In Re Grand Jury Directive to Creager

Ohio Court of Appeals

In Re Grand Jury Directive to Creager

627 N.E.2d 563, 89 Ohio App. 3d 672, 1993 Ohio App. LEXIS 3508

CourtOhio Court of Appeals

DecidedJuly 13, 1993

DocketNo. 91-CA-50.

StatusPublished

This text of 627 N.E.2d 563 (In Re Grand Jury Directive to Creager) is published on Counsel Stack Legal Research, covering Ohio Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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In Re Grand Jury Directive to Creager, 627 N.E.2d 563, 89 Ohio App. 3d 672, 1993 Ohio App. LEXIS 3508 (Ohio Ct. App. 1993).

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Opinion

*673 Brogan, Judge.

The appellant, Robert L. Creager, appeals from an order of the Miami County Common Pleas Court finding him in direct contempt for failure to comply with a directive of the Miami County Grand Jury requesting a handwriting exemplar, and ordering him incarcerated until he complies with the order.

We have previously appointed appellate counsel for this appeal and determined the appeal is not moot, although the term of the grand jury has expired because the issue is capable of repetition and will evade review. See In re Miami Cty. Grand Jury Directive to Creager (1992), 82 Ohio App.3d 269, 611 N.E.2d 881.

In his sole assignment, appellant contends the grand jury order violates his right to protection against self-incrimination as guaranteed by the federal and Ohio Constitutions. We disagree.

The appellant’s assertion that the Fifth Amendment to the United States Constitution protects him from providing the grand jury his handwriting exemplar is baseless. Gilbert v. California (1967), 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178; State v. Heston (1972), 29 Ohio St.2d 152, 58 O.O.2d 349, 280 N.E.2d 376.

The Court of Appeals for Wayne County long ago held that the privilege against self-incrimination as guaranteed by Section 10, Article I of the Ohio Constitution applies only to disclosure by utterance, oral or written. State v. Gatton (1938), 60 Ohio App. 192, 14 O.O. 20, 20 N.E.2d 265. We agree that the privilege against self-incrimination as protected by the Ohio Constitution is identical to that found in the Fifth Amendment to the United States Constitution. It is a “testimonial” privilege and the privilege does not protect an accused from being required to provide examples of his handwriting. The appellant’s assignment is overruled.

The judgment of the trial court will be affirmed.

Judgment affirmed.

Wolff and Fain, JJ., concur.

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*673 Brogan, Judge.

The appellant, Robert L. Creager, appeals from an order of the Miami County Common Pleas Court finding him in direct contempt for failure to comply with a directive of the Miami County Grand Jury requesting a handwriting exemplar, and ordering him incarcerated until he complies with the order.

We have previously appointed appellate counsel for this appeal and determined the appeal is not moot, although the term of the grand jury has expired because the issue is capable of repetition and will evade review. See In re Miami Cty. Grand Jury Directive to Creager (1992), 82 Ohio App.3d 269, 611 N.E.2d 881.

In his sole assignment, appellant contends the grand jury order violates his right to protection against self-incrimination as guaranteed by the federal and Ohio Constitutions. We disagree.

The appellant’s assertion that the Fifth Amendment to the United States Constitution protects him from providing the grand jury his handwriting exemplar is baseless. Gilbert v. California (1967), 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178; State v. Heston (1972), 29 Ohio St.2d 152, 58 O.O.2d 349, 280 N.E.2d 376.

The Court of Appeals for Wayne County long ago held that the privilege against self-incrimination as guaranteed by Section 10, Article I of the Ohio Constitution applies only to disclosure by utterance, oral or written. State v. Gatton (1938), 60 Ohio App. 192, 14 O.O. 20, 20 N.E.2d 265. We agree that the privilege against self-incrimination as protected by the Ohio Constitution is identical to that found in the Fifth Amendment to the United States Constitution. It is a “testimonial” privilege and the privilege does not protect an accused from being required to provide examples of his handwriting. The appellant’s assignment is overruled.

The judgment of the trial court will be affirmed.

Judgment affirmed.

Wolff and Fain, JJ., concur.

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627 N.E.2d 563, 89 Ohio App. 3d 672, 1993 Ohio App. LEXIS 3508, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-grand-jury-directive-to-creager-ohioctapp-1993.

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