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Can a Judge Order an Alleged Victim to Allow the Defendant and Their Attorney to Photograph the Inside of Their Home?

No, according a recent decision by the First District Court of Appeals. In State ex rel. S.L. v. Rucker, 2020-Ohio-584, the First District granted a writ of prohibition for S.L. preventing the trial judge from compelling her to allow the defendant or his agent access to her residence. In other words, the First District held that Judge could not order S.L. to allow the defendant access.

This case stemmed from an ongoing domestic violence charge in Hamilton County Municipal Court. The defendant in that case, Tepe, had shared a residence with S.L. There was also a pending civil protection order giving S.L. exclusive use of the residence. This residence was the site of the alleged domestic violence crime. Tepe's attorney sought and obtained permission from the court for the attorney and Tepe to access to S.L.'s home for one hour, with police escort, for the purpose of taking photographs. 

Utilizing Marsy's law, which is the Ohio constitutional amendment granting certain rights to crime victims, S.L. brought an action in the First District seeking to prohibit this order. Ultimately, the First District found that "[n]othing in the Ohio Rules of Criminal Procedure, the Ohio Constitution, or the United States Constitution authorizes a trial court to force a nonparty to allow a criminal defendant to access the nonparty's private residence." As such, it determined that the trial court lacked authority to issue such an order.

Where does it go from here?

In deciding the case on these grounds, the First District did not have to consider whether the order at issue violated S.L.'s constitutional rights as a victim under Marsy's Law, or whether S.L.'s right to privacy as a victim is paramount to a defendant's rights to due process and a fair trial. Adequate Remedy at Law. The second argument may be of the most interest to criminal defense attorneys, as it calls into question whose constitutional rights (either the alleged victim or the defendant) take precedence. That issue, though, will have to be addressed in another case. 

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