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Police reports and use on cross-examination

Every criminal lawyer knows that under Criminal Rule 16(B)(1)(g), he's entitled to request an in camera examination of a witness' statement at the close of that witness' direct examination, and to use the statement in cross if the court finds that an inconsistency exists between the statement and the testimony.  How does that work with regard to police officers and their reports?

Back in 1984, the Ohio Supreme Court laid down the rule in State v. Jenkins, and reaffirmed it just two years ago:

Those portions of a testifying police officer's signed report concerning his observations and recollection of the events are 'statements' within the meaning of Crim.R. 16(B)(1)(g). Those portions which recite matters beyond the witness' personal observations, such as notes regarding another witness' statement or the officer's investigative decisions, interpretations and interpolations, are privileged and excluded from discovery under Crim.R. 16(B)(2).

Last week, in State v. Spraggins, the 8th District was confronted with a situation where defense counsel asked for an examination of the reports of the lead detective after he'd testified on direct.  The state objected, claiming that they were not discoverable, and the court rejected the defense request.  The appellate court reversed and remanded for a new trial, finding that since the trial court hadn't included the reports in the record, there was no way for the court's decision to be reviewed. 

At first blush, the decision is unremarkable, but it gets interesting if you look at it more closely.  Here's the critical passage from the opinion:

When Spraggins' counsel requested an in camera inspection of the [detective's] reports, the State claimed the reports were not discoverable, because they were work product. The trial court denied the request and failed to preserve the reports for appellate review.

When it is doubtful whether any discoverable statement exists, the court, on motion of the defendant, shall conduct a hearing on the issue of disclosure held in camera with both attorneys present and participating.  [My emphasis]

If you look at the Supreme Court decision on this from two years ago, State v. Cunningham, it seems to say that the determination of whether the defense can use a police report for cross-examination of the officer is a two-step process:  first, the court must make an "independent, threshold determination whether a 'producible out-of-court witness statement' exists within the meaning of Crim.R. 16(B)(1)(g)," in other words, whether the report is really a statement within the meaning of the rule, or whether it's simply "the officer's investigative decisions, interpretations and interpolations," and is therefore privileged.  If the court decides that the report, or a portion of it, is a "statement," then the defense counsel is entitled to participate in the court's further detemination of whether it's inconsistent with the testimony at trial, and can thus be used for cross-examination.

But Spraggans folds that two-part inquiry into a one-step process, with the defense counsel being entitled to participate in the review of the report to determine whether it's a statement at all.

Obviously, in "open discovery" jurisdictions, getting to see the entire police report isn't that big a deal.  But then again, Cuyahoga County isn't an open-discovery jurisdiction, is it?  It might be wise to have a copy of Spraggans on hand for your next trial.

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