EvidenceProf Blog

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

Wednesday, July 27, 2022

Supreme Court of Ohio Finds Use of Marsy's Law to Have Victim Sit at Prosecution Table Violated the Presumption of Innocence

Over the past few years, states have begun enacting Marsy's Law, which "seeks to give crime victims meaningful and enforceable constitutional rights equal to the rights of the accused." Many legal scholars, including myself, have questioned Marsy's Law, arguing that courts could easily apply several of its provisions to erode the constitutional rights of defendants. A good example of this can be found in the recent opinion of the Supreme Court of Ohio in State v. Montgomery, 2022 WL 23472102022 (Ohio 2022).

In Montgomery, Theodis Montgomery, was tried and convicted for raping and kidnapping A.B. At trial, the State sought to designate A.B. as its representative and have her set at the prosecution table throughout trial. The trial court overruled Montgomery's objection to these actions, "citing the alleged victim's right to be present in the courtroom under Marsy's Law." 

On appeal, the Supreme Court of Ohio disagreed, concluding that these actions violated the presumption of innocence, holding that

Although the trial court's introduction of A.B. as the state's representative might have been brief, the designation of A.B. as the state's representative was error, and that error was compounded when she was allowed to sit at the prosecutor's table throughout the trial in her dual role as the victim of the alleged crime and as the representative of the state charged with prosecuting Montgomery for that alleged crime.

Moreover, the court deemed this to be structural error, requiring automatic reversal, concluding that

Designating A.B. as the state's representative and seating her at the prosecutor's table throughout the proceedings undermined the “structural integrity of the criminal tribunal itself[.]”...They were errors that permeated the entirety of the proceedings, and the effect of these errors is too difficult, if not impossible, to measure. Allowing the victim to be introduced as the state's representative and sit at the counsel table with the prosecutor are not merely trial errors, which can be assessed for any harm caused to Montgomery in light of the evidence presented against him. To the contrary, there is no way to gauge the impact these errors had on the fundamental fairness of Montgomery's trial.



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As the victim of a crime, it is reprehensible to me that defendants seem to have more rights than victims do and are treated with far more fairness by the law.

Posted by: Sheryl Kiser | Jul 28, 2022 3:07:58 PM

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