Chapter 2938: TRIAL - MAGISTRATE COURTS

2938.01 Trial - magistrate courts definitions.

The definition of "magistrate" set forth in section 2931.01 of the Revised Code, and the definition of "peace officer," "prosecutor," and "offense" set forth in section 2935.01 of the Revised Code applies to Chapter 2938. of the Revised Code.

Cite as R.C. § 2938.01

Effective Date: 01-01-1960

2938.02 Applicability of chapter.

The provisions of Chapter 2938. of the Revised Code shall apply to trial on the merits of any misdemeanor, ordinance offense, prosecution for the violation of any rule or regulation of any governmental body authorized to adopt penal regulations, or to complaints to keep the peace, which may be instituted in and retained for trial on the merits in any court or before any magistrate inferior to the court of common pleas; provided that in juvenile courts, where the conduct of any person under the age of eighteen years is made the subject of inquiry and for which special provision is made by Chapter 2151. or 2152. of the Revised Code, such matters shall be tried, adjusted, or disposed of pursuant to Chapter 2151. or 2152. of the Revised Code.

Cite as R.C. § 2938.02

Effective Date: 01-01-2002

2938.03 Setting criminal cases for trial - continuances - assignment of judges.

The magistrate, or judge or clerk of court of record, shall set all criminal cases for a trial at a date not later than thirty days after plea is received, or in those cases in which the charge has been reduced on preliminary hearing or has been certified by another magistrate, then at a date not later than thirty days from fixing of charge or receipt of transcript as the case may be. Continuances beyond such date shall be granted only upon notice to the opposing party and for good cause shown.

Criminal cases shall be given precedence over civil matters in all assignments for trial and if the volume of contested criminal matters in courts of more than one judge is such as to require it, the chief justice or presiding judge of such court shall assign additional judges from other divisions of the court to assist in the trial of such criminal matters; in the case of county courts, the presiding judge of the court of common pleas shall assign county judges from other areas of jurisdiction within the county to assist those county judges whose volume of criminal cases requires assistance.

Cite as R.C. § 2938.03

Effective Date: 01-01-1960

2938.04 Jury demand.

In courts of record right to trial by jury as defined in section 2945.17 of the Revised Code shall be claimed by making demand in writing therefor and filing the same with the clerk of the court not less than three days prior to the date set for trial or on the day following receipt of notice whichever is the later. Failure to claim jury trial as provided in this section is a complete waiver of right thereto. In courts not of record jury trial may not be had, but failure to waive jury in writing where right to jury trial may be asserted shall require the magistrate to certify such case to a court of record as provided in section 2937.08 of the Revised Code.

Cite as R.C. § 2938.04

Effective Date: 01-10-1961

2938.05 Withdrawal of jury demand.

Claim of jury, once made, may be withdrawn by written waiver of jury but in such case the court may, if a jury has been summoned, require accused to pay all costs of mileage and fees of the summoned jurors for one day's service, notwithstanding the outcome of the case. No withdrawal of claim for jury shall effect any re-transfer of a case, once it has been certified to a court of record.

Cite as R.C. § 2938.05

Amended by 129th General AssemblyFile No.81, HB 268, §1, eff. 5/22/2012.

Effective Date: 01-01-1960

2938.06 Number of jurors - peremptory challenges.

If the number of jurors to be sworn in a case is not stated in the claim, the number to be sworn shall be twelve, but the accused may stipulate for a jury of six, provided in such case the number of peremptory challenges shall be limited to two on each side.

Cite as R.C. § 2938.06

Effective Date: 01-01-1960

2938.07 Control of trial proceedings.

The magistrate or judge of the trial court shall control all proceedings during a criminal trial and shall limit the introduction of evidence and argument of counsel to relevant and material matters with a view to expeditious and effective ascertainment of truth regarding the matters in issue.

Cite as R.C. § 2938.07

Effective Date: 01-01-1960

2938.08 Defendant presumed innocent.

A defendant in a criminal action is presumed to be innocent until he is proved guilty of the offense charged, and in case of a reasonable doubt whether his guilt is satisfactorily shown, he shall be acquitted. The presumption of innocence places upon the state (or the municipality) the burden of proving him guilty beyond a reasonable doubt.

In charging a jury the trial court shall state the meaning of the presumption of innocence and of reasonable doubt in each case.

Cite as R.C. § 2938.08

Effective Date: 01-01-1960

2938.09 Grounds for objection.

In the trial of any criminal case, the grounds of an objection to any ruling or action of the judge or magistrate shall be stated if required by him.

Cite as R.C. § 2938.09

Effective Date: 03-17-1987

2938.10 Proof of territorial jurisdiction.

The state or municipality in all cases must prove the offense committed within the territorial jurisdiction of the court, and in ordinance cases within the municipality, except as to those offenses in which the court has county wide jurisdiction created by statute and as to those cases in which certification has been made pursuant to section 2937.08 of the Revised Code.

Cite as R.C. § 2938.10

Effective Date: 01-01-1960

2938.11 Order of trial.

The trial of an issue shall proceed before the trial court or jury as follows:

(A) Counsel may state the case for the prosecution, including the evidence by which he expects to sustain it.

(B) Counsel for the defendant may state his defense, including the evidence which he expects to offer.

(C) The prosecution then shall produce all its evidence, and the defendant may follow with his evidence, but the court or magistrate, in the furtherance of justice and for good cause shown, may permit evidence to be offered by either side out of its order and may permit rebuttal evidence to be offered by the prosecution.

(D) When the evidence is concluded, unless the case is submitted without argument, counsel for the prosecution shall commence, defendant or his counsel follow, and counsel for the prosecution conclude his argument either to the court or jury. The judge or magistrate may impose a reasonable time limit on argument.

(E) The judge, after argument is concluded in a jury case, forthwith shall charge the jury on the law pertaining to the case and controlling their deliberations, which charge shall not be reduced to writing and taken into the jury room unless the trial judge in his discretion shall so order.

(F) Any verdict arrived at by the jury, or finding determined by the judge or magistrate in trial to the court, shall be announced and received only in open court as soon as it is determined. Any finding by the judge or magistrate shall be announced in open court not more than forty-eight hours after submission of the case to him.

Cite as R.C. § 2938.11

Effective Date: 03-17-1987

2938.12 Presence of defendant required.

A person being tried for a misdemeanor, either to the court, or to a jury, upon request in writing, subscribed by him, may, with the consent of the judge or magistrate, be tried in his absence, but no right shall exist in the defendant to be so tried. If after trial commences a person being tried escapes or departs without leave, the trial shall proceed and verdict or finding be received and sentence passed as if he were personally present.

Cite as R.C. § 2938.12

Effective Date: 01-01-1960

2938.13 Prosecution of criminal cases.

In any case prosecuted for violation of a municipal ordinance the village solicitor or city director of law, and for a statute, he or the prosecuting attorney, shall present the case for the municipal corporation and the state respectively, but either may delegate the responsibility to some other attorney in a proper case, or, if the defendant be unrepresented by counsel may with leave of court, withdraw from the case. But the magistrate or judge shall not permit prosecution of any criminal case by private attorney employed or retained by a complaining witness.

Cite as R.C. § 2938.13

Effective Date: 11-01-1977

2938.14 Venires for juries.

Jurors in courts of record inferior to the court of common pleas shall be drawn and summoned in the manner provided in the various acts creating such courts. But no challenge to the array shall be sustained in any case for the reason that some of the jurors are not residents of the territory of the court, if it appears that the jurors were regularly drawn and certified by the jury commissioners of county or municipality as the case may be.

Cite as R.C. § 2938.14

Amended by 129th General AssemblyFile No.81, HB 268, §1, eff. 5/22/2012.

Effective Date: 01-10-1961

2938.15 Rules of evidence and procedure.

The rules of evidence and procedure, including those governing notices, proof of special matters, depositions, and joinder of defendants and offenses set forth in Chapter 2945. of the Revised Code, which are not, by their nature, inapplicable to the trial of misdemeanors, shall prevail in trials under Chapter 2938. of the Revised Code where no special provision is made in such chapter, or where no provision is made by rule of the supreme court adopted pursuant to section 2937.46 of the Revised Code.

Cite as R.C. § 2938.15

Effective Date: 01-10-1961