Trying to think of ways to spend the upcoming weekend?  You could rake those leaves and get the lawn in final shape for the upcoming winter, in which one gloomy day will follow another until by about mid-February you’re contemplating opening a vein just so you can see some color.  Or you could plop yourself in front of the TV and watch football games until your eyes glaze over, topped off by the Monday night contest featuring our Browns against the Baltimore Ravens, which promises to be only slightly more competitive than the time the Christians were getting 10½ points against  the lions down at the old Coliseum.  Here’s a better idea:   Write the Supreme Court and tell them what you think of the new proposed rules of procedure.

Procedure for what?  None for the Civil and Evidence Rules, and the Supreme Court Rules get only a slight facelift, with the numbering going from Roman to Arabic numerals, leaving the NFL and the Super Bowl as the only ones clinging to a two-millenium-old system.  (Proposed rules can be found here.)  The Appellate Rules get a slightly more substantive make-over.  One change is the adoption of the system used here in Cuyahoga County:  the court announces its decision, then journalizes it not less than ten days later, during which time a motion for reconsideration can be filed.  (Note one other modification:  the court can no longer extend the time for filing a motion for reconsideration.)  There’s one big change here for appellate lawyers.  In the present version, a motion for reconsideration doesn’t toll the time for filing an appeal to the Supreme Court.  Under the proposed rule, the appellate court’s decision doesn’t get journalized until the motion for reconsideration is ruled on; in other words, if you file a timely motion for reconsideration, the 45 days for filing an appeal to the Supreme Court doesn’t begin to run until the court of appeals rules on your motion.  The other change is the adoption of a procedure for requesting an en banc hearing, which is contained in new rule 26(A)(2). 

The proposed amendments to the Criminal Rules are far more sweeping.  There’s one minor housekeeping change allowing for electronic search warrants.  The biggie, though, is that Rule 16 has been completely rewritten to provide for open discovery.  A copy of the proposed rule can be found here, and today I’ll talk about the changes it makes in the current procedure.  Tomorrow I’ll discuss questions that might arise if the rules are adopted.

With one major exception, the new rule doesn’t change what is discoverable, but it changes the way it is “discovered.”  Practices under the old rule varied greatly.  In some counties, the first thing the defense attorney got at the arraignment was a full “prosecutor’s packet,” containing everything in the State’s file.  In some, defense counsel was allowed to look at the State’s file and request that certain items in it be copied, or take notes on its contents.  In others, like Cuyahoga County before a local rule providing open discovery was adopted last year, the prosecutor would read you the file, or at least those portions of it he deemed appropriate.  Under the proposed rule, the right to discovery is the right to copy:  defense counsel gets a copy of everything.  The major exception in what is discoverable is that witness statements, which the defense is currently not allowed to see until the witness had testified on direct, are now part of the discovery package.

Discovery can be limited in two ways.  Section (C) allows the prosecutor to designate “counsel only” material, which means only the attorney and his agents and employees can see them; the defendant cannot, although the attorney may “orally communicate” its content to his client.  And the prosecutor can refuse to divulge materials if he certifies that it falls within certain categories, mostly having to do with potential harm to witnesses or victims if the material is disclosed.  The prosecutor’s determination is reviewable for “abuse of discretion” by the trial court.

Open discovery is a two-way street, though, and Section (H) provides that the defense, if it requests discovery, has the the “reciprocal duty of disclosure. . . without further demand by the state.”  That includes documents and other tangible things, as well as the results of examinations or tests, and a much broader item:  “any evidence that tends to negate the guilt of defendant, is material to punishment, or tends to support an alibi.”  It doesn’t require you to disclose information which is inculpatory, however.  The last item is “investigative reports,” and I’ll have a good bit more to say about that tomorrow.

One of the other key changes is in Section (K), which requires either party intending to submit expert testimony to provide a report of the witness’ proposed testimony, similar to what is done now in civil cases.  Exchange of witness lists, including those witnesses either party “reasonably anticipates calling in rebuttal or surrebuttal” is provided for in Section (I).  What’s not subject to disclosure is defined in Section (J), and include work product, materials subject to privilege or confidentiality, and transcripts of grand jury testimony.  I’ll talk about that in more detail tomorrow, too.

Keep in mind that this isn’t written in stone.  The procedure for amending rules is not daunting, but it is complex.  The Supreme Court first issues the rules for comment, which “does not imply that the Supreme Court endorses or will approve for filing with the General Assembly any or all of the proposed amendments.”  Whatever it decides to submit is given to the Ohio legislature by January 15 of next year.  Then there’s a second comment period, and further revisions can be filed with the General Assembly up until May 1, 2010.  They become effective on July 1 unless the General Assembly adopts a concurrent resolution of disapproval. 

Comments for this period are due by Wednesday.   So skip the Monday night game.  Even if you don’t write any comments, skip the Monday night game.  Trust me on this.