A Public Records Request is no Longer a Vehicle to Avoid Reciprocal Discovery

Ohio Criminal Rule 16 is the normal means by which a party can obtain information about Public recordstheir case from the prosecutor. Using Criminal Rule 16, a Defendant can obtain detailed documentation relating to their arrest, preliminary field tests, chemical test administration, witnesses, etc. But if the defendant does use this process, they do have the duty of reciprocal discovery. They must disclose to the prosecutor information and documents they intend to use at time of trial, including their witness list and experts.

A number of attorneys and defendants have attempted to avoid this reciprocal requirement by using O.R.C., 149.43, Ohio’s Public Records statute. This statute does not have the reciprocal requirement of Criminal Rules 16. Therefore, by making a pubic records request, defendants have avoided disclosing their defense witnesses, etc. to the prosecution.

A recent Ohio Supreme Court case put an end to that practice. In the case of State v. Athon, 2013 Ohio 1956, the defendant made a public records request, including any and all video and audio recordings from the Police cruiser, any and all Impaired Driving Reports drafted and/or printed by the arresting officer for the day in questions, any and all citations issued by the arresting officer, and a copy of the Operator’s Certificate for the officer administering the breathalyzer test.

The state provided these documents and then requested reciprocal discovery from the defendant. The defendant refused and the state moved to compel the defendant to submit to the state’s discovery request. The trial court denied the motion stating, “a public records request by a criminal defendant, or on behalf of a criminal defendant, seeking public records pertaining to his or her pending criminal case is not tantamount to a demand for discovery. Such a request does not trigger a defendant’s duty of disclosure under Crim.R. 16(H).” 2012 Ohio 765. The appellate court agreed with the lower court, explained that because [the state] had never served a “written demand or other pleading on the prosecuting attorney seeking discovery,” he owed no duty to provide discovery to the state.”

The Supreme Court disagreed. The court started its analysis by stating, “As we reiterated in State v. Palmer, 112 Ohio St.3d 457, 2007 Ohio 374, 860 N.E.2d 1011, ‘[t]he philosophy of the Criminal Rules is to remove the element of gamesmanship from a trial.’ The purpose of discovery rules is to prevent surprise and the secreting of evidence favorable to one party. The overall purpose is to produce a fair trial.’ ” Id. at ¶ 18, quoting Lakewood v. Papadelis, 32 Ohio St.3d 1, 3, 511 N.E.2d 1138 (1987), quoting State v. Howard, 56 Ohio St.2d 328, 333, 383 N.E.2d 912 (1978).”

The court concluded, “Neither R.C. 149.43 nor Crim.R. 16 precludes an accused from seeking public records that are relevant to a criminal proceeding. However, the Public Records Act is neither a substitute for nor an alternative to criminal discovery conducted pursuant to Crim.R. 16. Accordingly, when an accused directly or indirectly makes a public records request for information that could have been obtained from the state through discovery, the public records request is the equivalent of a demand for discovery and the accused owes a reciprocal duty of disclosure to the state as contemplated by Crim.R. 16.”

Therefore, a defendant can not hide behind Ohio’s Public Records statute to avoid providing discovery information to the state.

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