Tuesday, December 23, 2008

Ohio Supreme Court Public Access Rules

The Ohio Supreme Court yesterday announced adoption of its rules regarding public access to court records— its first formal policy guiding what court records the public can and cannot see, according to the Toledo Blade—ending, or at least putting on hold for a time, a debate reaching back some six years or more that initial addressed privacy matters & identity theft concerns as more courts began making records available on the Internet. ( Court’s Announcement )

Cleveland lawyer David Marburger told the Blade that the rules were not as problematic as those proposed a year ago, but that they still set a bad precedent. “It opens the way for broad swaths of closed court records,” he said. “The court assumes it has the authority to adopt these rules and amend them later to identify a record solely based on its content that should automatically be kept out of the public domain even if no litigant in a case asks that the record be closed.” Marburger questions the Court’s authority, in the first place, to issue general rules he says go beyond administrative housekeeping to affect litigants’ substantive rights.

Amendments proposing the new rules were submitted after some two years of work and research by the Commission on the Rules of Superintendence, which makes recommendations to the Supreme Court regarding the rules that govern all Ohio courts.

Language for the rules, the Court said, was based in part on the report and recommendations of the Privacy and Public Access Subcommittee of the Supreme Court’s Advisory Committee on Technology and the Courts, a subcommittee that included members of the public and the media. Rules include:

  • Definitions of court record, case document, administrative document, case file and other terms.

  • A process for the sealing of court records. The court can consider whether to allow limited public access to a case document or information in a case document upon request by a party to the case or a person who is the subject of information in the case document only after finding by clear and convincing evidence that the presumption of public access is outweighed by a higher interest.

  • A process by which any person may request access to a case document or information in a case document that has been granted limited public access. Currently when an entire record is sealed, no part of the record is accessible to the public, nor can it be petitioned to be accessible.

  • A provision requiring the partial redaction or omission of personal identifiers, i.e. personal information that might contribute to identity theft, from a case document before the document is submitted to a court or filed with a clerk of court. The rules also state that a court or a clerk of court may provide a form for the recording of personal identifiers omitted from a case document. The court, clerk of court and parties would continue to have full access to this information.

The Court will instruct local court personnel next year in the intricacies familiarizing them with the public access rules.

Rules become effective May 1st. 2009

Monday, December 15, 2008

New Ohio Jury Instructions

Sometimes announcements get overlooked or are not widely spread around, even though of importance to many people. In case you missed it…..

Ohio Jury Instructions (OJI) were reorganized by the Ohio Judicial Conference back in November to simplify their use by judges and practitioners. LexisNexis was required to provide a complete OJI database with updated numbering of all instructions to WestLaw and Casemaker for their online versions. (See Notice)

In the new revision, Volume 1 ''General Instructions'' has been eliminated, and the applicable general instructions included in the civil and criminal volumes. There is one civil volume, now organized by general subject matter areas, and one criminal volume. There are, however, still three binders. The criminal volume will now be comprised of two binders with a separate tab for ''Traffic'' offenses.

The numbering of all instructions has also been revised and simplified. Instructions will now be identified as ''CV''(Civil) and ''CR''(Criminal). For example, current 4 OJI 503.01, dealing with Aggravated Murder, becomes CR 503.01. A ''Correlation Table'' will be included in each volume containing previous and new section numbers. Both volumes have newly designed, slightly larger loose-leaf binders. The format of individual instructions has not changed.

Jury instructions, while perhaps being one of the jurisprudence’s lesser celebrated entities-- behind all of the rules, statutes, and case law—none the less can serve lawyers and judges by providing insight into matters now before them, especially when current conditions or circumstances are more novel or usual.

Black’s Law Dictionary describes model jury instructions as “directions or guidelines a judge gives a jury concerning the legal aspects of a case, usually approved by the state’s bar or similar group.” Put another way, Indiana’s Third District Court of Appeals in 2005 said “the purpose of an instruction is to inform the jury of the law applicable to the facts of a case without misleading it and to enable it to comprehend the case clearly so it can arrive at a just, fair, and correct verdict.” ( Case )

“Standardized” or “model” instructions to a jury were first attempted in Ohio in 1922, but it wasn’t until 1958 that Ohio Jury Instructions were published and privately circulated by the Ohio Common Pleas Judges Association. In 1960, a “Standard Civil Outline—Negligence” was released, followed by a companion criminal outline in 1962. Ohio Jury Instructions have been since been revised four times.

Jury instructions in Ohio are codified in ORC 2945.10 and 2945.11. Civil Rule 51, Criminal Rule 30, and Jury Standard 16 also pertain to jury instructions. [“Ohio Trial Court Jury Use & Management Standards” in “Appendix B” of Ohio Rules of
Superintendence” @ http://www.sconet.state.oh.us/Rules/superintendence/Superintendence.pdf ]