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Open discovery is here!

So Tuesday morning I'm sitting in my office when I get a panicked call from my good buddy John Martin, the appellate guru over at the county public defender's office.  While Martin is extremely comfortable in the appeals court setting -- in his last oral argument before the Supreme Court, the justices invited him back to chambers, where he presented his case over cigars and brandy snifters -- he's now engaged in an actual trial, and he's as nervous as a cat in a Korean restaurant.  He's got a question about discovery, and figures that my abundant knowledge and keen insight will provide him the answer.  Well, actually, he figured that no one else was going to take his call at 7:30 in the morning.

At any rate, we needed to clarify a point about the discovery rules, so I pulled up Criminal Rule 16 on my BFF Lexis.  Except it's a different Rule 16 -- the one that goes into effect on July 1.  Check the Supreme Court website, John tells me:  they'll have the current rule.  No, they don't; they also have the rule which actually won't take effect for another two days.

Which is today.  So while Lexis and the Supreme Court jumped the gun, I didn't.  But now that it's the law -- and there was a long stretch when nobody was sure it would be -- it's time to check it out.  We'll take a broad look at the rule today, and the changes it makes in the discovery process.  Next week we'll take a closer look and focus on some of the legal questions that might arise under the new rules.

Let's start with the rule itself, which you can find here.  The most important thing   to understand is that it represents a stark departure from the "old way" of doing business, and, to a degree, from the adversary system of justice:  instead of a game of surprise, criminal discovery is viewed as a cooperative enterprise, where prosecutors and defense attorneys exchange information to ensure "a full and fair adjudication of the facts."  The rule sets a floor, not a ceiling, on discovery:  "nothing in this rule shall inhibit the parties from exchanging greater discovery beyond the scope of this rule."  This cooperative spirit is perhaps all the more surprising given how the rule was drawn up:  instead of a "top-down" procedure where a commission develops the proposed rule and submits it for comment, this was the result of a "bottom-up" procedure:  the rule was the product of extensive negotiations over the past year between the criminal defense bar and the Ohio Prosecutors Association.  Not only did they write the rule, they wrote the comments for it.

The discovery process is triggered by the defense's request for it; once that happens, both parties have the ongoing obligation to provide full discovery to each other (with some exceptions we'll get into in a minute) -- the state doesn't have to make its own discovery request.  Both sides have to provide items they didn't before.  For the state, it's police reports and witness statements.  And note how expansive the definition of the former is:  not just "police reports," but "reports from peace officers, the Ohio State Highway Patrol, and federal law enforcement agents."  The "witness statement" is somewhat limited; it's not all witnesses, just those whom the state intends to call, either in its case in chief or in rebuttal.  But that shouldn't be a problem:  if the state doesn't intend to call the witness because his testimony would be exculpatory, that information will be provided anyway. 

The defense has substantially greater obligations of disclosure, too.  While under the old rule, the defense needed only to provide documents, test results, and witness lists, under the new rule it has to provide investigative reports, subject to certain limitations, and written or recorded statements of its witnesses, as well as "any evidence that tends to negate the guilt of the defendant, or is material to punishment, or tends to support an alibi."  And both sides have the duty to provide written expert reports at least three weeks prior to trial, "summarizing the expert witness’s testimony, findings, analysis, conclusions, or opinion," and including "a summary of the expert’s qualifications."

The rule doesn't provide complete discovery, however; there are several limitations:

  • "Counsel only" materials -- If the prosecutor designates material in this fashion, you can communicate the contents of it to your client, but you can't show it to him.
  • Non-disclosure -- The prosecutor can certify to the court that it's withholding certain materials on various grounds, such as that it would compromise the safety of a witness, victim, or third party, or compromise an ongoing criminal investigation.
  • Sexual assaults -- Discovery here is limited to the right to inspect reports and medical records of victims, and the defense can file a motion to have those provided under seal to an expert; the same applies to the statement of a sexual assault victim under 13.
  • Work product materials, grand jury transcripts, and "materials that by law are subject to privilege, or confidentiality, or are otherwise prohibited from disclosure."

Of course, the prosecutor's right to withhold information is subject to court review:  nondisclosure or designation of materials as "counsel only" can be reviewed seven days prior to trial.  If the court finds an "abuse of discretion" by the prosecutor in that regard, it can order the material disclosed.  An amendment to Rule 12(K) allows the prosecutor to appeal that determination.

As might be expected, there's some "fleshing out" of the rule that needs to be done; questions of interpretation will inevitably arise.  Note, for example, the "abuse of discretion" standard in determining whether a prosecutor has properly withheld materials.  There's a wealth of law on what constitutes abuse of discretion by a judge; is that applicable here, or do we look at administrative law -- viewing the prosecutor as an executive agent -- and borrow concepts from that?  (And note that a trial court's discovery orders are always reviewed for abuse of discretion, which means that if a discovery order is appealed, the appellate court would be deciding whether a trial court had abused its discretion in deciding whether a prosecutor had abused his discretion.)  How does the rule impact the defendant's 5th Amendment rights?  How does "work product" play into this?  We'll take a look at some of those questions in more detail next week.  In the meantime, courtesy of the OACDL, here's a copy of a motion for discovery,  in Word format, you can use, implementing the new rule.


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