Bottom line
The Supreme Court of Ohio overruled State v. Luck and its progeny and adopted the United States Supreme Court's test: a defendant seeking dismissal for preindictment delay must prove both actual prejudice (missing evidence that would be favorable, material, and noncumulative) and that the delay was an intentional device to gain a tactical advantage for the State. The burden no longer shifts to the State to justify the delay, and a motion built on conclusory or speculative claims of lost evidence fails on the first prong.
The question: who must prove what when an indictment comes years late?
In 1985 Scott Wilson shook an infant, Hannah, causing severe brain trauma; a jury convicted him of misdemeanor assault. Hannah died in 2006, and an autopsy attributed her death to late effects of the injury. The State did nothing with that report until 2022, when Wilson's motion to seal his old conviction led a Clermont County prosecutor to the autopsy and to an involuntary-manslaughter indictment.
Wilson moved to dismiss for preindictment delay, citing a deceased neuropathologist, other lost witnesses and records, and the absence of any justification for the 16-year wait. The trial court denied the motion, Wilson pleaded no contest, and the Twelfth District affirmed because he had shown no actual prejudice. The Supreme Court accepted his appeal; the concurrence notes that three justices voted to deny jurisdiction (¶ 49). The question was whether Ohio's burden-shifting framework, which began with State v. Luck, 15 Ohio St.3d 150 (1984), and was restated in State v. Jones, 2016-Ohio-5105, could survive alongside the United States Supreme Court's due-process test.
The holding: Luck overruled, judgment affirmed
The court affirmed. Justice Deters wrote the opinion of the court, joined by Justices DeWine, Hawkins, and Shanahan. Justice Fischer concurred in an opinion joined by Justice Brunner, agreeing that Wilson showed no actual prejudice but objecting to overruling precedent. Chief Justice Kennedy concurred in judgment only, writing that binding United States Supreme Court caselaw resolved the case by itself.
The court announced the new standard in one sentence: a defendant challenging preindictment delay on due-process grounds has
“the burden to establish both (1) that he was actually prejudiced by the delay and (2) that the delay was an intentional device to gain a tactical advantage for the State.” (¶ 29)
Actual prejudice requires showing that the missing evidence would be, not could be or might be, “favorable, material, and noncumulative” (¶ 29). The court overruled Luck and its progeny to the extent they conflict with that standard (¶ 30), naming State v. Whiting, 1998-Ohio-575, State v. Adams, 2015-Ohio-3954, Jones, and the lead opinion in State v. Bourn, 2022-Ohio-4321 (¶ 47). Because Wilson failed the first prong, the court did not reach the second and saw no need to remand (¶ 31, 46).
The reasoning: Luck inverted both halves of the federal test
The court read United States v. Marion, 404 U.S. 307 (1971), United States v. Lovasco, 431 U.S. 783 (1977), United States v. Gouveia, 467 U.S. 180 (1984), and the weight of federal circuit authority as placing both burdens on the defendant (¶ 19 to 22). Luck departed twice. It let the absence of a justifiable reason substitute for proof of a tactical motive, which over time shifted the burden to the State (¶ 24 to 26). And it treated the possibility that lost evidence could have helped as actual prejudice:
“Speculative claims of potential harm are not sufficient to show actual prejudice.” (¶ 27)
Because the United States Supreme Court's reading of the Due Process Clause binds state courts, the court realigned Ohio law with it (¶ 29). It did not separately consider the Ohio Constitution's Due Course of Law Clause, because Wilson had not developed that argument (¶ 16, fn. 3).
Applying the test, the court confined itself to the motion to dismiss and reviewed under the usual standard: “Generally, this court reviews a trial court’s decision on a motion to dismiss an indictment for abuse of discretion.” (¶ 31). Wilson's claims about lost 1985 records were conclusory (¶ 34), the missing medical records appeared cumulative of those the State had located (¶ 35), and the detailed theory about the deceased neuropathologist appeared only in the merit brief: “First, he did not present these arguments to the trial court.” (¶ 41). The deputy coroner who performed the autopsy was available and testified that the neuropathology report was not critical to his conclusion, so the lost testimony was not shown to be noncumulative (¶ 43). In short, “Wilson has not concretely shown how Dr. Balko would have helped his defense.” (¶ 45).
The concurrence attacked the vehicle: “By failing to explicitly raise the issue of overruling the Jones burden-shifting framework below, the State has forfeited that argument in this court.” (¶ 55). The majority answered that the State had urged the Twelfth District to treat Lovasco rather than Luck as binding (¶ 18, fn. 4). The concurrence also faulted the majority for applying the new test itself rather than remanding (¶ 57) and for not addressing the Ohio Constitution (¶ 52 to 54).
Why it matters for Ohio appeals
Wilson replaces a framework Ohio courts applied for four decades. Every pending motion to dismiss for preindictment delay, and every appeal from one, now runs on a test in which the defendant carries both burdens and the State need not explain its delay. The issue recurs: a full-text search of the Ohio Judicial Analytics database for the phrase preindictment delay, run on October 15, 2026, returned 26 decisions dated January 1, 2024 through October 14, 2026, including Wilson, from the Supreme Court and ten of the twelve appellate districts, nine of them from the Eighth District.
For appellants, the trial-court motion is now the whole case. The court reviewed for abuse of discretion, measured prejudice against the motion rather than the merit brief, and treated theories that surfaced only on appeal as waived (¶ 34, fn. 6; ¶ 39, fn. 8). A record silent on the State's motive cannot satisfy the second prong even if it clears the first.
For appellees, the opinion supplies two questions to ask of any dismissal: did the defendant identify specific evidence that would be favorable, material, and not cumulative of what remains, and did the defendant prove an intentional tactical delay rather than negligence?
Four justices joined the opinion of the court, so the overruling carries the force of a majority opinion. Two justices would have affirmed without disturbing Luck, and the Chief Justice would have decided the case on federal precedent alone. The Ohio Constitution question remains open. See the Appellate Ohio overview of criminal appeals and sentencing review for related doctrine.
Practice pointers
- Write the motion to dismiss as the appellate record. The court confined review to the motion and treated theories first raised in the merit brief as waived (¶ 34, fn. 6; ¶ 39, fn. 8; ¶ 41). State what each lost witness or document would have said and which element or defense it bears on.
- Prove all three adjectives. The evidence must be favorable, material, and noncumulative (¶ 29). Explain why no surviving witness or record can supply the same point (¶ 43).
- Plead and prove intent. The second prong is the defendant's burden: an intentional device to gain a tactical advantage for the State (¶ 29, 47). Build a record on the State's motive, not on the absence of a justification.
- Develop any Ohio Constitution argument separately. The majority declined to consider the Due Course of Law Clause because Wilson had not argued it independently (¶ 16, fn. 3).
- If you want precedent overruled, say so below. The majority and concurrence disagreed over whether the State preserved its request to abandon Luck (¶ 18, fn. 4; ¶ 55). Raise it expressly at every level, and expect the Supreme Court to apply a new test itself rather than remand (¶ 46, 57).
The opinion
Supreme Court of Ohio · Decided October 14, 2026
State v. Wilson, 2026-Ohio-3988
This analysis is published for Ohio attorneys and is not legal advice. It reflects the opinion as released; slip opinions are subject to formal revision before publication in the Ohio Official Reports. Appellate Ohio was not counsel in this case.