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The discovery rules and work product

Your client's charged with murder, and he's claiming self-defense. Your investigator found a good witness, who'll corroborate your client's testimony that, just before the shooting, the victim made a move as if he was going into his jacket to get a gun. Unfortunately, the witness told the investigator something else: that your client has indictated to him on numerous occasions before this that he wanted to kill the victim.

What, if anything, do you have to tell the prosecutor about what your investigator found out? That's the issue that the 2nd District tackled last week in State v. Crews.

Three years ago, the answer would have been simple: nothing. At that time, the rules required you to turn over only "documents and tangible objects," "reports of examinations or tests," and the names and addresses of witnesses you intended to call. If you did call a witness, you had to turn over any written or recorded statement they'd made. Of course, the prosecutor was required to disclose the same thing, and nothing more.

But back in July 2010, CrimR 16 was revised to provide for "open discovery." No more playing games of hide-and-seek; now the defense attorney gets all the police reports and the witness statements. But open discovery was intended to be a two-way street; as the rule specifically provides, "all duties and remedies are subject to a standard of due diligence, apply to the defense and the prosecution equally, and are intended to be reciprocal."

That's what the State hung its hat on in Crews. Crews was charged with felonious assault of his girlfriend, and his investigator had taken statements made by two witnesses for the defense. On the second day of trial, the State demanded that the defense disclose the report, under the reciprocal discovery rule. The trial judge ordered the defense to make the investigator available for interview and rebuttal testimony by the State. When the witnesses were called, the prosecutor cross-examined them as to statements they'd made to the investigator, which they denied making; the State then called the investigator to impeach them on that point.

Crews was convicted, and argued on appeal that the investigator shouldn't have been compelled to disclose what the witnesses had told him. This implicates several portions of the rule. Division (H) spells out the duties of disclosure by the defendant, and subsection (3) provides that the defense is required to turn over "any evidence that tends to negate the guilt of the defendant, or is material to punishment, or tends to support an alibi," and contains the further proviso that "nothing in this rule shall be construed to require the defendant to disclose information that would tend to incriminate that defendant." Subsection (4) requires the defendant to disclose "all investigative reports, except as provided in division (J) of this rule," and division (J) provides that, for both sides, "work product" is exempt from disclosure.

It might seem that work product is the easier way to go, but it's not. Under the old rule, "statements made by witnesses or prospective witnesses to the defense attorney or his agents" were specifically excluded from discovery, but that language was left out of the new rule; the 2nd District concludes that what's left under work product protection is only "internal documents made by the defense attorney or his agents in connection with the defense of the litigation."

But the 2nd District decides that the trial court was still wrong, because (H)(3) precludes the disclosure by the defendant of inculpatory information, in whatever form:

The defense investigator's report was "information" that "tended to incriminate" Crews. The defense investigator's report contained impeaching and incriminating statements of the witnesses Black and Dant. The State argues that it used the statements of Black and Dant contained in the report solely for impeachment purposes. But the wording of Crim.R. 16(H)(3) is not concerned with the use the State intends to make, or does make, of the information. If the information tends to incriminate, then no section of Crim.R.16 will be interpreted to require its disclosure.

That's a good, hard, fast rule, but there's a few wrinkles here. First, 16(H)(5) requires the defense to disclose "any written or recorded statement by a witness in the defendant's case-in-chief, or any witness that it reasonably anticipates calling as a witness in surrebuttal." That's reciprocal to the State's duty to disclose the written or recorded statements of its witnesses. Crews clearly holds that disclosure of witness statements is subject to (H)(3): you don't have to turn over statements that are inculpatory. Does that mean you have to turn over the statements after redacting the inculpatory information? Probably so.

Another tricky situation arises if your investigator took a statement from a witness the State intends to call. Do you have any obligation to turn that over? Arguably, if it contains exculpatory information, it could fall under (H)(3)'s requirement to disclose "any evidence that tends to negate the guilt of the defendant." The 2nd District tackled that question a year ago in State v. Pierce, which I discussed here. (In fact, in the post, I somewhat anticipated the issue that arose in Crews.) The court concluded that you only need turn over statements of witnesses that you intend to call, and neither side has an obligation to turn over statements that are intended solely for impeachment purposes.

Crews'treatment of work product is a little discomfiting, but the opinion makes up for it with its expansive reading of (H)(3). Of special note is that the opinion doesn't limit the nondisclosure of inculpatory information to that particular subsection: the court holds that the limitation applies to the entire rule. In short, at no point do you have any duty to disclose any information, in any form, that's inculpatory. That really isn't fully reciprocal discovery, but, as the court notes, it's consistent with the defendant's 5th Amendment right against self-incrimination. And given the massive disparity in investigative resources between the State and the defendant, it's completely appropriate.

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