March 18, 2020

The Honorable S. Forrest Thompson
Medina County Prosecuting Attorney
60 Public Square
Medina, Ohio 44256
SYLLABUS:
1.

2020-002
Courts may suspend jury trials to prevent the spread of the novel coronavirus,
and they may do so consistent with state
and federal speedy-trial obligations.

 Opinions Section
Office (614) 752-6417
Fax (614) 466-0013
30 East Broad Street, 26th Floor
Columbus, Ohio 43215
www.ohioattorneygeneral.gov

March 18, 2020

OPINION NO. 2020-002
The Honorable S. Forrest Thompson
Medina County Prosecuting Attorney
60 Public Square
Medina, Ohio 44256
Dear Prosecutor Thompson:
This opinion addresses your question whether courts
may, due to the current emergency pandemic concerns,
suspend jury trial activity consistent with speedy-trial
obligations. The answer is yes; courts may suspend
jury trials to prevent the spread of the novel coronavirus, and they may do so consistent with state and federal speedy-trial obligations. Although tolling speedytrial time by suspending jury trial activity is an extraordinary step, it is lawful—and responsible—to do
so during a pandemic emergency. To protect future
convictions, prosecutors who request a continuance
should ask the court to issue an order explaining in detail why a trial delay is reasonable and prudent.
(When a court continues a jury trial sua sponte, prosecutors should request an order along these lines, if the
court does not issue one on its own.) In any given case,
the prosecutor should argue to the court, and ask the
court to explain in detail, why delaying a jury trial during a pandemic does not prejudice a defendant’s right
to a defense.
*
The Ohio and federal constitutions both guarantee
criminal defendants a right to a speedy trial. Ohio
Const., Art. I §10; U.S. Const., Amend. VI; see also

 The Honorable S. Forest Thompson

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State v. MacDonald, 48 Ohio St.2d 66, 68 (1976). The
U.S. Supreme Court has not identified a precise number of days within which the Sixth Amendment requires a defendant to be brought to trial. It has instead
left it up to the States to “prescribe a reasonable period
of time consistent with constitutional standards.”
Barker v. Wingo, 407 U.S. 514, 523 (1972).
In Ohio, defendants’ speedy-trial rights have been codified in R.C. 2945.71 et seq. These statutes were “implemented to incorporate the constitutional protection
of the right to a speedy trial provided for in the Sixth
Amendment to the United States Constitution and in
Section 10, Article I of the Ohio Constitution.” State v.
Parker, 113 Ohio St. 3d 207, 2007-Ohio-1534 ¶13.
Three are worth highlighting here. First, there is R.C.
2945.71, which sets the period of time within which a
trial must be held. Second, R.C. 2945.72 creates exceptions that allow that time to be extended. Finally, R.C.
2945.73 provides a remedy if the statutory speedy trial
deadlines are not met.
The answer to your question turns on two separate issues. First, is there a statutory basis to toll the speedytrial requirements of R.C. 2945.71 during a pandemic
emergency? Second, if those requirements may be
tolled under statute, would doing so violate a defendant’s constitutional speedy-trial rights? See State v.
Davis, 46 Ohio St. 2d 444 (1976) (discussing statutory
and constitutional speedy trial guarantees separately).
I address these issues in turn.
State Statutory Law
R.C. 2945.71 provides default rules regarding the number of days in which trials must be held. But those defaults are just that, defaults—the timeframes they call
for are not absolute. State v. Lee, 48 Ohio St. 2d 208,
syl. (1976). The reason is R.C. 2945.72. The General
Assembly enacted that statute, which gives courts flexibility to extend the limits of R.C. 2945.71 where necessary, because it recognized that delay is the prudent

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course in some situations. Relevant here, R.C. 2945.72
includes a catch-all provision that allows delay during
“the period of any reasonable continuance granted
other than upon the accused’s own motion.” R.C.
2945.72(H). For ease of reference, I will call this simply
“subsection (H).”
The broad language of subsection (H) permits prosecutors to seek, and courts to grant, reasonable continuances. And the Ohio Supreme Court has held that it
permits courts to sua sponte grant such continuances
as well, though “only when reasonable and only when
the continuances are made by journal entry prior to the
expiration of the time limit.” State v. King, 70 Ohio St.
3d 158, 162 (1994); see also State v. Mincy, 2 Ohio St.
3d 6, 7–8 (1982). Whether granted on a motion or sua
sponte, the key consideration is whether the basis for a
continuance beyond the time limit is “reasonable.”
So, turning to the facts at issue here, does the current
pandemic emergency provide a “reasonable” basis for
continuance? Yes, it does. Owing to the high risk of
contagion and the danger presented by the novel coronavirus, especially to the elderly population, the Ohio
Department of Health has recently banned gatherings
of 50 or more people in a single room. Although smaller
gatherings are not prohibited, the Department of
Health “strongly recommend[s]” that Ohioans avoid
unnecessary non-family social gatherings of more than
10 people. Even for those smaller gatherings, the Department of Health has encouraged people to remain
approximately six feet away from one another. These
steps have been deemed necessary to halt the community spread of the novel coronavirus that causes
COVID-19. See Ohio Department of Health Amended
Order to Limit and/or Prohibit Mass Gatherings and
the Closure of Venues in the State of Ohio, March 17,
2020.
The practicalities of jury service make it difficult, if not
impossible, to adhere to these recommendations. That
means going forward with a trial would endanger

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jurors—and thus anyone else with whom those jurors
might interact. As your request for an opinion indicates, the daily operation of the Medina County courthouse “has the potential of putting over one hundred
citizens from all different levels of potential exposure
in close proximity to one another for extended periods
of time.”
The novel coronavirus also poses unique threats to incarcerated defendants and other individuals with
whom they might be incarcerated. That is one reason
that the Ohio Department of Rehabilitation and Correction has implemented measures prohibiting visitors
and volunteers from entering Ohio correctional facilities and has limited transfers to only those that are
mission critical. COVID-19 Updates, Ohio Department of Rehabilitation and Correction, available at
https://perma.cc/338M-GE96. Continuing jury trials
and extending Ohio’s speedy trial requirements will
help address those threats by reducing the number of
people to whom incarcerated defendants might be exposed. That, in turn, will reduce the risk that defendants might infect other jailed or incarcerated individuals while awaiting trial or upon being convicted.
Numerous other courts have suspended jury trials because of the current pandemic emergency. The specific
statutes on which these courts have relied differ in
meaningful ways from R.C. 2945.72. But even if those
decisions are not directly applicable in Ohio, their reasoning further supports the conclusion that continuing
a trial because of a pandemic emergency is “reasonable” under subsection (H).
First, the King County Superior Court in Washington
State has been most explicit in discussing why the current pandemic emergency justifies a continuation of
jury trials. That court issued a blanket order continuing all jury trials until April 27, 2020. King Cty. Emergency Order, p.9, online at https://tinyurl.com/KingCty
Order. The court’s order highlighted the large number
of citizens who are called to act as jurors, the close

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proximity of those citizens throughout all stages of
trial, and the inability to implement social-distancing
practices. Id. at pp.6–7. And it determined that requiring citizens to appear for jury duty “will more probably than not transmit the COVID-19 disease.” Id. at
p.7. For these reasons, it concluded that good cause
existed to continue the trials. Id. at p.9. The Iowa Supreme Court recently followed suit, finding that the
novel coronavirus created “good cause,” under Iowa
procedural rules, for continuing all criminal jury trials
to dates no earlier than April 20, 2020. In the Matter
of Ongoing Preparation for Coronavirus/COVID-19
Impact on Court Services, March 14, 2020 Order,
online at https://tinyurl.com/IowaSCtOrder.
As discussed above, concerns about the number of individuals involved in jury service, the inability to implement social-distancing practices, and the likelihood
of transmitting the novel coronavirus are not unique to
Washington courts. Thus, although Ohio’s speedy-trial
statutes do not contain the same “good cause” exception that the Washington court relied on, the same considerations that justified the continuation of jury trials
in King County also support a determination that the
continuance of a jury trial because of a pandemic emergency is reasonable under subsection (H).
Second, federal courts—including the United States
District Court for the Southern District of Ohio—have
also suspended jury trials because of the current pandemic emergency. In re: Court Operations Under the
Exigent Circumstanevs Created by COVID-19, General
Order 20-02, online at https://tinyurl.com/SDOHorder.
They have acted pursuant to a federal statute that specifically excludes from a speedy-trial calculation “[a]ny
period of delay resulting from a continuance granted
by any judge on his own motion or at the request of the
defendant or his counsel or at the request of the attorney for the Government, if the judge granted such continuance on the basis of his findings that the ends of
justice served by taking such action outweigh the best
interest of the public and the defendant in a speedy

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trial.” 18 U.S.C. §3161(h)(7)(A) (emphasis added).
None of Ohio’s speedy trial statutes contain similar
language. But if a pandemic emergency provides a reason to conclude that the “ends of justice” outweigh the
interest of the public and a defendant in a speedy trial,
then a continuance for the same reason ought to be regarded as “reasonable.”
Third, at least one California court held prior to the
current emergency that when a defendant had been
quarantined because of a pandemic illness (H1N1), his
trial could be delayed without violating his speedy-trial
rights. That court held that “[g]ood cause for the delay
of trial exists when an incarcerated criminal defendant
is under quarantine to prevent the spread of infectious
disease. A contrary holding would require trial court
personnel, jurors, and witnesses to be exposed to debilitating and perhaps life-threatening illness. Publichealth concerns trump the right to a speedy trial.” People v. Tucker, 196 Cal. App. 4th 1313, 1314 (Cal. Apt.
Ct. 2011). As was true of the other orders discussed
above, the Tucker decision is not directly applicable in
Ohio. The California statute provided that a “court,
unless good cause to the contrary is shown, shall order
[an] action to be dismissed” if a case was not brought
to trial within the requisite period of time. Tucker, 196
Cal. App 4th at 1317 (quoting Cal Pen Code § 1382).
And, as already noted, none of Ohio’s speedy trial statutes contain similar “good cause” language. Still, the
California court’s conclusion that a quarantine provides “good cause” for a delay nevertheless supports
the conclusion that a continuance because of a pandemic is “reasonable” under subsection (H). After all,
if it is reasonable to delay trial to protect jurors from
the defendant, then it is equally reasonable to delay
trial to protect jurors and the defendant from one another, and from anyone else who might be in the court
room.
Finally, if a court grants a motion for a continuance, or
continues a jury trial sua sponte, I recommend that the
prosecutor request an order providing explicit reasons

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for the continuance. The Ohio Supreme Court has held
that when granting a sua sponte continuance, “the trial
court must enter the order of continuance and the reasons therefor by journal entry prior to the expiration of
the time limit prescribed in R.C. 2945.71 for bringing a
defendant to trial.” Mincy, 2 Ohio St. 3d 6 at syl. (emphasis added). It has not applied the same requirement to other continuances. When a continuance is
granted upon motion, the reasons for a continuance
need only be discernable from the trial record. See
State v. Myers, 97 Ohio St. 3d 335, 2002-Ohio-6658,
¶62; see also State v. Martin, 156 Ohio St. 3d 503, 2019Ohio-2010, ¶19. But even though it may not be required, a clear statement from a court articulating its
reasons for granting a continuance will be beneficial in
light of the unique nature of present circumstances
and the possibility that any such order may be challenged on appeal.
The King County Washington order provides a helpful
model in this respect. It discusses in detail the on-going pandemic emergency, the circumstances surrounding jury trials and jury service in the county, and it explains why those circumstances are incompatible with
the social-distancing practices that are currently required to protect public-health. The order also sets a
date certain for its expiration, at which point trials will
automatically resume unless the Court issues a second
continuance.
Constitutional Requirements
Because state law will permit a continuance, the question becomes whether a continuance would comport
with state and federal constitutional guarantees. It
would.
The U.S. Supreme Court has identified four factors
that courts should consider when determining whether
a trial delay violates the Sixth Amendment’s speedytrial guarantee. They include: “Length of delay, the
reason for the delay, the defendant’s assertion of his

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right, and prejudice to the defendant.” Barker v.
Wingo, 407 U.S. 514, 530 (1972). The Ohio Supreme
Court has applied the same set of factors under the
Ohio Constitution. State v. Selvage, 80 Ohio St.3d 465,
467, 1997-Ohio-287. There is no need to balance these
factors, however, “[u]ntil there is some delay which is
presumptively prejudicial.” Barker, 407 U.S. at 530–
31; State v. O'Brien, 34 Ohio St. 3d 7, 10 (1987). “A
delay becomes presumptively prejudicial as it approaches one year in length.” State v. Adams, 144 Ohio
St. 3d 429, 2015-Ohio-3954¶90 (citing Doggett v.
United States, 505 U.S. 647, 652, n.1 (1992)).
Although it is unknown how long the current pandemic
emergency may last, in most cases it is unlikely that
the cumulative delay (accounting for other reasons
why a trial may have been continued) will approach
one year. Even if in some cases it does, that means only
that a court will need to consider the remaining Barker
factors. Absent unusual circumstances, those factors
will permit a delay.
While each of the Baker factors must be considered
when determining whether a delay is constitutionally
permissible, “[t]he flag all litigants seek to capture is
the second factor, the reason for delay.” United States
v. Loud Hawk, 474 U. S. 302, 315 (1986). As long as
there is a “valid reason” for a delay, it should be justified. Barker, 407 U.S. at 531. When considering the
reason for a delay, the U.S. Supreme Court has also
examined which party should be held responsible for a
delay. See Doggett v. United States, 505 U.S. 647, 651
(1992).
The question, then, is whether a pandemic emergency
is a valid reason for a delay. For the reasons discussed
above, it is. It poses a health threat to jurors, court
personnel, and defendants themselves. As a result, it
poses a public-health threat to the entire community in
which jurors, court personnel, and anyone else in the
courtroom live. The nature and requirements of jury
service means that this threat cannot be mitigated or

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reduced by implementing the social-distancing
measures that health experts have recommended.
Additionally, any trial delays that are caused by a pandemic emergency are attributable to neither the State
nor the defendant. In that respect, a nationwide pandemic emergency is akin to a natural disaster. Cf.
State v. Gibson, 971 So. 2d 389, 393–94 (La. Ct. App.
2007) (Delays caused by Hurricane Katrina were not
attributable to either party). Delaying a trial for that
reason does not reflect the type of gamesmanship that
would warrant “the unsatisfactorily severe remedy of
dismissal of the indictment.” See Barker, 407 U.S. at
522, 531 (“A deliberate attempt to delay the trial in order to hamper the defense should be weighted heavily
against the government.”); see also Doggett, 505 U.S. at
656–58.
It is important to conclude by emphasizing an important point. The right to a speedy trial is a foundational guarantee. While the law, as summarized in
this opinion, recognizes that the right is not always defined by a specific, absolute number of days, it is not
infinitely elastic. Any tolling of time due to the current
public health emergency must be limited by the actual
duration of that emergency.
*
Based on the foregoing, it is my opinion, and you are
hereby advised that, courts may suspend jury trials to
prevent the spread of the novel coronavirus, and they
may do so consistent with state and federal speedytrial obligations.

 The Honorable S. Forest Thompson

Respectfully,

2m

DAVE YOST
Ohio Attorney General

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