S. 1 , the Sixth Amendment rights of effective assistance of counsel, Gideon v. Wainwright (1963), 372 U. S. 335 , co

1985Similarly, paragraph one of the syllabus in State v. Lynn (1966), 5 Ohio St. 2d 106 [ 34 O.O.2d 226 ], provides: “Comment by the trial court or by the prosecutor upon the failure of an accused to testify in a criminal proceeding against him violates the self-incrimination clause of the Fifth Amendment made applicable to the states by the Fourteenth Amendment.

1985Similarly, paragraph one of the syllabus in State v. Lynn (1966), 5 Ohio St. 2d 106 [ 34 O.O.2d 226 ], provides: “Comment by the trial court or by the prosecutor upon the failure of an accused to testify in a criminal proceeding against him violates the self-incrimination clause of the Fifth Amendment made applicable to the states by the Fourteenth Amendment.

2025PAGE 7 OF 11 Case No. 2025-G-0020 {¶18} Conacher’s reliance on Roberts v. United States, 445 U.S. 552 (1980) in support of her argument on appeal is misplaced.

2025“However, ‘[a] reference by the prosecutor in closing argument to uncontradicted evidence is not a comment on the accused’s failure to testify, where the comment is directed to the strength of the state’s evidence and not -16- Case No. 14-25-02 to the silence of the accused, and the jury is instructed not to consider the accused’s failure to testify for any purpose.’” Id., quoting State v. Ferguson, 5 Ohio St.3d 160 (1983), paragraph one of the syllabus. {¶38} In support of his argument that the prosecutor improperly commented on his decision not to testify in his defense, Shipley directs us t

2024Id. ¶ 71. {¶33} The Eighth District found no error holding that the trial court may permissibly consider “lack of allocution at sentencing” for the purpose of assessing an offender’s remorse and a proper consideration under the sentencing factors of R.C. 2929.12(D)(5), Id. ¶ 75. {¶34} The Ohio Supreme Court accepted three propositions of law for review, including whether the self-incrimination clause [United States Constitution] forbids a sentencing court from considering defendant’s silence at the sentencing hearing as lack of remorse. {¶35} Put another way: “Whether a trial court violates a

2019"But when the state compels testimony by threatening potent sanctions unless the witness surrenders the constitutional privilege, the state obtains the testimony in violation of the Fifth Amendment, and it may not use that testimony against the witness in a subsequent criminal prosecution." Id. , citing Cunningham , 431 U.S. at 805 , 97 S.Ct. 2132 and State v. Jackson , 125 Ohio St.3d 218 , 2010-Ohio-621 , 927 N.E.2d 574 , ¶ 14 (plurality opinion) (noting that the State may not directly or derivatively use statements that are compelled under threat of termination).

2019"But when the state compels testimony by threatening potent sanctions unless the witness surrenders the constitutional privilege, the state obtains the testimony in violation of the Fifth Amendment, and it may not use that testimony against the witness in a subsequent criminal prosecution." Id. , citing Cunningham , 431 U.S. at 805 , 97 S.Ct. 2132 and State v. Jackson , 125 Ohio St.3d 218 , 2010-Ohio-621 , 927 N.E.2d 574 , ¶ 14 (plurality opinion) (noting that the State may not directly or derivatively use statements that are compelled under threat of termination).

2019See, e.g. , Oregon v. Elstad , 470 U.S. 298 , 304, 105 S.Ct. 1285 , 84 L.Ed.2d 222 (1985) ("Prior to Miranda , the admissibility of an accused's in-custody statements was judged solely by whether they were 'voluntary' within the meaning of the Due Process Clause."); State v. Jenkins , 15 Ohio St.3d 164 , 231, 473 N.E.2d 264 (1984) (noting that "due process provisions of the federal Constitution dictate that the state must *366 meet by a preponderance of the evidence its burden of proving that any inculpatory statement was made voluntarily"); State v. Tussing , 3d Dist.

2019See, e.g. , Oregon v. Elstad , 470 U.S. 298 , 304, 105 S.Ct. 1285 , 84 L.Ed.2d 222 (1985) ("Prior to Miranda , the admissibility of an accused's in-custody statements was judged solely by whether they were 'voluntary' within the meaning of the Due Process Clause."); State v. Jenkins , 15 Ohio St.3d 164 , 231, 473 N.E.2d 264 (1984) (noting that "due process provisions of the federal Constitution dictate that the state must *366 meet by a preponderance of the evidence its burden of proving that any inculpatory statement was made voluntarily"); State v. Tussing , 3d Dist.

2019Sheriff , 52 Ohio St.3d 40 , 44, 555 N.E.2d 940 (1990) (stating that a grant of immunity preserves the self-incrimination privilege because no statement made in that context is incriminatory).

2019Sheriff , 52 Ohio St.3d 40 , 44, 555 N.E.2d 940 (1990) (stating that a grant of immunity preserves the self-incrimination privilege because no statement made in that context is incriminatory).

2019"But when the state compels testimony by threatening potent sanctions unless the witness surrenders the constitutional privilege, the state obtains the testimony in violation of the Fifth Amendment, and it may not use that testimony against the witness in a subsequent criminal prosecution." Id. , citing Cunningham , 431 U.S. at 805 , 97 S.Ct. 2132 and State v. Jackson , 125 Ohio St.3d 218 , 2010-Ohio-621 , 927 N.E.2d 574 , ¶ 14 (plurality opinion) (noting that the State may not directly or derivatively use statements that are compelled under threat of termination).

2019"But when the state compels testimony by threatening potent sanctions unless the witness surrenders the constitutional privilege, the state obtains the testimony in violation of the Fifth Amendment, and it may not use that testimony against the witness in a subsequent criminal prosecution." Id. , citing Cunningham , 431 U.S. at 805 , 97 S.Ct. 2132 and State v. Jackson , 125 Ohio St.3d 218 , 2010-Ohio-621 , 927 N.E.2d 574 , ¶ 14 (plurality opinion) (noting that the State may not directly or derivatively use statements that are compelled under threat of termination).

2017In short, “in the ordinary case, if a witness under compulsion to testify makes disclosures instead of claiming the privilege, the government has not ‘compelled’ him to incriminate himself.” Minnesota v. Murphy, at 427, 104 S.Ct. at 1142 , quoting Garner v. United States at 654, 96 S.Ct. at 1182 . {¶ 38} This being said, there are certain situations where the self-incrimination privilege is triggered in the absence of its invocation.

2017In short, "in the ordinary case, if a witness under compulsion to testify makes disclosures instead of claiming the privilege, the government has not 'compelled' him to incriminate himself." Minnesota v. Murphy , at 427, 104 S.Ct. at 1142 , quoting Garner v. United States at 654, 96 S.Ct. at 1182 . {¶ 38} This being said, there are certain situations where the self-incrimination privilege is triggered in the absence of its invocation.

2017These situations occur when a person is deprived of a "free choice to admit, to deny, or to refuse to answer." Garner v. U.S. , at 657, 96 S.Ct. 1178 , quoting Lisenba v. California , 314 U.S. 219 , 241, 62 S.Ct. 280 , 86 L.Ed. 166 (1941).

2017These situations occur when a person is deprived of a "free choice to admit, to deny, or to refuse to answer." Garner v. U.S. , at 657, 96 S.Ct. 1178 , quoting Lisenba v. California , 314 U.S. 219 , 241, 62 S.Ct. 280 , 86 L.Ed. 166 (1941).

2017Turley, 414 U.S. at 81 , 94 S.Ct. 316 , 38 L.Ed.2d 274 . {¶ 21} In analyzing the issues, the United States Supreme Court stressed the necessity of reconciling established policies behind the self-incrimination privilege and the governmental need “to obtain information ‘to assure the effective functioning of government’ * * *.” (Citations omitted.) Id.

2017Turley, 414 U.S. at 81 , 94 S.Ct. 316 , 38 L.Ed.2d 274 . {¶ 21} In analyzing the issues, the United States Supreme Court stressed the necessity of reconciling established policies behind the self-incrimination privilege and the governmental need “to obtain information ‘to assure the effective functioning of government’ * * *.” (Citations omitted.) Id.

2011Under federal law, “the Miranda rule * * * does not apply to nontestimonial physical evidence.” State v. Farris, 109 Ohio St.3d 519 , 849 N.E.2d 985 , 2006-Ohio-3255 , at ¶ 37, citing United States v. Patane (2004), [ 542 U.S. 630 , 124 S.Ct. 2620 , 159 L.Ed.2d 667 ]; State v. Henderson (1990), 51 Ohio St.3d 54, 57 , 554 N.E.2d 104 (“the nonverbal results of appellee's breathalyzer and field sobriety tests are not self-incriminating statements”).

2011Under federal law, “the Miranda rule * * * does not apply to nontestimonial physical evidence.” State v. Farris, 109 Ohio St.3d 519 , 849 N.E.2d 985 , 2006-Ohio-3255 , at ¶ 37, citing United States v. Patane (2004), [ 542 U.S. 630 , 124 S.Ct. 2620 , 159 L.Ed.2d 667 ]; State v. Henderson (1990), 51 Ohio St.3d 54, 57 , 554 N.E.2d 104 (“the nonverbal results of appellee's breathalyzer and field sobriety tests are not self-incriminating statements”).

2011Under federal law, “the Miranda rule * * * does not apply to nontestimonial physical evidence.” State v. Farris, 109 Ohio St.3d 519 , 849 N.E.2d 985 , 2006-Ohio-3255 , at ¶ 37, citing United States v. Patane (2004), [ 542 U.S. 630 , 124 S.Ct. 2620 , 159 L.Ed.2d 667 ]; State v. Henderson (1990), 51 Ohio St.3d 54, 57 , 554 N.E.2d 104 (“the nonverbal results of appellee's breathalyzer and field sobriety tests are not self-incriminating statements”).

2011Under federal law, “the Miranda rule * * * does not apply to nontestimonial physical evidence.” State v. Farris, 109 Ohio St.3d 519 , 849 N.E.2d 985 , 2006-Ohio-3255 , at ¶ 37, citing United States v. Patane (2004), [ 542 U.S. 630 , 124 S.Ct. 2620 , 159 L.Ed.2d 667 ]; State v. Henderson (1990), 51 Ohio St.3d 54, 57 , 554 N.E.2d 104 (“the nonverbal results of appellee's breathalyzer and field sobriety tests are not self-incriminating statements”).

2011Under federal law, “the Miranda rule * * * does not apply to nontestimonial physical evidence.” State v. Farris, 109 Ohio St.3d 519 , 849 N.E.2d 985 , 2006-Ohio-3255 , at ¶ 37, citing United States v. Patane (2004), [ 542 U.S. 630 , 124 S.Ct. 2620 , 159 L.Ed.2d 667 ]; State v. Henderson (1990), 51 Ohio St.3d 54, 57 , 554 N.E.2d 104 (“the nonverbal results of appellee's breathalyzer and field sobriety tests are not self-incriminating statements”).

2009Under the current version of R.C. 4511.191(B), which was not in effect at the time of Hoover’s arrest, there is also a difference in degree of penalty for persons, like Hoover, who have had a DUI conviction within six years of the current offense—they face a two-year license suspension for failure to submit to testing, regardless of whether they had previously refused a test. {¶ 17} In State v. Starnes (1970), 21 Ohio St.2d 38 , 50 O.O.2d 84 , 254 N.E.2d 675 , paragraph one of the syllabus, this court found the implied-consent statute to be constitutional: {¶ 18} “Section 4511.191, Revised Cod

2009Under the current version of R.C. 4511.191(B), which was not in effect at the time of Hoover’s arrest, there is also a difference in degree of penalty for persons, like Hoover, who have had a DUI conviction within six years of the current offense—they face a two-year license suspension for failure to submit to testing, regardless of whether they had previously refused a test. {¶ 17} In State v. Starnes (1970), 21 Ohio St.2d 38 , 50 O.O.2d 84 , 254 N.E.2d 675 , paragraph one of the syllabus, this court found the implied-consent statute to be constitutional: {¶ 18} “Section 4511.191, Revised Cod

1970Due process arguments were raised against the procedure of taking a blood test to prove an accused guilty of intoxication in Schmerber v. California, supra ( 384 U. S. 757 ), and dismissed on the authority of Breithaupt v. Abram (1956), 352 U. S. 432 .

1970Thereafter in Miranda v. Arizona (1966), 384 U. S. 436 , that court held, in paragraph 1 (b) of the syllabus: “The privilege against self-incrimination, which has had a long and expansive historical development, is the essential mainstay of our adversary system and guarantees to the individual the right to remain silent unless he chooses to speak in the unfettered exercise of his own will, during a period of custodial interrogation as well as in the courts or during the course of other official investigations.” (Emphasis added.) This court held, in State v. Minamyer (1967), 12 Ohio St. 2d 67 ,

1968By re-examining and rejecting prior decisions and finding such rights “implicit in the concept of ordered liberty” and necessary “to maintain a fair and enlightened system of justice,” Palko v. Connecticut (1937), 302 U. S. 319, 325 , the court majority has specifically incorporated into the Fourteenth Amendment the exclusionary rule of the Fourth Amendment, Mapp v. Ohio (1961), 367 U. S. 643 , the self-incrimination clause of the Fifth Amendment, Malloy v. Hogan (1964), 378 U. S. 1 , the Sixth Amendment rights of effective assistance of counsel, Gideon v. Wainwright (1963), 372 U. S. 335 , co

1968By re-examining and rejecting prior decisions and finding such rights “implicit in the concept of ordered liberty” and necessary “to maintain a fair and enlightened system of justice,” Palko v. Connecticut (1937), 302 U. S. 319, 325 , the court majority has specifically incorporated into the Fourteenth Amendment the exclusionary rule of the Fourth Amendment, Mapp v. Ohio (1961), 367 U. S. 643 , the self-incrimination clause of the Fifth Amendment, Malloy v. Hogan (1964), 378 U. S. 1 , the Sixth Amendment rights of effective assistance of counsel, Gideon v. Wainwright (1963), 372 U. S. 335 , co

1968By re-examining and rejecting prior decisions and finding such rights “implicit in the concept of ordered liberty” and necessary “to maintain a fair and enlightened system of justice,” Palko v. Connecticut (1937), 302 U. S. 319, 325 , the court majority has specifically incorporated into the Fourteenth Amendment the exclusionary rule of the Fourth Amendment, Mapp v. Ohio (1961), 367 U. S. 643 , the self-incrimination clause of the Fifth Amendment, Malloy v. Hogan (1964), 378 U. S. 1 , the Sixth Amendment rights of effective assistance of counsel, Gideon v. Wainwright (1963), 372 U. S. 335 , co