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Open Discovery: A progress report

You're representing a defendant in a domestic violence case, and comes time to cross-examine the alleged victim, you're loaded for bear.  Your client's told you about the four times he had to call the police on her, and you went and dug up those police reports, combing them for material you might be able to impeach her on during cross-examination.  Sure enough, you ask her about a statement she made during one of the earlier incidents, she denies it, and a slow smile spreads across your face as you pick a piece of paper up from the trial table and say, "Your Honor, may I approach the witness?"  He nods, you present the witness with the paper, and ask, "Ma'am, could you look at the second page of that document and tell us, is that your signature?"

At which point the prosecutor objects, and after a heated sidebar, the judge excludes the evidence because you didn't turn it over in discovery.

That's pretty much what happened in a trial over at the Justice Center this past week.  The reason for the exclusion?  Newly-minted CrimR 16(H)(3), which requires the defense to provide to the State "any evidence that tends to negate the guilt of the defendant, or is material to punishment, or tends to support an alibi."  That's right; in addition to the State's duty to disclose exculpatory evidence to you, you've now got a duty to disclose it to them.

The judge's decision on this one is almost assuredly wrong.  You shouldn't be obligated to turn over something that the other side already has, and there's case law holding that, for purposes the prosecutor's duty to disclose  exculpatory evidence under Brady v. Maryland, the prosecutor is deemed to be in possession of any police reports prepared by the agency which conducted the investigation in the case at trial.  (In fact, the best argument is that the prosecutor was required to disclose it to you, instead of you being required to disclose it to him.)  From what I was told, the judge's ruling was based on the fact that the prosecutor here hadn't known about the reports, but everything had happened in the city of Cleveland, so if the prosecutor hadn't bothered to check, that's too bad.  Life's hard.  Wear a helmet.

Still, the case shows the fits and starts that a lot of attorneys on both sides, to say nothing of judges, are experiencing with the new discovery rules.  One of the attorneys involved in the case expressed astonishment that he was required to turn over anything.  Well, that's the way open discovery works.

Or doesn't.  There are still some kinks in the system.  Down in Cincinnati, Prosecutor Joe Deters has made it a practice to withhold witness names in homicide cases ever since a witness in one of them was murdered.  And attorneys in Summit County tell me that 95% of the documents the prosecutors' office there turns over are stamped "Counsel Only," which means that the attorney can communicate the contents to the defendant, but can't give him copies.

The latter designation is a new one under the rules, and was included at the insistence of prosecutors, who related stories of defendants or their cohorts roaming neighborhoods with copies of police reports and witness statements in an attempt to discourage cooperation with law enforcement.  (The new discovery rules were the product of extensive negotiations between the Ohio Prosecuting Attorneys Association and the Ohio Association of Criminal Defense Lawyers.  Full disclosure:  I was on the Rule 16 Committee for the latter, but my contributions were relatively minimal.  I did get a nice plaque, though, and if you're willing to pay me cash money, I'll let you come to my office to see it.) 

The "Counsel Only" designation under Rule 16(C) is one of two methods prosecutors have of limiting discovery; the other is the "Certification of Nondisclosure" under 16(D).  One of the problems with the rule is that although the latter section specifies the grounds for nondisclosure, the former doesn't give any basis for the limitation.  To be sure, that designation, as well as the nondisclosure, can be reviewed by the court on motion by the defendant, but that review is for abuse of discretion, and how can you tell if there's been an abuse of discretion when there are no standards specified for how discretion can be exercised? 

One might fall back on the argument that when virtually all the documents are marked "counsel only," there's no discretion being exercised.  Which is pretty much the case.  The shift to open discovery reflected a balance of competing interests:  the desire for both parties to have full information about the case prior to trial, and the desire to protect witnesses from harm or intimidation.  The notion that such harm exists in 95% of criminal cases is absurd.

The possibility exists that the reason for much of this newfound concern for witnesses is simply that the negotiation process over the new discovery rules brought it to the forefront.  After all, the old rules contained a procedure for a prosecutor to seek nondisclosure of the identity of witnesses, and that was rarely utilized.  It may be that once everything settles down, prosecutors will realize again that not every criminal case poses risks to witnesses, and will use the procedures under the new rule more wisely.

But defense attorneys need to change their mindset, too.  It's still a card game:  You need to know when to hold 'em and when to fold 'em.  But now you need to know when to show them, too.

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