Rules Changes

You glance over from the defense table just as the jury's about to troop back in, and see the woman your client is accused of raping raging silently at both of you from the first row of the gallery.  "Your honor, we'd request a separation of witnesses."  Separation is governed by EvidR 615, and sure it prohibits exclusion of "a person whose presence is shown by a party to be essential to the presentation of the party's case."  But that's the detective, and he's comfortably ensconced next to the prosecutor. 

And that's when you learn that EvidR 615 has been amended to also prohibit exclusion of the victim. 

The good news is that it's not the rule -- yet.  It's only a proposed rule, one of many designed to implement Marsy's Law, the Victim's Rights Amendment that passed in 2016 by a narrow 83-17 point margin.   

That's not the only proposed change, of course.   CrimR 12 would provide that the victim can file pretrial motions.  CrimR 16 would be changed to allow the victim to object to pretrial disclosure.  CrimR 11 would allow the victim to "raise any objection to the terms of the plea agreement" before the judge accepts it.  And there's a new CrimR 37, which requires the prosecutor to inform the victim of every court proceeding. 

That beggars a number of questions.  What kind of motions would a victim file?  Who knows?  Can the judge reject a plea bargain because the victim objects to it?  Would the change to the discovery rules permit the victim to tell the prosecutor she doesn't want him to turn her statement over to the defense?  Does it actually give the victim veto power over the prosecutor's duties of discovery under Rule 16?   

Not completely, of course.  The duty to disclose exculpatory evidence is required under the United States Constitution, and that trumps anything the good citizens of Ohio put in theirs.  Beyond that, though, any conflict between what Marsy's Law provides and what is specified by the Ohio statutes or rules is going to be resolved in favor of the former. 

And it may not be all doom and gloom.  One of my friends suggested that a judge could solve the separation of witnesses problem by telling the prosecution that the victim would be their first witness, and don't even dream of calling her in rebuttal.  I agree.  I think there are some judges who will do that.  Just as there are some judges who will "overrule" any objections to a plea bargain.   

But there are a lot of judges who won't.  Frankly, I'm not terribly sanguine at the prospect of elected judges manning the barricades to ward off the worst effects of a proposal that garnered the support of more than four out of five of their voters. 

There are some other changes to the rules which do benefit defendants.  One of the problems of requesting a court-paid expert is that you tip off the prosecutor to the defense you're going to raise.  That's solve by an amendment to CrimR 12, which would allow you to file motions for experts -- and investigators -- under seal.   

Bail bond reform has become A Thing, and that's reflected by numerous proposed rules changes.  CrimR 4(F) now provides more encouragement for issuing a summons and releasing a person for a misdemeanor.  And if the person does appear pursuant to the subpoena, personal recognizance is the preferred type of bail.  the courts are also required to come up with a bond schedule for all misdemeanors. 

The big change, though, is in CrimR 46, which provides that  

the court shall release the defendant on the least restrictive conditions that, in the judgment of the court, will reasonably ensure the defendant's appearance in court, the protection of the safety of any person or the community, and that the defendant will not obstruct the criminal justice process. If the court orders monetary conditions of release, the court shall impose an amount and type which are least costly to the defendant while also sufficient to reasonably ensure the defendant's future appearance in court.   

There are several other changes to the bond rules, including the use of a "risk-assessment" tool in setting bonds, but the upshot is that there's a substantial move toward allowing more defendants to avoid pretrial detention. 

But this is where we come to the "Gee, I didn't know that" moment.  There's a new paragraph (A) which has been added to CrimR 46, which provides that "A prosecutor may file a motion seeking pretrial detention of a defendant pursuant to the standards and procedures set forth in the Revised Code."  And yes, Virginia, there is just such a procedure:  it's in RC 2937.222, and allows the prosecutor to file a motion to detain a person without bail.  It applies not just to aggravated murder and murder, but to any first or second degree felony, aggravated vehicular homicide, menacing by stalking if it's a felony, and felony OVI. 

Now, I've been practicing for 43 years and the next time a prosecutor files a motion like that in one of my cases will be the first; I've never heard of it being done, at least up here.  But, as Carl Jung -- or maybe it was Carl Yastrzemski --once said, "You never know."