What’s on Their Minds: Proving Actual Innocence. Doss v. State

Update: On December 6, 2012, the Supreme Court handed down a merit decision in this case. Read the analysis here.

On September 26, 2012, the Supreme Court of Ohio heard oral argument in the case of Doss v. State, 2012-0162.   The issue in this case is whether the trial court properly granted Doss’ motion for summary judgment on his wrongful imprisonment claim when it relied solely on the court of appeals decision vacating Doss’ criminal conviction.


Doss was convicted by a jury of kidnapping and rape. Doss admitted he had sex with J.P., the woman involved, but claimed it was consensual. There was considerable evidence in the case about how drunk J.P. was (she was a complete stranger to Doss) so the crucial issue in the criminal case was whether Doss knew or should have known J.P. was unable to give consent because she was substantially impaired.

Doss appealed his conviction.  The Eighth District Court of Appeals vacated the kidnapping charge and initially upheld the rape conviction, concluding that there was sufficient evidence to support the jury’s finding that J.P.’s capacity to consent was substantially impaired and that Doss knew it, or should have.  Doss moved for reconsideration, which was granted. The new majority held that there was insufficient evidence to support the finding that Doss knew or had reason to know of J.P.’s condition.  The Supreme Court of Ohio denied the State’s request for review.

Upon his release, Doss filed a civil action for compensation in the Cuyahoga County Court of Common Pleas by seeking a declaration that he was a wrongfully-imprisoned person. The trial court granted summary judgment to Doss on the ground that the appellate decision to vacate Doss’ conviction could only be interpreted to mean that Doss was actually innocent. The State appealed and the Eighth District affirmed the trial court, in a split decision. The Ohio Supreme Court accepted the state’s appeal. Read the oral argument preview of this case here.

At The Oral Argument

State’s Argument

The prosecutor argued that Ohio precedent, particularly Walden v. State, is absolutely clear. An acquittal is not proof of actual innocence, nor may it be given preclusive effect in a civil action for wrongful imprisonment. Despite the clarity of this holding, the court of appeals failed to follow it.  The question isn’t whether Doss ultimately may be able to prove his actual innocence—it is whether he should have to, and the answer is yes, he must. The legislature clearly intended to separate those who were actually wrongly imprisoned from those who just managed to avoid criminal liability. Not only is an acquittal not enough to establish actual innocence, it is not enough, standing alone, to warrant summary judgment in a civil action for wrongful imprisonment.  Summary judgment in this case must be reversed, and the matter remanded for further proceedings.

Doss’ Argument

Defense counsel argued that this is not a case in which a jury returned a not guilty verdict.  If so, more would be required.  It is a case in which an appeals court, viewing the evidence in the light most favorable to the state, concluded that Doss committed no crime. That is even stronger than an acquittal. The case was not remanded for a new trial.  Doss was ordered released from prison.  The sole evidence in the trial court in the civil case was the same criminal trial transcript that the court of appeals had in reaching its determination that no crime was committed. Summary judgment was correctly granted in this case.

Here’s What Was on Their Minds

Insufficiency of Evidence, Not Guilty, Actually Innocent

There were lots of questions about the differences here.  Chief Justice O’Connor asked if there was any authority for the position that an acquittal was the equivalent of actual innocence.

Justice Lanzinger asked if what happened in this case was like a finding some countries use of guilt not proven.  Was that what the statute was trying to weed out—actual innocence versus case just not proven? She later asked defense counsel if he was saying that the failure to meet all elements of a crime means no crime was committed? In his view, was the idea of a case not proven the same as actual innocence?

In a key exchange of the day, Justice Lanzinger asked defense counsel, “are you taking the position that anyone who has a case reversed by the court of appeals that is not remanded for a new trial should be considered a wrongfully imprisoned individual?”

Answer: yes, “unless the state brings in other evidence to show otherwise, which it hasn’t done in this case.”

Justice O’Donnell asked if a finding of insufficient evidence was equivalent to an order of acquittal?  Is that the same as actual innocence?

Justice McGee Brown said she could see that the court of appeals determined the state had failed to meet its burden, but how did that translate to Doss committed no crime?  She pressed defense counsel quite a bit on this.

What Would Establish Actual Innocence?

Asked Justice Lanzinger.  Exoneration? (that’s the gold standard, said the prosecutor)  Proof of alibi or misidentification? And where does the term actual innocence come from?  It’s not in the statute.

How does one prove actual innocence, asked Justice Cupp.  Isn’t that trying to prove a negative?

Opening Those Floodgates

Justice McGee Brown expressed her concern that if the Court were to accept the defendant’s position, any person whose conviction was reversed on appeal would be allowed to claim actual innocence.

Differences Between Civil and Criminal Proceedings

Wasn’t the burden of proof on Doss in the civil action, asked Chief Justice O’Connor (answer-yes)  Was defense counsel comparing what happened in the criminal case and wrongful imprisonment as a res judicata issue? (answer—yes, based on the court of appeals finding that Doss committed no crime).

Justice Cupp asked how the difference in burden of proof applied here.

Justice Pfeifer noted that in a civil trial, evidence could be used that might be excluded in a criminal trial. So maybe a defendant who won an appeal reversing a conviction for use of improper evidence would lose a civil action for wrongful imprisonment.  Or what if after an appeal in which a criminal conviction is reversed and remanded for a new trial, the state just decides not to prosecute again.  Would the state have to pay then?

Did the Appeals Court Just Get it Wrong Here?

Asked Justice O’Donnell.  Should the Supreme Court just find that it misread Walden. Isn’t that just error correction? What new law should the Court write (professors’s note to practitioners—Justice O’Donnell asks this in nearly every case).

If the criminal case had been reversed and remanded, would we be here today, asked Justice Lanzinger?

Or Did the Trial Court Get What the Court of Appeals Said Wrong?

In the other key exchange of the day, Chief Justice O’Connor asked whether the trial court was wrong when it determined that the court of appeals reconsideration decision to reverse and vacate Doss’ conviction and order his immediate release could only mean that Doss was innocent or that no crime was committed.  Was that an accurate reading by the trial court of the appellate decision? (absolutely not, said the prosecutor, appearing relieved by the question—the  trial court did not consider the fact that the vacatur of the Doss’ conviction meant that the state failed to prove one of the elements of the charged offense beyond a reasonable doubt.)

What Happens in the Event of a Reversal?

Justice Stratton asked the state, on rebuttal, what would happen if the Court agreed summary judgment was improperly granted, and there was a full hearing, even with new evidence, and the trial court still found that defendant was a wrongfully imprisoned individual.  Then what? Even after a contested hearing, couldn’t the trial court still come to a determination of actual innocence in this matter? (answer yes, but unlikely, according to the prosecutor.)

How it Looks from the Bleachers

Professor Bettman

This looks like a reversal for the state, probably unanimously.  The matter really crystalized in the last few minutes in the state’s rebuttal.  The trial court should not have granted summary judgment in this case.  This Court is not going to hold that vacating a conviction on the grounds of insufficiency of the evidence is the same thing as actual innocence, nor is going to hold that any defendant in a criminal case reversed by a court of appeals that is not remanded for a new trial is a wrongfully imprisoned individual.  Doss can still try and establish his actual innocence, although this time he will have to in a full blown hearing, subject to cross examination, not just via a trial transcript. And the burden will be on him to do so.  And the Court may very well extend Walden to instruct trial courts not to grant summary judgment in a civil action for wrongful imprisonment solely on an appellate reversal for insufficiency of the evidence. (essentially adopting the state’s first proposed proposition of law).

Student Contributor Katlin Rust

The Court will likely unanimously reverse in favor of the State.  The case centers on whether the appellate court’s acquittal of Doss can be equated to actual innocence for purposes of his wrongful imprisonment claim.  Several justices, including Chief Justice O’Connor, pointed out that Walden settled this issue in the 1980’s – an acquittal does not show actual innocence.  No justice appeared to take up Doss’ argument that since the appellate court did not remand the case for a new trial, he is innocent.  As Justice Lanzinger opined, allowing this position could open the flood gates, allowing every case where a criminal defendant’s conviction was overruled and not remanded to claim wrongful imprisonment.  Doss may recover for wrongful imprisonment, but he will have to prove that he did not commit the crime or that the crime did not occur.  The Court will likely reiterate its holding in Walden that acquittal alone is not sufficient to meet this burden.


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One Response to What’s on Their Minds: Proving Actual Innocence. Doss v. State

  1. BH says:

    Wouldn’t there have been a preliminary hearing on probable cause prior to the original criminal trial? Shouldn’t that bar this kind of subsequent civil suit (on a quasi estoppel ground) – ESPECIALLY if Doss waived the prelim??

    I could imagine a suit like this in a case where, say, the state lacked any jurisdiction to prosecute/imprison (say on well-established but clearly ignored immunity grounds or a statute of limitations barring prosecution).

    But I don’t see how the Court of Apps failure to ‘remand for a new trial’ in this situation really has any bearing – I mean, nothing prevents the prosecution from re-charging this guy, right? Or would that be a double jeopardy violation? Was a motion for directed verdict made that should have been granted, but was rejected? Would that bar re-trial?

    The more I think about it, a “remand for a new trial” can’t FORCE a prosecutor to retry a case, can it?? I imagine all remands for a “new trial” are permissive such that the prosecution could simply just drop the charges… I suspect to hold otherwise would violate the seperation of power…

    Interesting case which raises even more interesting issues…

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