Brown v. Best Products, Inc. , 18 Ohio St. 3d 32 ( 1985 )

Clifford F. Brown, J.

On appeal plaintiff-appellant asserts that the court of appeals erred in reversing the general verdict returned in favor of the plaintiff by the jury. The appellate court found that the trial court erred in allowing comment in opening and closing statements concerning the release allegedly executed between plaintiff and defendants, which ended her criminal prosecution. For reasons discussed herein we affirm the judgment of the court of appeals.¹

Paragraph one of the syllabus in Insurance Co. v. Hull (1894), 51 Ohio St. 270, states that “[a] contract, the consideration of which, in whole or in part, is the suppression of a criminal prosecution, is without any legal efficacy, either as a cause of action or as a defense to an action not founded on or arising out of the agreement.” The public policy rationale which supported the Hull decision is as valid today as it was in 1894. One reason releases executed between private parties which offer as consideration the suppression of criminal prosecution are void is that courts have recognized that duress is inherent in the execution of such releases. The threat of' criminal sanctions places the party releasing in a state of apprehension which interferes with his legal capacity to enter into an agreement whereby he agrees not to pursue legitimate civil remedies in return for the suppression of a criminal prosecution against him. Therefore, courts have established a rule that releases such as the one which the defendants seek to enforce are void as against public policy.

There is another compelling reason why these releases are void. A release executed between private parties, the consideration of which, in whole or in part is the suppression of a criminal prosecution, is void because of a lack of consideration. The decision to pursue or drop criminal charges is vested in the state. In the case sub judice it was the county prosecutor who requested the court to dismiss the case against the plaintiff. The defendants had no authority to pursue or to discontinue the criminal charges against the plaintiff. Therefore, the release executed between plaintiff and defendants is void for a lack of consideration.²

Defendants assert in their cross-appeal that other jurisdictions, most notably California in Hoines v. Barney’s Club, Inc. (1980), 28 Cal. 3d 603, 170 Cal. Rptr. 42, 620 P. 2d 628, have recognized the validity of releases between parties in return for the dropping of criminal charges. However, an examination of these other cases reveals that the releases which were enforced by the courts were executed between a private party and a public authority. In such cases the reasons for the release may be very different than in the case of a release between private parties. See Annotation (1983), 26 A.L.R. 4th 245.

Defendant and cross-appellant Gregorcic appeals to this court the judgment of the court of appeals which reinstated him as a party defendant. Gregorcic is the security coordinator for Best Products. At the close of plaintiffs case a defense motion for a directed verdict was granted as to the defendant Gregorcic. A review of the transcript reveals that Gregorcic was actually involved in the investigation of the case and the interrogation of the plaintiff on behalf of Best Products. Before a motion for a directed verdict may be granted, the evidence must be such that reasonable minds could come to but one conclusion. Construing the evidence most favorably for the plaintiff herein, the trial court erred in dismissing Gregorcic. Reasonable minds could not reach the conclusion that Gregorcic was in no way involved in any of the actions taken by the defendant Best Products which may be the basis of liability. Therefore, Gregorcic must remain as a party defendant in the present action.

The admission of a polygraph test by the plaintiff was denied by the trial court. Absent an agreement between the parties polygraph tests are not a generally accepted method of proof. See State v. Souel (1978), 53 Ohio St. 2d 123 [7 O.O.3d 207], and Aengst v. Bd. of Medical Quality Assurance (1980), 110 Cal. App. 3d 275, 167 Cal. Rptr. 796. Plaintiff submits that the test should have been allowed into evidence as proof of malice on the part of the defendants in pursuing the criminal action. Evid. R. 403 requires a trial judge to decide if evidence has a greater prejudicial impact than a probative value. In such cases evidence should be excluded. In the present case it is inadmissible because the prejudicial impact it would have on the jury far outweighs any value it would have as probative evidence. The lower courts properly concluded that evidence of a polygraph test was inadmissible.

Therefore, the judgment of the court of appeals is affirmed.

Judgment affirmed.

Celebrezze, C.J., Sweeney and Locher, JJ., concur. Holmes, Douglas and Wright, JJ., dissent.

1 The validity of the release and the directed verdict granted in favor of defendant Lou Gregorcic are before the court on a cross-appeal by the defendants. The plaintiff filed a motion to dismiss the cross-appeal asserting that the defendants had failed to file a notice of appeal and a memorandum in support of their cross-appeal before this court. However, the court denies that motion and accepts jurisdiction over the cross-appeal finding that the interests involved in the cross-appeal are a part of the decision of this case. There can be no prejudice in the instant case if the defendants’ cross-appeal is maintained because the plaintiff had notice of the cross-appeal on April 20, 1984. The issues of the validity of the release executed and the court of appeals’ reversal of the directed verdict in favor of defendant Lou Gregorcic are not a surprise to the plaintiff. Therefore, the court has decided to reach all of the issues involved in this case and denies plaintiff’s motion to dismiss the cross-appeal.

2 See Wilson v. United States Lines (1971), 15 N.J. Super. 175, 275 A. 2d 457; Lyons v. Davy-Pocahontas Coal Co. (1915), 75 W. Va. 739, 84 S.E. 744; Kabnick v. O’Malley (1977), 58 App. Div. 2d 804, 396 N.Y. Supp. 2d 253.