Topics & Answers

The citizens of Ohio play an important role in our criminal justice system. Through service on a grand jury, everyday people instill a confidence in our society that criminal cases are independently considered and reviewed by the citizenry. The origin of the grand jury process comes from the founders of our nation and their skepticism towards government officials. Therefore, in order to publicly accuse a person of a serious crime, which might affect their reputation in the community, a group of normal citizens must review facts and approve of the accusation, called an indictment.

Grand juries are convened by the Common Pleas Court and consist of nine members and six alternates. Grand jurors are selected from lists of registered voters and/or licensed drivers. Most grand jurors serve for a period of three months. The Muskingum County Grand Jury meets one day a week, under normal circumstances.

A grand jury is not the same as the 12-person body that hears criminal trials. A trial jury is technically called a “petit jury.”

The county prosecutor and his assistants, representing the State of Ohio, are responsible for presenting evidence and witness testimony to the Muskingum County Grand Jury. Witnesses typically include police officers, victims and others that may have information to offer. The grand jury listens to the evidence and testimony and decides whether the accused should be tried for a felony crime. Grand juries consider felonies, which are crimes punishable by imprisonment. Lesser offenses, called misdemeanors, are considered solely by the prosecutor’s office.

If a grand jury finds “probable cause” that a crime was committed, it returns an indictment (true bill) against the accused person, allowing the case to proceed toward a trial. An indictment may only be found by the agreement of seven or more jurors. If a grand jury does not find “probable cause” that a crime was committed, it returns a “no bill,” and charges against the accused will be dismissed. Probable cause means “more likely than not.”

After all the testimony and evidence has been presented, everyone except the nine grand jury members must leave the room. The foreperson leads a discussion and conducts a vote. No vote is taken until each member has been heard. The foreperson then records the vote and files the record with the clerk of court.

The grand jurors make a pledge of secrecy. This pledge is of the utmost importance, is permanent and applies to all aspects of the grand jury proceedings. Grand jury deliberations and votes, as well as the names of witnesses and questions considered can never be disclosed by the grand jurors. There are two reasons for this oath of secrecy. First, accusations may be brought before the jury, which, after its examination, may deem the accusation as unfounded. If publicity were given to the fact that the grand jury had investigated a person or organization, their reputation might be ruined. Second, if a person who is likely to be charged with a criminal offense by the grand jury should learn of the investigation, he or she might flee or attempt to interfere with witnesses or evidence.

The grand jury can investigate any crime committed within the county. However, an inquiry must be crime-related and directed by honest and conscientious motives to decide if a person should be charged with a crime. When considering any special investigation, the details are worked out with the judge or prosecutor. Grand jurors may require the clerk of court to issue subpoenas for witnesses to appear and testify. However, grand jurors are not detectives or prosecutors authorized to make private investigations.

Ordinary citizens make up the grand jury and decide whether enough evidence exists to send a case to trial. A grand jury exercises diligence, impartiality and secrecy to protect innocent people from false accusations and to assure accused persons that any evidence against them is considered fairly.

Juror Selection

Each county Common Pleas Court randomly selects citizens’ names from lists of registered voters and people with driver's licenses who live in that county. The people randomly selected complete a questionnaire to help determine if they are qualified to serve on a jury. Those qualified are randomly chosen to be summoned to appear for jury duty. This selection process helps to make sure that jurors represent a cross section of the community, without regard to race, gender, national origin, age, or political affiliation. Service on a voir dire panel is a jury service, and it is a vital part of the trial process. 

Jury Pool to Jury Box

Being summoned for jury service does not guarantee that a person will deliberate on a jury. When a jury is needed for a trial, the group of qualified jurors is taken to the courtroom where the trial will take place. The judge and the attorneys then ask the potential jurors questions to determine their suitability to serve on the jury, a process called voir dire. The purpose of voir dire is to exclude from the jury people who may not be able to decide the case fairly. Members of the panel who know any person involved in the case, who have information about the case, or who may have strong prejudices about the people or issues involved in the case, typically will be excused by the judge. The attorneys also may exclude a certain number of jurors without giving a reason.

Types of Cases Heard by Juries

There are two types of judicial proceedings in the courts that use juries, the prosecutor’s office engages in criminal trials.

Criminal trial: An individual is accused of committing a crime. Twelve people, and alternates, make up a criminal jury. A unanimous decision must be reached before a defendant is found “guilty.” The State must prove the crime was committed “beyond a reasonable doubt.”

Guilty pleas and plea negotiations reduce the need for juries in criminal cases.

Working Together: Judge and Jury

The judge determines the appropriate law that should be applied to the case and the jury finds the facts in the case based on what is presented to them during the proceedings.

At the end of a trial, the judge instructs the jury on the applicable law. While the jury must obey the judge’s instructions as to the law, the jury alone is responsible for determining the facts of the case.

The elected prosecuting attorney is the primary minister of justice and the voice for victims in the county. As ministers of justice, Prosecutor Welch and his assistants play an integral role in our public safety. They prosecute all adults accused of felony crimes and all juveniles accused of delinquent acts, as well as adult misdemeanor offenses committed outside the incorporated areas of the county. At the same time, prosecuting attorneys are the courtroom advocates for victims of crime and their families.

The Muskingum County Prosecuting Attorney and his assistant prosecuting attorneys work closely with law enforcement to ensure proper investigation, pursue convictions for those guilty of crime, and to stand up for the rights of victims. In addition, Prosecutor Welch and his staff are responsible for the legal needs of all county and township officials and serve as counsel for those offices.

Felony criminal casework begins in Muskingum County at “Grand Jury Conference,” where felony prosecutors all meet with detectives to determine if law enforcement officers have collected enough evidence to suggest a felony offense has been committed. During this process, prosecutors provide valuable feedback to the investigators, and investigators explain the nuances of their cases.

If arrested, the accused appears before a municipal court judge who will hold a preliminary hearing to determine whether there is “probable cause” that the individual committed the alleged offense. If probable cause exists, the case is bound over to the court of common pleas. A case cannot proceed to trial in the court of common pleas unless it first goes through a grand jury.

Misdemeanor and juvenile cases have a similar intake process with the prosecutors assigned to those cases, but they do not require a grand jury.

Prosecutors on felony matters present the case to the grand jury on behalf of the State of Ohio. In this proceeding, only the prosecuting attorney, the grand jury members, and witnesses are authorized to attend. When a grand jury finds probable cause that a person committed the alleged offense, it votes to indict that person (now called a defendant), and the case is then set for trial in the county's court of common pleas. If the grand jury does not find probable cause, charges are not filed, and the grand jury process remains secret in order to protect the person who had been investigated from the risk to their reputation which might come from the public knowing they were investigated.

After indictment, a prosecutor is assigned who presents the case against the defendant. Cases can be resolved in one of several ways – by a plea agreement reached between the prosecutor’s office and the defendant’s attorney before the case goes to trial, by a jury verdict at the end of a trial, or by the decision of the judge alone when the defendant decides not to have a jury hear the evidence. The latter is referred to as a bench trial.

Throughout this process, Prosecutor Welch and his assistants balance their duties as ministers of justice and as advocates for the victims of crime with their ethical duty to consider all evidence, including evidence that either may exonerate a person accused of a crime or mitigate punishment. Prosecutor Welch’s victim-witness advocates make sure victims are aware of court dates, the status of pending court cases, and the availability of appropriate community resources and services. The prosecutor’s office always invites the input of crime victims and takes their feelings and wishes into account during the prosecution and resolution of the case against the defendant.

The Muskingum County Prosecutor’s Office also recognizes the importance of educating the general public, news media, local office holders, and other constituencies on the roles and responsibilities of their office. In addition, they are proactive supporters of community safety initiatives, especially for seniors, children, and families.

The Muskingum County Prosecutor’s Office employs two professionals as victim-witness advocates to ensure notification and participation with victims in the cases in which they were victimized. These advocates handle cases in felony, misdemeanor, and juvenile courts.

Normally, a victim will have been interviewed by law enforcement prior to the case arriving at the prosecutor’s office. Sometimes a case is processed for charges based upon the victim’s interview with law enforcement, and sometimes a victim is requested to meet with prosecutors and victim advocates prior to the filing of charges to better explain the criminal case process or to clarify facts prior to the drafting of the complaint.

Sometimes a victim may need to testify in Grand Jury, or at a preliminary hearing. If that occurs, a victim-witness advocate from the prosecutor's office will be on hand to assist the victim with understanding the process.

After the case is charged, victim advocates inform the victim of the arraignment date, of their state rights to notification, and of upcoming court dates, trial preparation, or calls or meetings to discuss the resolution of the case.

Most cases will reach a resolution, either because of a guilty plea, or a conviction at trial, which will include a judge deciding how to sentence the convicted criminal. Our office requests that victims write a letter to the judge expressing the sentence they would prefer and explaining how the crime they experienced affected their life.

Particularly in violent and traumatic crimes, writing a letter can be difficult and stressful. Reacting to an experience of victimization is a process, and something that occurs bit by bit and over time. Our office suggests during the time when a case is pending, that victims write some notes for themselves during those moments when the crime affects them during their normal day. These notes can help when the time arrives to explain the effects of the crime to the judge for sentencing.

Our prosecutors are highly trained and respected by Muskingum County’s judges, but their words in sentencing are made much more powerful by the words of the person who was directly affected by the crime. The letter written to the court is reviewed by the judge and placed in a protected pre-sentence investigation file, where it is kept if for any reason the sentence has to be re-visited by an appeals court.

Our victim witness advocates are available to assist in this process.

Finally, in the case that a criminal perpetrator receives a life sentence with the possibility of parole, our office suggests to victims and survivors that once a year, at a time of their choosing, they write a letter to the Ohio Parole Board explaining those things the victim did not get to experience during the last year. This request occurs because in such lengthy statements, it is always possible that the survivors may not be able to attend a future parole board hearing, and the letters provide life and dignity for the victim in the eyes of the board members.

The Muskingum County Prosecutor’s Office handles a wider variety of matters than are typically known by the public. One of those services refers to criminal nuisance abatement.

Ohio law declares that a property is a nuisance if it meets very specific criteria. These include a location where prostitution is occurring or permitted, a habitual resort for felons, a location where fugitives routinely hide and locations where violations of drug, gambling or alcohol laws routinely occur.

When such a location is identified by the Muskingum County Prosecutor’s Office, by means of a law enforcement tip, a public complaint or an internal investigation, our investigator will obtain data about the troublesome location. One of the most important pieces of information gathered is the record of “Calls for Service” related to the location which have been made by officers or by the public calling 911 or law enforcement dispatch about the property.

Many times, members of the public feel that their complaints or tips about drug or criminal activity don’t result in immediate action and may stop calling. Those tips, while they might not be able to be acted upon singularly, are very useful in the nuisance abatement process.

After the investigator’s work is complete, a letter is sent to the owner and possessor of the premises by the assistant prosecutor responsible for the case. The letter identifies the activities occurring on the property which constitute a nuisance and gives a deadline for the owner to bring the property into compliance. The letter also includes an invitation to appear at the prosecutor’s office for a meeting to discuss how to fix the problem.

When the meeting occurs, representatives from the Muskingum County Sheriff’s Office (often the Sheriff himself), the Zanesville Police Department (often the Chief himself), the Zanesville Law Director’s Office (often the Law Director himself), the Central Ohio Drug Enforcement Task Force, other related agencies and the prosecutor’s office are present. The purpose of the meeting is to discuss the problem and brainstorm how all the related parties can help in solving the issue.

Often, the nuisance abatement letter is sufficient to affect an eviction upon the premises. Other times, different approaches are required.

If the nuisance is not abated in a timely manner, civil attorneys from the prosecutor’s office will file a nuisance lawsuit against the property, after which all of the personal property located on the premises will be seized from the property and sold at auction for cash without appraisal and the proceeds used to pay the costs of the nuisance abatement action. The real estate will be boarded up and closed for all use for a year.

It has been the Muskingum County Prosecutor’s Office’s experience that almost all businesses, landlords and residents who have participated in this process were able to successfully drive out the nuisance activity for the betterment of the county, the city, the neighborhood, and, ultimately, themselves.

The Muskingum County Prosecutor’s Office is justice-driven. However, our prosecutors understand that, no matter how strong the evidence may be, no case is guaranteed to end in a guilty verdict at trial. Plea negotiation is the process through which the prosecuting attorney and the defendant’s legal counsel work out an agreement on how the case should end, subject to approval by the judge, and almost always by the victim, as well.

The analysis that goes into plea negotiation is complex and involves many factors. Most importantly is the strength of the case. Regardless of all other goals, the strength of the case controls what outcomes can be achieved. Other important factors are the wishes of the victims, the criminal history or background of the defendant, the risk that the defendant poses to the public in the future, the need to deter others from committing the same crimes, and the public’s interest in the outcome of the case.

Many plea agreements involve the defendant pleading guilty to a particular offense, to fewer of the charges in a multi-count indictment, or to an agreed sentence. Ultimately, the goal of plea negotiation is to make sure the penalty fits the crime. The certainty of a conviction and punishment is the primary reason that prosecuting attorneys engage in plea negotiation.

In Muskingum County, we are fortunate to have strong juries of dedicated citizens who are invested in our community and who express their standards and expectations through their jury service. The reputation of Muskingum County juries for holding offenders responsible plays a direct role in stiffening the plea offers made, and the sentences imposed in the county, by increasing the strength of the prosecutor’s case.

In cases involving multiple defendants, prosecutors may reach a plea agreement with one defendant in exchange for his or her testimony against another defendant who was more involved or more culpable. This provides the prosecuting attorney with a greater likelihood of winning a conviction against other defendants in a number of ways, first by gaining access to testimony on the “inside” of the criminal conspiracy, second by limiting the number of times the case has to be tried, and third because the remaining defendants will thereafter know that they cannot make up an alternative story about what occurred.

A common misconception is that prosecuting attorneys use plea agreements to increase their number of convictions, simply for more “wins” in court. The Muskingum County Prosecutor’s Office does not judge performance based on “wins” in court, but rather on justice achieved. If prosecutors were judged solely on the number of “wins,” it would encourage lenient offers and discourage the prosecutor’s office from pursuing challenging cases which require effort and risk in order to achieve justice. As ministers of justice in the county, prosecuting attorneys are sworn to pursue justice for every offender charged with a crime.

Estimates vary, but most legal experts agree that 90 percent of all criminal convictions are the result of negotiated pleas.

Plea agreements ensure that criminals are convicted and sentenced for their crimes, which enhances public safety. Negotiated pleas also help relieve some of the strains on court dockets and, in so doing, save taxpayer dollars. Without plea agreements, our courts would bog down, justice might not always be served, and our criminal justice system would be unaffordable for taxpayers.

Plea agreements also benefit victims of crime and their families. They bring about closure to the case, and victims are able to hear the defendants accept responsibility for the crimes they have committed. Plea agreements may help avoid further trauma for the victim and avoid the risk that a victim will be traumatized on the stand, only to again be traumatized by an acquittal and the release of their abuser.

Plea agreements benefit the criminal justice system. The sheer volume and demand of cases filling a court docket require some kind of reasonable – yet just – alternative to the time and expense involved in scheduling and holding a trial. Most criminal cases are “open and shut,” and the jury trial process is best reserved for cases where there are genuine issues of fact, although this ideal is often not the practice.

Ohio's law provides the Prosecuting Attorney with the option of seeking the death penalty only for murders that involve certain, very limited, circumstances. These include the killing of a child, or law enforcement officer; the killing of one prison inmate by another; the killing of a crime witness to prevent testimony or in retaliation for testimony; murder-for-hire cases; and in murder cases involving other serious offenses such as rape and kidnapping. The death penalty is called “capital punishment.”

The death penalty is not available where the offender is under the age of 18, or when the offender suffers from serious mental disease.

The law makes sure the death penalty can only be sought after careful consideration by the prosecutor of many factors. The most important factors are those of justice and public safety. The Prosecutor’s Office must also evaluate what mitigating factors may exist or may be contrived by the perpetrator and his advisors. Therefore, in Muskingum County, when the death penalty is being considered, the Prosecutor’s Office requests investigating agencies to perform a “mitigation investigation” at the same time that they are completing their homicide investigation. This separate investigation explores whether the murderer was provoked, forced to commit the crime by some means, understood what was going on, has a legitimate claim to having a mental disease, or has a serious history since childhood of abuse or trauma which would inform the decision on whether to pursue the death penalty.

This investigation has the additional benefit of collecting statements from witnesses before they can be coached as to what to say by defense mitigation experts and provides more truthful and therefore more useful information for assessing the penalty.

The process of trying a capital case involves extensive “voir dire” of jurors to determine whether they have pre-existing views on the death penalty. The jurors are sworn, under penalty of perjury, to honestly answer the questions asked of them. In order to be qualified to sit on a capital case, a juror cannot possess a conscientious objection to the death penalty and must swear that they would be willing to impose that penalty after reviewing the facts of a case. At the same time, a juror cannot be qualified for a capital case if they possess the belief that all persons who commit murder should be put to death.

A death penalty trial has three phases. Voir Dire, Jury Trial on the merits, and a Sentencing / Mitigation hearing, after which the same jury that decided the facts of the case will vote as to the penalty. A verdict of death requires the unanimous agreement of all jurors.

Any defendant sentenced to the death penalty in Ohio has legal options available to appeal his sentence. On average, the appeals process takes more than 15 years before the sentence becomes final. Until the time when a murderer is put to death, the Governor of the State of Ohio has the authority to change, or “commute,” the death penalty to a life sentence in prison. 

In virtually all felony criminal cases – and certainly in those involving capital punishment offenses – the Muskingum County Prosecutor’s Office consults with the victims of crime and their families. To the extent possible or prudent, the wishes of crime victims help determine the course of a criminal trial and the punishment sought for a defendant. Some victims who have lost loved ones during the commission of a capital offense believe the death penalty is the only option that assures justice. Others, wishing not to endure years of court appeals, will accept a sentence of life in prison without the possibility of parole. The Muskingum County Prosecutor’s Office makes every effort to respect the wishes of crime victims, within the broader requirement to pursue justice and achieve public safety.

Some citizens object to capital punishment and do so for a variety of reasons. These can include everything from religious beliefs to concerns that “an innocent person” might be executed. All citizens are entitled to their own conscience and beliefs, and the only intrusion the law makes with this regard is the requirement that a person’s beliefs about the death penalty be honestly disclosed during voir dire.

All prosecuting attorneys, including attorneys at the Muskingum County Prosecutor’s Office, are sworn to uphold the laws of the state, one of which is the capital punishment statute. Accordingly, the death penalty is an option for punishment in capital offense cases and will be considered and pursued when appropriate in Muskingum County.

Although capital punishment is specifically permitted by the Constitution and has been used in Ohio since the early 1800s, all state death penalty laws were suspended by the U.S. Supreme Court in 1972. However, states were permitted to rewrite their death penalty laws to address concerns expressed by the Supreme Court in its 1972 ruling. Within a few years, states began reinstituting capital punishment statutes. Ohio reinstated its death penalty in 1981. Periodic reviews of Ohio’s death penalty have, over the years, invariably placed greater and greater limitations on its application. Most recently, the Ohio Legislature added a provision excluding the seriously mentally ill from receiving that penalty.

In the past, a sentence of “life without the possibility of parole” could not be adjusted by appeals courts. The purpose of that previous law was to ensure a death penalty jury that they could forever protect society from an offender by choosing the life without parole sentence instead of a death sentence. Recently, Ohio’s courts have found ways around this law, and, therefore, there is no longer assurance that a life sentence without parole will result in a person spending their entire life in prison.