"Open Discovery" in Ohio

"Open discovery" is essentially full disclosure of all evidence, reports, etc., between opposing parties in a legal action. In civil matters it's one story and pretty much matter of fact, but that's not the case in criminal cases where there's been debate between the factions for more than a decade. Prosecutors concerned with the safety of victims & witnesses want restraint, while defense attorneys demand disclosure citing circumstance when innocent defendants have been found guilty and convicted.

Jenny Roberts, then an acting assistant professor of law at the New York University School of Law, in a 2004 Fordham Urban Law Journal article, wrote that, then, "about one-third of the sates had relatively broad discovery rules or statutes modeled after ABA standards. But another dozen follow the highly restrictive federal rule which is premised in part on the idea that a defendant should not be entitled to witness names or statements for pretrial investigation, but rather only for cross-examination purposes should the case get to that stage."

The ABA endorsed "expanded" discovery in 1994, and Florida, the first state to do so, has had open discovery rules since 1968. New Jersey's discover laws are said to be some of the most liberal in the country. "Perhaps the strongest argument in favor of open discovery," a Cleveland Plain Dealer article last year said, "was that no place that has gone with the practice has ever gone back to the ways of secrecy."

Ohio? The current rule governing what evidence must be shared between attorneys in a criminal case, Rule 16, allows prosecuting attorneys to withhold certain police reports & witness statements. That may be about to change.

The Ohio Prosecuting Attorneys Association and Ohio Association of Criminal Defense Lawyers on May 1st. announced they had a mutually-arrived at proposal to reform Rule 16 ready for Supreme Court consideration. A copy of that draft is apparently unavailable at present, but the Justice Project, a non-profit, nonpartisan group, posted their model & recommendations in 2006 in their publication, "Expanded Discovery in Criminal Cases: A Policy Review." The Ohio Public Defenders’ Office has their proposal and addition information on their website.

The Supreme Court’s Rules of Practice & Procedures committee is said reviewing Rule 16 and expected to make its recommendation by fall.

This, however, isn’t the first time the Ohio Supreme Court’s looked at open discovery. It first proposed and filed amendments to Rule 16 with the General Assembly back in 1996, but that was withdrawn because it appeared as though they were going to be voted down anyway, according to a recent Toledo Blade article. The rules & procedure commission again in 2006 fashioned rule changes, but after opening that proposal for public comment it too eventually died without ever making it to the floor in Columbus.

Has open discovery’s time come to Ohio? Chief Justice Thomas Moyer told a press conference last month that more than 30 counties in the state already have some form of open file, open records policy. Late last year Cuyahoga County, one of those more vehemently in opposition to the expanded measures, adopted open discovery rules, its prosecutor’s office launching a new web-based case-management database that allows defense lawyers view, print, and download witness statements, police reports, and other documentation early this year. (Articles Here and Here; Cuyahoga’s new rule Here).

….. and on May 5th. a concurrent resolution was introduced and referred to the Senate Judiciary and Criminal Justice committees “requesting the Supreme Court to amend the Ohio Rules of Criminal Procedure to provide for open discovery.”