Carter-Confrontation Decision

Ohio Supreme Court, Confrontation Clause Claims, and an Independent Ohio Constitution

The Ohio Supreme Court has decided a Confrontation Clause claim based on the Sixth Amendment to the U.S. Constitution in a case in which a concurring opinion explained the role of the court in addressing parallel claims under the Ohio Constitution. This is a decision that should be read by every litigator in the state, especially criminal defense lawyers.

In State v. Carter, ____ Ohio St.3d _____ , 2024-Ohio-1247, 2024 WL 1447893, ___ N.E.2d ___ (April 4, 2024), the court, without dissent, held that a trial court (in a prosecution of a defendant for having sexual relations with his adopted daughter) erred by allowing remote testimony and dispensing with the requirement of face-to-face confrontation as required by the Confrontation Clause of the Sixth Amendment. But the court found that the violation was harmless error,  because there was no reasonable possibility that the trial court’s error contributed to the conviction. The court noted that the defendant had relied on Art. I, sec. 10 of the Ohio Constitution, which contains confrontation clause language that differed from the federal guarantee by providing that a criminal defendant “shall be allowed . . . to meet the witnesses face to face[;]” Nonetheless, the court declined to “revisit . . . [its earlier] decision to interpret Article I, Section 10 in lockstep with the United States Supreme Court’s interpretation of the Sixth Amendment . . . [b]ecause neither party has argued for an independent reading of Article I, Section 10”). The opinion for the court was written by Justice Pat DeWine, and Justices Jennifer Brunner and Melody Stewart concurred in the judgment only. Docket (2023-0156)

Concurring Opinion

One member of the court, Justice Pat Fischer, agreeing with the decision of the majority in not reaching the state constitutional issue, concurred, stating that “[i]n an appropriate case, we should revisit our conclusions that the Ohio Constitution’s Confrontation Clause must be interpreted in lockstep with the Confrontation Clause of the Sixth Amendment to the United States Constitution”) (¶ 56).

Justice Fischer’s opinion, while focusing on the importance of the textual differences in the federal and state provisions, takes no position on the merits of the state claim. But he reviews the relevant law of “lockstepping,” and he encourages Ohio lawyers to raise state constitutional issues that appear foreclosed by earlier decisions that had followed analogous federal cases, noting that:

In the future, parties should not hesitate to raise and vigorously argue claims under the Ohio Constitution, especially if this court has not analyzed the relevant constitutional provision in light of its plain text, history, and tradition. {¶ 58}

He also urges the court to address such issues: “[T]his court should not shirk its responsibility as the final arbiter of Ohio law, including the Ohio Constitution.” {¶ 58}

The concurring opinion recognizes the plight of the defense attorney who did not aggressively pursue the state constitutional defense

While Carter’s failure to develop a detailed claim under the Confrontation Clause of Article I, Section 10 of the Ohio Constitution precludes our review of that issue, it is hard to lay the blame solely on his shoulders. This court’s recalcitrance to interpret Article I, Section 10 in accordance with its plain text and history likely gives litigants the impression that the thorough development of such a claim would be a fool’s errand. This court has seen time and again that its precedent and approach interpreting the Ohio Constitution in lockstep with the United States Constitution discourages some litigants from vigorously arguing claims under the Ohio Constitution. {¶ 58}

In his concurrence, Justice Fischer criticizes the “lockstep” approach as involving an “upward delegation” by the Ohio Supreme Court of its power to construe the Ohio Constitution.

This sort of upward delegation does a tremendous disservice to the Ohio Constitution. . . . Contrary to what our precedent indicates, “we are not bound to walk in lockstep with the federal courts when it comes to our interpretation of the Ohio Constitution.” . . . The United States Supreme Court has affirmed on numerous occasions the notion that a state’s constitution may provide greater constitutional protection than that required by the federal Constitution. . . . {¶ 62}

Indeed, this court’s reflexive adoption of the federal courts’ interpretation of the Confrontation Clause of the Sixth Amendment to the United States Constitution as the sole interpretation of the Confrontation Clause of Article I, Section 10 of the Ohio Constitution pays too little attention to the significant textual and historical differences between the United States and Ohio Constitutions. . . . These differences warrant closer scrutiny. {¶ 63}. . .

The Ohio Constitution is “a fundamental law,” . . . [and] [a]s judges, it is our province to ascertain its meaning.  . . .  Our interpretation of the Ohio Constitution must look to the text, history, and tradition of the provision at issue. . . . This court failed to conduct such an analysis in . . . [its earlier decisions]. As a result, this court failed to recognize that Ohio has “a different confrontation clause, written in a different time with a different backdrop, and invoking different language.” {¶ 64}

This court previously acknowledged the importance of the unique language contained in Ohio’s Confrontation Clause. . . . {¶ 65}

 Put simply, words have meaning. When otherwise analogous provisions of the Ohio Constitution and the federal Constitution differ in their text, this court should not mechanically read them as perfectly equivalent. We do the citizens of Ohio a disservice when we do so, especially when the language used in the provisions differs as greatly as it does in the confrontation provisions here.  {¶ 66}

Justices Donnelly and Deters joined Justice Fischer’s concurring opinion.

(Revised 4-14-2024)

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