OH8: Affidavit for SW was improperly admitted into evidence of guilt at trial

Affidavit for search warrant was improperly admitted into evidence of guilt at trial. It was full of hearsay and the burden for probable cause is too low for reasonable doubt. Also, admitting a video violated the confrontation clause. State v. Smith, 2026-Ohio-552, 2026 Ohio App. LEXIS 601 (8th Dist. Feb. 13, 2026):

[*P50] As to the search warrant affidavit, the Ohio Supreme Court has held that probable cause, which is the standard used to issue a search warrant, is a lower quantum of proof than “[f]inely tuned standards such as proof beyond a reasonable doubt or by a preponderance of the evidence, useful in formal trials ….” State v. George, 45 Ohio St.3d 325, 329 (1989). “[O]nly the probability, and not a prima facie showing, of criminal activity is the standard of probable cause.” (Cleaned up.) Id. Additionally, pursuant to Crim.R. 41(C)(2) and in conjunction with a search warrant, the “finding of probable cause may be based upon hearsay in whole or in part, provided there is a substantial basis for believing the source of the hearsay to be credible and for believing that there is a factual basis for the information furnished.”

[*P51] We are aware of no case in Ohio in which the State has attempted to use a search warrant affidavit to prove an element of a criminal offense at trial. Given the lower standard of proof and the allowance of hearsay, we find search warrant affidavits, standing alone, insufficient to prove an element of a crime beyond a reasonable doubt.

[*P52] Upon review of this remaining evidence, we find it unreliable, not credible and, ultimately, not enough to sustain Smith’s convictions. The admissibility of the Video was prejudicial because, without this evidence, the State failed to prove beyond a reasonable doubt that Smith was the person who assaulted B.B.