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An Ohio statute, R.C. 2935.09, establishes a method through which private citizens can file criminal charges.

R.C. 2935.09(D) provides:

A private citizen having knowledge of the facts who seeks to cause an arrest or prosecution under this section may file an affidavit charging the offense committed with a reviewing official for the purpose of review to determine if a complaint should be filed by the prosecuting attorney or attorney charged by law with the prosecution of offense in the court or before the magistrate.

The statute, R.C. 2935.09(A), defines a “reviewing official” as “a judge of a court of record, the prosecuting attorney or attorney charged by law with the prosecution of offenses in a court or before a magistrate, or a magistrate.”

The private citizen can charge the offense with an affidavit. This affidavit should meet three requirements:

• The affidavit should have a valid criminal complaint, meaning it must give a written statement of facts that would need to be proven to obtain a conviction. This statement of facts can be made in ordinary language or using the words directly from the statute that describes the crime, as long as the language used tells the accused person all of the elements of the charged offense.
• The affidavit should state the numerical designation of the Revised Code Sections that were allegedly violated. For example, an affidavit charging someone with aggravated murder would need to state that the offense was in violation of R.C. 2903.01.
• The affidavit should be made under oath before a person authorized to administer oaths.

Once the affidavit is made, it must be filed with a judge, magistrate, or prosecuting attorney. When an affidavit is filed, that does not mean that the offense is required to be prosecuted. The decision is still up to the discretion of the prosecuting authority. But when an affidavit is filed, the court will review it for probable cause that offenses were committed.

When the R.C. 2935.09(D) affidavit charges a felony, R.C. 2935.10(A) (Filing of affidavit or complaint procedure) commands a trial court to either:

(1) “forthwith” issue a warrant for the arrest of the person charged in the affidavit, or

(2) refer the matter to the prosecuting attorney for investigation.

To determine how to advise the prosecuting authority, the court will decide whether the affidavit was made in good faith and whether there is probable cause for each of the offenses charged in the affidavit.

Probable cause is the lowest standard of proof in a criminal proceeding. It requires more than a mere suspicion. Probable cause exists when the facts and circumstances known, which are reasonably trustworthy, are sufficient to warrant a prudent individual in believing another had committed or was committing an offense. State v. Cavalier, 2012-Ohio-1976, ¶ 31 (2nd Dist.) citing Beck v. State of Ohio, 379 U.S. 89, 91 (1964).

This is not a high bar. Probable cause is a lower threshold than “by a preponderance of the evidence,” because it does not require the precision or high level of certainty needed for a preponderance of the evidence. See Kaley v. U.S., 571 U.S. 320, 338 (2014), Gerstein v. Pugh, 420 U.S. 103, 121 (1975). Probable cause relies on a reasonable belief, which is less stringent than proving whether something is more likely true than not, as the preponderance-of-the-evidence standard requires. See State v. Reniff, 2001-Ohio-4353, ¶ 50 (8th Dist.) (O’Donnell, J. dissenting). And, of course, probable cause is a far less of a standard than beyond a reasonable doubt, the standard required for criminal convictions.

If the court finds that the affidavit was made in good faith and there is probable cause for the alleged offense(s), then the court will either issue an arrest warrant or recommend that the prosecuting authority file a complaint against the accused person.

A trial court may issue an arrest warrant or summons under R.C. 2935.10(B) upon a finding of probable cause. Affidavits under R.C. 2935.09(D) are governed by Crim.R. 4, which provides for an independent determination of probable cause by a judge, magistrate, clerk of court, or officer of the court designated by the judge. State v. Moss, 2003-Ohio-6053, ¶ 18 (5th Dist.).

The effect is that while the Court can issue an arrest warrant based on the affidavit, it cannot reject the complaint without affording the complainant with a hearing for the Court to independently determine probable cause, even where the prosecutor disagrees. See id at ¶¶ 15, 17, 18, 22.

And Crim.R. 4 contains a lesser hearsay standard, which allows for a finding of probable cause based on hearsay evidence, in whole or in part, when there is a substantial basis for believing the hearsay source to be credible and a substantial basis for believing that there is a factual basis for the information furnished.

After the 2014 police killing of 12-year-old Tamir Rice, the Cleveland Municipal Court found probable cause to support criminal charges in In re: Affidavits Relating to Timothy Loehmann & Frank Garmback.

Led by former federal prosecutor Subodh Chandra, Chandra Law is experienced obtaining justice for crime victims, including initiating charges under R.C. 2935.09. The firm also helped pioneer work in holding individuals and companies accountable for civil liability for criminal acts, securing the two leading Supreme Court of Ohio decisions favorable to crime victims on the topic.

If you think that your civil rights have been violated, you may contact us to discuss your options.

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