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Ohio’s Old Self-Defense Law

On March 28, 2019, Ohio’s self-defense law changed.  Prior to that date, if an accused wanted to argue self-defense (which, if successful, would result in a not guilty finding), the person would have to prove it was more likely than not all elements of self-defense applied. Specifically, to prevail on a self-defense theory under the old law, the accused would have to prove it was more likely than not that: 1) the accused was not at fault in creating the situation (i.e., was not the initial physical aggressor); 2) the accused had reasonable grounds to believe he or she was in immediate danger of death or serious bodily harm; 3) the accused truly believed (even if mistaken) he or she was in immediate danger of death or serious bodily harm; 4) the accused did not violate a duty to retreat or escape to avoid the danger; and 5) the accused used a reasonable (not excessive) amount of force to prevent the immediate risk of death or serious bodily harm.

Ohio’s New Self-Defense Law

As of March 28, 2019, the law changed, which essentially says accused does not have to prove his or her innocence by arguing self-defense. Instead, if the facts tend to show self-defense applies, it is the State—not the defendant—who has the burden of proof. Specifically, the State, under the new law, must prove beyond a reasonable doubt that one of the self-defense elements does not apply.  (The new and controversial “Stand Your Ground” law signed by Governor Dewine on January 4th, 2021, which you can read about here removes the former duty to retreat element and goes into effect on April 4, 2021).

The new law says the accused cannot win on a self-defense theory if the state of Ohio proves beyond a reasonable doubt any one of the following: 1) the accused was at fault in creating the situation (i.e., was the initial aggressor); 2) the accused did not have reasonable grounds to believe he or she was in immediate danger of death or serious bodily harm; 3) the accused did not truly believe he or she was in immediate danger of death or serious bodily harm; 4) the accused did not use reasonable force (i.e., the accused excessive force/more force than was necessary to prevent the risk of death or serious bodily harm).  In other words, if the state proves just one of these factors, self-defense does not apply.

Ohio Courts Confused on How to Apply New Law

It is clear the new law became effective on March 28, 2019.  But this change in the law has created an issue for the courts—what about cases where the alleged crime occurred before the effective date of March 28, 2019?  Will an accused who was charged with a crime before that date, who tries to prevail on a self-defense theory, have to prove his or her innocence by proving self-defense applies? Or, does the new law that shifts the burden of proof on the state apply to those folks as well?

The 12th and 1st District Courts of Appeals have held defendants who were charged with crimes prior to the effective date of March 28, 2019 but whose trials are held after that date, can receive the benefit of the new law’s burden shifting effect (to the state).  These courts essentially say the new law changes the procedural nature of self-defense law, and therefore, it applies to all trials held after the effective date.  In other words, the new law does not speak to the conduct or when it occurred, so a retroactivity analysis is not necessary.

Other courts, including the 2nd, 11th, and 5th District Courts of Appeals hold a different opinion.  They essentially say because lawmakers who wrote the law never indicated (either in the statute’s language or elsewhere) whether it applies retroactively, the accused whose conduct occurred prior to the effective date cannot receive the new law’s burden-shifting benefit.  These courts view the change in the law as more substantive than procedural.

Both, the 1st District Court of Appeals in and the 2nd District Court of Appeals have noted this conflict in the law’s interpretation and have asked the Ohio Supreme Court to address the question so the Ohio’s self-defense law becomes clear in its application and effect.

We urge you to keep an eye out for The Ohio Supreme Court potentially addressing the issue.  This decision could have a significant impact on defendants whose cases still have not gone to trial but who were charged with a crime prior to the effective date.  If the Ohio Supreme Court were to agree with the 1st and 12th District Courts of Appeals, defendants in this situation would not have to worry about proving their innocence.

If you or someone you know have been charged with a crime, do not hesitate to contact the experienced attorneys at Rittgers & Rittgers, Attorneys at Law for you free consultation at 513-932-2115.

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