For the second time in two months, the Ohio Supreme Court decided a case interpreting the discovery rules that apply to Ohio DUI/OVI cases and criminal cases. A previous post in this blog discussed ‘recent’ changes to the rules for discovery, the exchange of evidence between the prosecution and defense. In March of 2013, the Ohio Supreme Court decided the case of State v. Darmond and addressed how sanctions are to be imposed for violations of the discovery rules. In May of 2013, the Court issued a decision addressing when the obligation of providing discovery is triggered for the defense.
The case is State v. Athon. Athon was charged by the Ohio State Highway Patrol with O.V.I. and other offenses. Athon pled not guilty but did not file a demand for discovery from the prosecution. Instead, an attorney made a request for public records from the Highway Patrol. In his public records request, the attorney requested the ticket, cruiser video, police reports, records regarding the breath testing machine, and the trooper’s permit to operate the breath testing machine. The Highway Patrol provided that lawyer with the requested materials, and that lawyer gave the materials to Athon’s attorney. The prosecution asked the trial judge to compel Athon to provide discovery to the prosecution, arguing that the public records request was essentially the same as a demand for discovery and triggered the defendant’s obligation to provide reciprocal discovery. The trial judge agreed with the prosecution and ordered Athon to provide reciprocal discovery. Athon appealed the trial judge’s order, and the First District Court of Appeals reversed the trial court’s decision. The prosecution appealed that decision to the Ohio Supreme Court.
The Ohio Supreme Court addressed the question of whether a defendant’s public records request triggers a reciprocal duty to provide discovery to the prosecution. The Court cited two parts of Rule 16 of the Ohio Rules of Criminal Procedure. First, the Rule says, “all duties and remedies are subject to a standard of due diligence, apply to the defense and the prosecution equally, and are intended to be reciprocal”. Second, the Rule states, “if the defendant serves a written demand for discovery or any other pleading seeking disclosure of evidence on the prosecuting attorney, a reciprocal duty of disclosure by the defendant arises without further demand by the state”. The Court concluded that, “When an accused directly or indirectly makes a public records request for information that could be obtained from the prosecutor through discovery, the request is the equivalent of a demand for discovery and triggers a duty to provide reciprocal discovery as contemplated by Crim. R. 16.” Accordingly, the Ohio Supreme Court held that Athon is obligated to provide discovery to the prosecution.
On one hand, the Court’s decision is consistent with the Rule’s stated purposes to “provide all parties in a criminal case with the information necessary for a full and fair adjudication of the facts, (and ) to protect the integrity of the justice system and the rights of defendants”. On the other hand, the Court’s decision is inconsistent with the plain language of the Rule. Rule 16 says a defendant has a duty to provide reciprocal discovery “if the defendant serves a written demand for discovery or any other pleading seeking disclosure of evidence on the prosecuting attorney.” Athon did not serve a demand for discovery or any other pleading on the prosecuting attorney, so the Ohio Supreme Court effectively changed language to Rule 16 without going through the rule-amending process. As the dissent in Athon points out, “With today’s holding, the court is bypassing its Commission on the Rules of Practice and Procedure, which engages in extensive committee work. The court then seeks public comment before amending its most important rules.” The Court obtained the appropriate result but arguable not through the appropriate method.