One of the things Phil Korey taught me is perseverance in investigating a criminal case. A part of that is making full use of Crim. R. 16, due process, the Public Records Act and our intuition.
Crim R. 16. It’s always good to review what must be provided by the state in response to a demand for discovery in a criminal case. First, the items must be material to the preparation of a defense or intended use by the state as evidence at trial or obtained from or belong to the defendant. Second, the items must be within the possession of, or reasonably available to the state. Third, the items subject to discovery are: written or recorded statements by the defendant (and co-defendant), including police summaries; criminal records of the defendant (or co-defendant) and the record of prior convictions that could be admissible under Evid. R. 609 of a state’s witness; laboratory or hospital reports, books, papers, documents, photos, tangible objects, buildings or places; results of physical or mental exams, experiments or scientific tests; any evidence favorable to the defendant and material to guilt or punishment; all reports from law enforcement agents; written or recorded statements by a state’s witness; the witness list; and the report of an expert witness.
Due Process – Prosecutor’s Duty to Provide Exculpatory Evidence. Exculpatory evidence falls into two broad categories: (1) Evidence which tends to negate guilt or create doubt; and (2) evidence which impeaches a government witness. See Kyles v. Whitley, 514 U.S. 419 (1995) and United States v. Bagley, 473 U.S. 667 (1985).
In Brady v. Maryland, 373 U.S. 83, 87 (1963), the United States Supreme Court held “that the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.” Under Rule 3.8(d) of the Rules of Professional Conduct, a prosecutor is also ethically obligated “…to make timely disclosure to the defense of all evidence or information known to the prosecutor that tends to negate the guilt of the accused or mitigates the offense….” A prosecutor’s obligation to disclose exculpatory evidence extends to “…a duty to learn of any favorable evidence known to the others acting on the government’s behalf in the case, including the police.” Kyles, at 437. Thus, “it is not in my file” does not justify a failure to disclose exculpatory evidence.
Public Records Request Can be Made in a Pending Criminal Case. In State v. Athon, 136 Ohio St.3d 43, 2013-Ohio-1956, the Supreme Court of Ohio made it clear that its prior decisions do not bar an accused from obtaining public records that are otherwise available to the public. In its Syllabus the Court elaborated that R.C. 149.43 (the Ohio Public Records Act) provides an independent basis for obtaining information potentially relevant to a criminal proceeding, and Crim. R. 16 does not preclude an accused from obtaining public records from law enforcement agencies.
In State ex rel. Myers v. Meyers, et al., Slip Opinion No. 22-1915, the Supreme Court of Ohio considered the scope of an incident report under the Public Records Act. Specifically, it addressed the issue of whether an incident report (which is a public record) is limited to the form that police officers fill out in order to report an incident or whether it also includes contemporaneous reports created by the investigating officers that document their observations (narrative) and the statements of witnesses at the scene.
In Meyers, a local newspaper made public records requests for incident reports in “open investigations.” The Chillicothe police denied the requests, stating that the information sought was exempt from the definition of a public record as “specific investigatory work product.” As explained by the police chief, a supplemental narrative contains the personal notes of an investigating officer regarding the incident, summarize witness and victim interviews, and evaluates the alleged offense. According to the chief, as long as the investigation into a case is open, the Department considers the supplemental narratives investigatory work product exempt from the Public Records Act.
The Supreme Court noted that in a prior decision it found “offense and incident reports” are not specific investigatory work product and must be released as public records. The Court stated the most important factor in determining whether supplemental narratives are part of an incident report is “timing,” including the initial observations by the officers and initial witness statements taken at the physical location close to the time the incident occurred. The Court held “…that when a police department maintains both incident report form and investigatory work product as part of the same overall investigatory record, Officers’ reports that contain their observations at the time that they are responding to an incident, along with initial witness statements taken at the time of the incident or immediately thereafter, are incident-report information that is a public record and may not be withheld from disclosure as “specific investigatory work product”….”
Summary. The preferred method of obtaining discovery is Crim. R. 16. The state must go beyond what is in its file to learn of exculpatory evidence and disclose such evidence if discovered. The Public Records Act can be utilized in a pending criminal case as an independent basis for obtaining information relevant to a criminal proceeding. Crim. R. 16 does not preclude an accused from obtaining public records from law enforcement agencies. If intuition, instincts and experience lead us to believe that information helpful to the defense exists beyond what has been provided in discovery, perseverance will help us to obtain it.