Ohio Rejects Challenge to Legal Ethics Expert’s Testimony

State v. Marshall, 2016 Ohio 100 – Ohio: Court of Appeals, 8th Appellate Dist. 2016 – Google Scholar:

Marshall was convicted of bribery for his attempt to pay an alleged rape victim to drop a case against one of his clients. Marshall brought a post conviction petition challenging the work of his attorney, claiming that the attorney rendered ineffective assistance of counsel by failing to challenge the trial testimony of a legal ethics expert for the prosecution.  The trial court dismissed the petition and the appellate court affirmed.
At trial, Marshall argued that he was simply trying to settle a civil claim. The prosecution called a legal ethics expert to rebut that testimony.  The court rejected the argument that the expert witness needed to have experience with criminal law. The expert witness needed only to have experience with legal ethics. The court explained:

The test is whether a particular witness offered as an expert will aid the trier of fact in the search for the truth. Id. Jonson did not opine regarding whether Marshall committed any criminal offenses. His opinions focused on the ethics of Marshall’s conduct under Ohio’s Rules of Professional Conduct, an issue Marshall himself raised when he argued that his offers were ethical and permissible because he was simply trying to settle a potential civil claim. Marshall at ¶ 18-19. We determined in Marshall that Jonson’s testimony in this regard would be relevant and helpful for the jury to understand and determine that issue. Id. Thus, a challenge to Jonson’s qualifications would not have been successful and, accordingly, trial counsel was not ineffective for not so objecting. Appellate counsel is not ineffective for failing to assign this meritless argument as error. State v. Smith, 8th Dist. No. 81539, 2004-Ohio-993, ¶ 4.

Edward X. Clinton, Jr.


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