Search for justice could rule the day in Ohio courts under new pact

Something strange is happening in Ohio. The idea of gamesmanship in criminal trials is taking a back seat to civility and the search for justice. The Ohio Association of Criminal Defense Lawyers and the Ohio Prosecuting Attorney Association struck an historic agreement on the exchange of information in preparation for trial. The agreement must now be approved by the Ohio Supreme Court.

Rule 16 of the Ohio Rules of Criminal Procedure provides that prosecutors are not required to turn over reports and witness statements to the defense until a witness has testified at trial, and only after in camera inspection by the court. Although the agreement has not been released to the public, both sides acknowledge that the proposed changes to Rule 16 will require the prosecution to turn over witness statements and reports well in advance of trial or when they become available. In exchange prosecutors will have access to defense witness statements, expert witness findings and reports.

There are limitations. A prosecutor can refuse to turn over information to the defense if there is a reasonable belief that the information could endanger a witness or the victim. The defense has the right to exclude certain information if the defense believes the information to be privileged. Privileged information might include material that is self-incriminating or otherwise barred from use at trial.

Judge’s decision

The agreement also anticipates that the parties will not always agree about the exchange of information and therefore, judges will be empowered to decide what should be exchanged and what information is privileged.

The proposed rule is not unlike existing “discovery” rules in the civil courts. In a lot of ways a civil trial is a choreographed presentation where there are few surprises. This effort by prosecutors and defense attorneys will help reduce some surprises in Ohio criminal courtrooms.

However, criminal trials will always have some element of surprise. Unfortunately, a substantial majority of people who witness criminal activity do not do so with clean hands. Someone who witnesses a shooting outside a crack house at 3 a.m. is usually up to something sinister. However, in the civil realm, a witness to an afternoon automobile accident is not nearly as likely to be engaged in some illegal conduct at the time of the accident.

A number of Ohio’s 88 counties already engage in informal “open discovery” with regard to criminal trials. The proposed rule change would make the exchange of information universal throughout the state. This effort will also help restore some confidence in the criminal justice system. There have been a number of high profile cases in Ohio that have resulted in exoneration after it was discovered that prosecutors withheld crucial information from the defense:

UWalter Smith was convicted of rape in 1984. He alleged that prosecutors withheld favorable evidence from his lawyers. He was exonerated by DNA evidence in 1996 and awarded $250,000 for wrongful imprisonment in 2001.

UDale Johnson was convicted of murder in 1984. The conviction was overturned by the Ohio Supreme Court because the prosecution withheld exculpatory evidence from the defense.

UDerrick Johnson was convicted of murder in 1985. Twenty years later the charges were dismissed when it was revealed that prosecutors withheld critical eyewitness statements and other evidence from the defense.

Ian Fleming, president of the Ohio Association of Criminal Defense Lawyers told the Cleveland Plain Dealer, “We firmly believe that this rule will best serve the citizens of Ohio ... It affords the defendants fair process while it protect the members of society.”

X Matthew T. Mangino is the former district attorney of Lawrence County, where he adhered to “open file” discovery, which allowed defendants access to anything in the office file except attorney work product which is not discoverable in civil or criminal court. He is a featured columnist for the Pennsylvania Law Weekly. Visit his blog at www.mattmangino.com.