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Open discovery and no discovery

Open discovery is coming sooner than we expected.  And the 8th District upholds a judge who decides that discovery wasn't forthcoming enough...

I've written before about the ongoing battle for open discovery in criminal cases -- having prosecutors give defense counsel full access to police reports and witness statements.  The Cuyahoga County Common Pleas Court amended their local rules back in February to require open discovery, over the protests of County Prosecutor Bill Mason.  After promising to mount a legal challenge to them, though, Mason did a 180 and instituted a discovery system which was eminently fair and technically topnotch. 

In the meantime, representatives of the criminal defense bar and the state prosecutor's association have been meeting over the past year, and have hammered out an agreed revision of the state criminal rules which will provide for open discovery.  There's still some cleaning up to do, but when a final draft is agreed upon, I'll include a link to a copy of it here.

In the meantime, what happens when inadequate discovery is provided was the feature in one 8th District case last week, State v. Jones.  Jones was being prosecuted for welfare fraud, and had requested discovery of various documents and witnesses; her initial request proved unavailing, and a motion to compel elicited a similar non-response.  On the day of trial, the State finally produced the witnesses and the documents, plus a statement the defendant had made.  The trial judge decided that all of this should have been turned over long before, and prohibited the state from introducing it.

The State took it up on appeal, arguing that the sanction imposed was too onerous:  given the trial court's finding that the failure to produce the evidence resulted from negligence, rather than wilful intent, the appropriate remedy should have been to grant a continuance.  That argument relied mainly on the Ohio Supreme Court's 1987 decision in Lakewood v. Papadelis. 

Papadelis is the pre-eminent case on criminal discovery, but it's a little funky.  The city had responded to discovery, and requested discovery in return.  The defense had never responded, so when it attempted to introduce in its case, the trial court barred them from testifying.  The court of appeals reversed, holding that a party couldn't seek a sanction for failure to provide discovery unless it had first filed a motion to compel that discovery, and the State hadn't done so here.  The Supreme Court reversed that, ruling that a motion to compel wasn't a prerequisite for sanctions.  It also noted, though, that the trial court was in error in automatically excluding the evidence:  given that exclusion deprived the defendant of his right to present a defense, the appropriate course was to balance the state's interest against the defendant's interest, and choose the appropriate sanction:

A trial court must inquire into the circumstances surrounding a discovery rule violation and, when deciding whether to impose a sanction, must impose the least severe sanction that is consistent with the purpose of the rules of discovery.

That's what the State hung its hat on in Jones in arguing that a continuance should have been granted.  The 8th didn't buy the argument that Papadelis constituted a blanket endorsement of a continuance as a preferred sanction in all cases.  First, the significant difference was that exclusion in Papadelis impinged on a defendant's constitutional right, while there is no corresponding right of the prosecution.  Papadelis itself had rejected the notion that exclusion was never a permissible sanction.  The Jones court held that

The court should impose the least severe sanction that is consistent with the circumstances surrounding the discovery violation and the impact of the discovery violation.

and decided that, in the context of this case, "the prejudicial impact of a new witness and several new documents showing up on the morning of trial is inescapable."

This probably would have played out differently in a number of trial courts and before some different panels of the 8th.  With the new procedures and policies, it should happen relatively rarely.  But when you trot off to your next trial, you might want to have a copy of Jones with you in case of any surprises.  You never know.

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