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After an alleged victim has filed a police report relating to an alleged sexual offense, the investigation conducted by law enforcement will play a critical role in determining whether a prosecutor decides to file formal criminal charges against an alleged offender. It is important for people who are accused of committing sex crimes to understand their rights during the initial phases of an investigation.
Being investigated is not the same as being arrested, and being arrested does not automatically mean that a prosecutor will file criminal charges. Prosecutors will typically take numerous factors into consideration after receiving police reports, including the criminal record of the alleged offender, the evidence that was collected, statements made by alleged victims and alleged offenders, and—perhaps most importantly—the chances of being able to prove an alleged offender’s guilt beyond a reasonable doubt.
If you believe that you may be under investigation for an alleged sexual offense in Central Ohio, it is in your best interest to not say anything to authorities unless you have legal counsel. Even seemingly innocent statements can be twisted and used against you, but Joslyn Law Firm can ensure that you are not tricked into making any misstatements that lead to criminal charges.
Brian Joslyn is an experienced criminal defense attorney in Columbus who represents clients in Reynoldsburg, Hilliard, Whitehall, Worthington, Bexley, Dublin, Grove City, Gahanna, Upper Arlington, Westerville, and many surrounding communities in the greater Franklin County area. He can provide an honest and thorough evaluation of your case as soon as you call (614) 444-1900 today to take advantage of a free, confidential consultation.
A rape kit is the phrase used to describe the package of materials used by medical professionals to perform forensic examinations of alleged victims of sexual offenses. Using a rape kit is an extremely invasive process that can take several hours and requires alleged victims to submit to swabs, photographs, and other intrusive measures to collect evidence.
The contents of a rape kit can vary by the specific location of where the examination is being performed, but most kits generally include the following items:
Alleged victims have the right to stop or skip any step of a rape kit examination process at any time, and any injuries they sustained as a result of an alleged sex crime will be treated first before the rape kit examination is performed. Undergoing a rape kit examination does not obligate alleged victims to report the sexual offenses to police, and reauthorizations of the Violence Against Women Act (VAWA) have required states to pay for the cost of rape kits such that alleged victims cannot be forced to pay anything for submitting to the examinations—regardless of whether they decide to file police reports.
Rape kits are enormously important to the eventual prosecution of alleged sex crimes because they are typically performed as soon as possible after the commission of an alleged sexual offense and allow for the collection of DNA evidence. Rape kits are most beneficial when alleged victims do not do anything that affects the evidence that can be collected, such as showering, changing clothes, or attempting to clean any areas that were harmed in the commission of an alleged sex crime.
While physical evidence obtained from alleged victims during rape kit examinations is considered to be one of the strongest forms of evidence that prosecutors can use in handling alleged sexual offenses, another element of criminal investigations that can be extremely valuable is any statement made by the alleged offenders. Authorities are often specially trained on how to handle alleged sex crimes, and they will typically try to interrogate alleged offenders as soon as possible before they decide to exercise their right to remain silent.
One common way that police are able to interrogate alleged offenders is through their submission to polygraphs, commonly called lie detectors. A lie detector measures and records such physiological indices as a person’s blood pressure, pulse, and respiration while he or she is asked and answers questions.
Alleged offenders who believe they are innocent can be tempted to submit to polygraphs when they believe that passing the lie detector tests will ultimately prove they did not commit the crimes in question. The results of a polygraph, however, are not admissible at trial. Certain responses can still be used to produce false confessions.
Authorities are generally not concerned with the results of a lie detector test. Police officers are often more focused on being able to ask alleged offenders certain questions so they can get their responses on the record—and those statements are admissible at trial, as the Supreme Court of Ohio ruled in its August 2008 decision in State v. Jeffries, 119 Ohio St. 3d, 2008-Ohio-3865.
In that case, Jennifer L. Jeffries called the Lake County Sheriff’s Department on December 4, 2001, to report that she and Dustin Spaller had been the victims of a robbery. Spaller had been found dead in Recreation Park in Painesville, and the Painesville Police Department investigated the case for more than a year and a half without pursuing an indictment.
In October 2002, an assistant public defender arranged for Jeffries to submit to a polygraph test with an independent polygraphist that exonerated her of any knowledge of or responsibility for the murder. Jeffries also submitted a written statement to the polygraphist, and she and her attorneys signed a cooperation agreement in May 2003 with Lake County prosecutors which granted her immunity on all charges related to the murder of Spaller.
The agreement required Jeffries to cooperate with prosecutors and submit to a polygraph to confirm her truthfulness, but Jeffries failed the polygraph and subsequently fled the jurisdiction. The agreement thus became void, and Jeffries was indicted on several charges arising from the murder.
Jeffries’ lawyer sought to suppress her statement to the polygraphist, but the court denied that request and she was ultimately convicted of trafficking in cocaine, tampering with evidence, involuntary manslaughter with a firearm specification, complicity to robbery with a firearm specification, and murder with a firearm specification. The Eleventh District Court of Appeals reversed the conviction, but the Supreme Court reversed the Eleventh District’s judgment, writing:
Evid.R. 410(A)(5) provides that the following is not admissible against the defendant in any civil or criminal proceeding: “any statement made in the course of plea discussions in which counsel for the prosecuting authority or for the defendant was a participant and that do not result in a plea of guilty or that result in a plea of guilty later withdrawn.” (Emphasis added.) It is clear from the language of Evid.R. 410(A)(5) that the rule protects statements that were originally made in the course of plea discussions—not statements that were made prior to plea negotiations and later provided to the state.
Evid.R. 410 protects statements that were originally made in the course of plea discussions. We have held that in order for statements to be protected by Evid.R. 410, it is necessary that “at the time of the statements, the accused had a subjective expectation that a plea was being negotiated.” (Emphasis added.) State v. Frazier (1995), 73 Ohio St.3d 323, 652 N.E.2d 1000, syllabus. We also held that the subjective belief of the accused must have been “reasonable under the circumstances.” Id. Frazier thus stands for the principle that Evid.R. 410 protects the statements of an accused when, at the time the statements were originally made, the accused had both a subjective and an objectively reasonable expectation that a plea was being negotiated. Frazier does not stand for the principle that Evid.R. 410 protects the statements of an accused when, at the time the statements were provided to the state by the accused or his or her attorney, the accused had an expectation that a plea was being negotiated.
A defendant cannot protect existing statements by providing them to the prosecution in the course of plea discussions. We have long recognized a similar principle in the context of attorney-client privilege: “ ‘A document of the client existing before it was communicated to the attorney is not within the present privilege so as to be exempt from production. But a document which has come into existence as a communication to the attorney, being itself a communication, is within the present privilege.’ ” (Emphasis sic.) In re Klemann (1936), 132 Ohio St. 187, 7 O.O. 273, 5 N.E.2d 492, quoting 5 Wigmore on Evidence (2d Ed.1923) 67, Section 2318 (applying the rule that an attorney may not testify regarding a communication made to him by his client).
The statement at issue here was made far in advance of plea discussions, and there is no evidence that Jeffries believed that her statement to the polygraphist was made in the course of plea discussions. Indeed, the court of appeals recognized that the parties “were not engaged in active plea negotiations in October 2002” and that Jeffries “may not have had a subjective expectation that her counsel was preparing for a plea negotiation at the time the statement was given.” Jeffries, 2007-Ohio-3366, ¶ 72, 74. That conclusion should have directed the court of appeals to simply apply the plain words of the rule to the facts in the record and affirm the judgment of the trial court. That the statement was later provided to the prosecution in the course of plea discussions is irrelevant. Jeffries’s statement was not protected by Evid.R. 410.
Ohio Attorney General Mike DeWine | Investigation Division — The Bureau of Criminal Investigation (BCI) is a prosecution service of the Attorney General’s Office that provides assistance with crime scene analysis, criminal intelligence work, and laboratory processing of evidence gathered at a scene. The Investigation Division is one of three divisions of the BCI (the Identification Division and the Laboratory Division are the other two). On this section of the Attorney General’s website, you can learn more about what the BCI’s Investigation does and the units that comprise each of the two divisions within the Investigation Division (the Investigations-Operations Division and Investigations-Investigative Services Division).
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ENDTHEBACKLOG — ENDTHEBACKLOG is a program of the Joyful Heart Foundation, a national nonprofit organization with the mission to “transform society’s response to sexual assault, domestic violence, and child abuse, support survivors’ healing, and end this violence forever.” As the website points out, it is estimated that hundreds of thousands of rape kits across the United States remain untested, and this not only deprives alleged victims of possibly justice but could also exonerate innocent people. Learn more about where rape kit backlogs exist, why they exist, and why rape kit testing is important.
Do you think that you could be under investigation in Central Ohio for allegedly committing a sexual offense? Do not make any kind of statement to authorities until you have first contacted Joslyn Law Firm.
Columbus criminal defense attorney Brian Joslyn aggressively defends people accused of sex crimes all over Delaware County, Licking County, Fairfield County, Franklin County, Union County, Pickaway County, and Madison County. Call (614) 444-1900 or fill out an online contact form right now to have our lawyer review your case and answer all of your legal questions during a free initial consultation.