EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Tuesday, December 29, 2015

The Refusal to Indict in the Tamir Rice Case & the Self-Defense Standard in Ohio

Yesterday, an Ohio grand jury decided not to indict the officers involved in the death of Tamir Rice: Timothy Loehmann, the officer-in-training who shot him, and Frank Garmback, who was training him. The charges against Loehmann were murder, involuntary manslaughter, reckless homicide, negligent homicide and dereliction of duty. These latter two charges contained negligent mens reas. Negligent homicide is a first-degree misdemeanor, and, according to the Ohio Code,

(D) A person acts negligently when, because of a substantial lapse from due care, he fails to perceive or avoid a risk that his conduct may cause a certain result or may be of a certain nature. A person is negligent with respect to circumstances when, because of a substantial lapse from due care, he fails to perceive or avoid a risk that such circumstances may exist.

Like other jurisdictions, the burden of proof before the grand jury is the low "probable cause" standard, which is why it is "incredibly rare" for grand jurors not to indict defendants.

What makes the decision not to indict especially odd in this case is Ohio's aberrational self-defense standard. In 49 states,* the prosecution must disprove a defendant's claim of self-defense beyond a reasonable doubt. In other words, a juror could think that it is highly unlikely that the defendant was acting is self-defense and still return a "not guilty" verdict as long as the juror had reasonable doubt about whether the defendant was acting in self-defense.

By way of contrast, in Ohio, the defendant affirmatively has to prove by a preponderance of the evidence (more likely than not) that he was acting in self-defense in order to receive an acquittal. Section 2901.05(A) of the Ohio Code reads as follows:

2901.05 Burden of proof - reasonable doubt - self-defense.

(A) Every person accused of an offense is presumed innocent until proven guilty beyond a reasonable doubt, and the burden of proof for all elements of the offense is upon the prosecution. The burden of going forward with the evidence of an affirmative defense, and the burden of proof, by a preponderance of the evidence, for an affirmative defense, is upon the accused.

Therefore, for the grand jurors to refuse to return an indictment in the Tamir Rice case, they must have found that there wasn't probable cause to believe (1) that Loehmann was acting negligently; and/or (2) that Loehmann would be unable to prove by a preponderance of the evidence that he was acting in self-defense.


*I might need to fact check that number, but it's safe to say that the vast majority of states apply this standard.



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Colin, I read a statement from the family's attorneys that the prosecutors allowed the officers to read pre-prepared statements and didn't directly question them on the stand during the GJ testimony. Any idea if this is true? If so, is this allowed and/or normal in OH? It feels like the Prosecutor wasn't try to get an indictment here.

Posted by: Jessica | Dec 29, 2015 10:25:07 AM

reading about the investigation it would seem that the police dragged their feet and did little if any interviewing of the officers involved. It seems to me that a video with no audio could be twisted to favor them and the investigation turned over to the district attorneys could be extremely thin. I think things need to change. First, unseal grand jury proceedings. How do you find prosecutorial misconduct without it? Second, every state should have laws that prohibit a police department from investigating itself. Define standards for police investigation and either create a department for that or ask neighboring jurisdictions to assist. It just seems to me that the deck is stacked against any victim.

Posted by: Robert Kirkpatrick | Dec 30, 2015 3:19:29 PM

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