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Open Discovery - A User's Guide

I gave a summary of the provisions of the new CrimR 16, which provides for open discovery.  Now it's time to take a closer look at some of the issues that can arise in actual practice.

The first thing to look at, as a defense attorney, is what you're not getting.  The value of open discovery to your management of the case cannot be overemphasized.  Many defendants have a Pollyannish perspective about their prospects; as long as the trial is a guessing game -- what the witnesses will say, whether they'll even show up -- the defendant is going to persist in believing that the various possibilities will turn out in his favor.  Knowledge is power:  the more informed a client is about a case and the evidence against him, the more likely he is to make a rational choice regarding resolution.

So what aren't you getting?  "Work product materials," which includes internal memoranda about the case -- investigator's notes about impressions of witnesses, prosecutor's notes about theories -- are off limits, but that's understandable.  Less so is information regarding sexual assaults:  you have the right only to inspect (not copy) photos and medical records. 

Information concerning cases involving child victims is even more restricted.  In fact, the rule here is somewhat confusing:  (D)(4) specifically exempts statements of a child victim of a sex offense from disclosure, (E)(2) says that a court can order its disclosure but only for "good cause shown," (F)(4) says that defense counsel gets to inspect the statement seven days before trial (but only if the prosecutor hasn't certified that releasing the statement may subject the victim to harm -- more on that in a minute), and (F)(5) says that in any event the defense counsel gets a copy of "a copy of any discoverable material that was not disclosed before trial" on the day of trial.  But given the other provisions, is the child's statement "discoverable material" at all?  The smart move would be to move the court for disclosure under (E)(2), although the "good cause" requirement could be a stumbling block with the wrong judge and prosecutor.

The procedure for resolution of discovery disputes by the court is raises some issues, too.  Subsection (D) allow the prosecutor to withhold materials by certifying that disclosure will subject someone to intimidation or harm, either physical or economic, or would compromise an ongoing investigation (even where that doesn't pertain to the defendant).  If you object to that, you can file a motion and the court has to conduct a hearing on it, seven days before trial.  If the court finds an abuse of discretion on the prosecutor's part, she can order disclosure.  The prosecutor, in turn, can file an appeal from this.  Note that this appeal is taken under CrimR 12(K), not under RC 2945.67; it doesn't require leave of court, but it does have to be filed within seven days, not thirty. 

As I mentioned in my earlier post, the "abuse of discretion" standard is a little troublesome; while there is case law pertaining to that in an administrative setting, such as pension boards, those involve the agencies acting as a quasi-judicial body.  As I also pointed out earlier, though, it's not likely to matter:  the state's going to have a difficult time overturning a judge's decision on this, since the standard of appellate review for a decision relating to discovery is -- you guessed it -- abuse of discretion.

Another area to watch for is subsection (K), which requires experts for either side to prepare reports, and for the reports to be submitted to the other side no later than twenty-one days before trial, unless modified for "good cause."  Have you had those cases where the cop testified that he's been trained in detecting the smell of burning marijuana?  Well, he's being presented as an expert by the state.  Where's his report?  One prosecutor I talked to about this said the police report would qualify; the problem there is that the subsection also specifies that the report has to include "a summary of the expert's qualifications."

But defense attorneys also have to be careful.  Under the old rule, you weren't required to turn over statements you or your investigator had obtained.  Rule (H)(5) specifically says that you are now.  What's more, under (H)(3) you have to provide "any evidence that tends to negate the guilt of the defendant, or is material to punishment, or tends to support an alibi."   What is evidence which "tends to negate guilt"?  Does impeachment material on a state's witness count; say, evidence that a witness is a known and self-admitted drug addict?  Keep in mind that exculpatory evidence has been defined very broadly in terms of what the prosecutor has to turn over, and it includes impeachment material.  It may be that it's going to be defined just as broadly in terms of what the defense has to turn over to the state. 

More potential mischief lurks in subsection (H)(4), which requires the defense to turn over "all investigative reports, except as provided in division (J) of this rule."  The latter provision exempts work product.  I think a cogent argument could be made that any investigative report prepared for the defense is work product:  it's being done either by you or by your investigator, and it's being done in anticipation of litigation. 

One last problem is going to be confronted by trial judges:  what happens when a defendant represents himself?  Provisions about designating material as "counsel-only" -- you can tell your client about it, but can't show it to him -- come into play here.  Subsection (L)(2) allows the court to "regulate the time, place, and manner of a pro se defendant's access to any discoverable material," but it's hard to see how a defendant's access would be less than an attorney's without running afoul of the defendant's Sixth Amendment rights:  if he has the right to defend himself, he should certainly have access to the same materials his attorney would have.  Another problem that might arise in this context is the defendant initially being represented, but choosing to represent himself in the course of the proceedings.  Subsection (L)(3) provides that where the attorney-client relationship is terminated, any limited-dissemination material must be returned to the state, and any work product derived from it can't be provided to the defendant.  I don't see that passing muster.

Any new rule, especially one as expansive as this one, is going to have some kinks to work out.  The people who drafted this one -- basically, it was a cooperative effort between the criminal defense bar and the prosecutors -- did a fairly good job of ensuring that the kinks here would be minimal.


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