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Discovery tactics

Is there such a thing as providing discovery too soon?  The 5th District thought the defense did exactly that, and rejected a speedy trial challenge a couple weeks back in State v. Johnson.

The last statistical report for the courts issued by the Supreme Court for 2012 indicates that of 81,247 felony case terminations, a whopping 53 -- that's 6/100ths of a percent -- resulted from dismissals for speedy trial violations.  Why so low?  Because just about everything that happens tolls the speedy trial time.  If you file a motion, the time's tolled until the court rules on it.  If you file for discovery, the time's tolled until the prosecutor responds to it.  If the prosecutor asks for discovery, and you don't respond it in a timely fashion, that tolls the time.  As I wrote in a post seven years ago, when the court ruled on that last point in State v. Palmer, this is a result of a complete misreading of the speedy trial statute.  That statute tolls the time "for any period of delay occasioned by the neglect or improper act of the accused," and the court simply assumed that the defendant's failure to respond to discovery caused a delay in the trial date, without actually determining whether it did.  But that's the law, folks, so deal with it.

Which is what the lawyer in Johnson tried to do:  when he filed his request for discovery, he also filed a "reciprocal discovery response," which simply said, "Defendant reserves the right to call any and all witnesses as listed on the State of Ohio's Response to Defendant's Request for Discovery."  The 5th District agreed with the trial court that the reciprocal discovery request was not made with "due diligence," and simply ignored it.  The courts found that a "reasonable time" for the defendant to respond to discovery was twenty-five days, and tolled the time for that period, bringing the trial date just under the wire.

Where do we start?

With the new discovery rules.  As the panel notes, the 2010 amendment to Crim.R. 16, which provides for open discovery in criminal cases, "was a basic shift from previous practice and placed an affirmative duty on a defendant to provide evidence he/she intended to use to support his/her defense."  (Nobody's going to accuse the 5th District of gender bias.)  The court concluded that the "blind reciprocal discovery response" was not in keeping with the rules, because it "placed the state in the untenable position of not knowing what appellant intended to produce under Crim.R. 16(H)."

There's a bit of merit in that complaint:  the tactic of providing "reciprocal discovery" at the time you're requesting discovery from the State obviously is geared toward preserving a speedy trial claim rather than acquitting yourself of your obligations under the new discovery rules.  Especially when the "reciprocal discovery" consists of a single line saying you're reserving the right to call any of the witnesses listed in the State's response to discovery, which, of course, you haven't received yet.

But there's a reality here, too:  in at least 80% of criminal cases, if not more, the defendant doesn't have any discovery to provide, so a discovery response that you don't have anything to give them is perfectly proper.  The question is timing:  if Johnson's lawyer had given the same response two weeks after the State provided discovery, instead of doing it at the same time he requested discovery, there would have been no basis for finding the submission improper, or not in keeping with the spirit of the rules. You can't give what you don't have.

In this respect, it's important to note that Johnson gets it exactly backwards.  After discarding the "reciprocal discovery request" the defense had filed, the trial court decided that "a reasonable period within which the Defendant should have responded to the State's reciprocal discovery demand is twenty-five days," and tolled the time for that period.  In fact, under Palmer, it works the other way around:  the time is tolled after the defendant has a reasonable period of time to respond to the State's discovery.  In other words, instead of tolling the time for the twenty-five days, the court should have tolled the time after that twenty-five day period.

So, from a tactical standpoint, you can avoid the impact of Johnson by waiting about three weeks to file your discovery, and then noting that if you have any additional evidence or witnesses, you'll supplement the discovery to include them.

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