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Tips and Tricks: Criminal discovery and speedy trial

As I mentioned last week, the various Supreme Court decisions on the statutory right of speedy trial in recent years have essentially reduced the entire concept to an abstraction.  Four years ago in State v. Brown, the court held that filing a request for discovery or other motion tolled the time until the state answered; last year in State v. Sanchez the court ruled that a defendant's motion in limine tolled the time; last week's ruling in State v. Palmer held that the time was tolled if the defendant failed to respond to the state's discovery in a reasonable time; and yesterday in State v. 7New86 the court determined that time was tolled if the defendant's name began with an alphanumeric character, a ruling that will probably be expanded in the pending case of State v. #fre*&.

Okay, I made those last two up, but you get the idea.  So what's a poor boy to do?

Well, several things.  First, for most cases, filing a request for a bill of particulars (which also tolls the time) is a waste, and you can probably get all the discovery you need at the pretrial.  Wait until the day of trial to file a motion in limine.  Make sure you respond to the state's request for discovery within three to four weeks, and indicate that you'll supplement the responses as necessary. 

Now, it may not be appropriate to do those things.  The most serious risk is in not filing a request for discovery.  If you've filed one, and at trial the state calls a witness who's not on their list, you have an objection to them doing that; if you haven't filed one, there's nothing to prevent them from doing that.

On that score, last week's decision in Palmer might actually be helpful.  As noted, Brown holds that the time is tolled from the time you request discovery until the state responds to it.  There are a number of courts, and the court of appeals in Palmer was one, which have held that the time isn't tolled if the state unreasonably delays its response.  After the Supreme Court's decision in Palmer upholding the trial court's determination that any delay beyond 30 days in responding was unreasonable on the part of the defendant, I think a real good argument can be advanced that the same logic applies to the state:  any delay beyond 30 days doesn't toll the time.

One more thing.  I gave a seminar on developments in criminal law last Thursday to the Cuyahoga Criminal Lawyers Defense Assocation, and somebody raised the point that the county prosecutors office is now serving defendants with discovery requests, even where the defendant hasn't requested discovery himself.  The lawyer said that the prosecutors office believes they're allowed to do this.

Well, I believe I should be the Pope, but that don't make it so.  Rule 16 clearly conditions the state's right of discovery to the defendant's having first requested it.  Here's the first provision for discovery from the defendant under 16(C)(1):

a) Documents and tangible objects. If on request or motion the defendant obtains discovery under subsection (B)(1)(c), the court shall, upon motion of the prosecuting attorney order the defendant to permit the prosecuting attorney to inspect and copy or photograph books, papers, documents, photographs, tangible objects, or copies or portions thereof, available to or within the possession, custody or control of the defendant and which the defendant intends to introduce in evidence at the trial.

The others read the same way; the prosecuting attorney has no right to discovery unless the defendant has filed for and received it from the state.  In light of the Palmer decision last week, it's best not to ignore this.  File a response with the court indicating that the state's request is improper, and you won't respond to it further, because you didn't request discovery.

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