Pretrial Discovery in a criminal case is a process, not a document or package of documents. Many lawyers fail to explain this to their clients.
As a result, clients charged with felony crimes frequently ask us this question: “Where is my Motion for Discovery?”
The expectation is that the prosecutor has given us all the discovery material to which the client is entitled by simply handing us a nicely labeled package of pretrial discovery materials, and saying, “here’s your discovery.”
These clients have heard somewhere that the package handed to us by the prosecution is labeled “Motion for Discovery.” Hence, they ask: “Where’s my Motion for Discovery?”
Unfortunately, nothing could be further from the truth. Pretrial discovery in a felony criminal case is a process, not a document. And a Motion for Discovery (properly called “Demand for Discovery”) is a document filed by the attorney for the accused that simply starts this process.
The reason clients ask about pretrial discovery is because they realize it is critical to find out what evidence the prosecutor has to support their case. Our clients know that if the prosecution’s evidence is weak, or can be easily attacked, then the State may be unable to meet their burden of proof and therefore unable to obtain a conviction. That’s why the discovery process is so critically important.
Also, our clients know that access to the State’s evidence often provides focus for the defense investigation.
In short, obtaining pretrial discovery of, and access to, all the evidence to which an accused person and his or her lawyer are entitled is a critical component to building and presenting a winning defense.
However, the sad fact is that obtaining the pretrial discovery to which you are entitled can be not just a battle, but a series of battles, and even a war.
To understand why, you need to understand the specific provisions of the Ohio Rules of Criminal Procedure, the Ohio Revised Code, and the Ohio and U.S. Constitutions that govern an accused’s right to pretrial discovery and access to evidence. Here’s what you need to know.
The Right to, and Fight for, Pretrial Discovery in Columbus, Ohio
The Fifth and Fourteenth Amendments require the prosecuting attorney to disclose specific types of evidence to the accused in order to protect his or her right to a “fair trial.” In Ohio, the prosecuting attorney is also required by Rules 7(E); 12(E); and 16 of the Ohio Rules of Criminal Procedure to disclose, upon request, additional types of evidence. Here’s what those provisions say and how they work.
Rule 7(E) of the Ohio Rules of Criminal Procedure – Request for a Bill of Particulars.
Rule 7(E) of the Ohio Rules of Criminal Procedure says that upon written request by the accused the prosecuting attorney shall provide the accused with a bill of particulars setting forth the specifics of the conduct alleged to have occurred. The purpose of a bill of particulars is to disclose information material to a defendant’s ability to “prepare and present a defense.” This can be especially necessary, for example, for an accused to be able to prepare an alibi defense, when a specific time of day can be provided.
Here is an example of information we sought through a bill of particulars in a Columbus shooting case:
1. The exact time of day or night when the acts charged, including the discharge of the handgun, were alleged to have been committed by the accused;
2. The specific place where the offense, including the alleged discharge of the handgun, was alleged to have been committed, including, (a)the street address and location within building or on property, and (b) the specific location where the handgun was alleged to have been discharged;
3. The specific location where the handgun was alleged to have been discovered, relative to both the location and the position of the accused; and
4. The names of all persons, not identified in the indictment, who were present when the offense was alleged to have been committed.
Importantly, a request for a bill of particulars must be made by the accused within 21 days after arraignment unless the court orders otherwise.
Rule 12(E) of the Ohio Rules of Criminal Procedure – Request for Notice of Intent to Use Evidence
Rule 12(E)(2) provides a method by which an accused in Columbus may learn of the prosecutor’s intention to use evidence that might be subject to a pretrial motion to suppress. An accused is permitted to file a Request for Notice of Intent to use evidence at trial. Importantly, this request must be made by the accused at “arraignment, or as soon thereafter as is practicable.” Often this request may be a simple formality, but it may be necessary if defense counsel needs to file an otherwise tardy motion to suppress regarding evidence that was previously undisclosed. This can be important because Rule 12(D) requires motions to suppress to be filed within 35 days after arraignment, unless otherwise ordered by the Court.
Rule 16(B), (I), and (K) of the Ohio Rules of Criminal Procedure – Demand for Discovery
Rule 16 of the Ohio Rules of Criminal Procedure provides that upon written demand for discovery by counsel for the accused the prosecuting attorney shall provide the following:
1. Rule 16(B)(1). Statements of Defendant or Co-Defendant. This includes written or recorded statement or statements made by the Defendant or Co-Defendant, including police summaries of such statements, and including grand jury testimony by either the Defendant or Co-Defendant, or copies thereof; and any written summaries of any oral statements, or copies thereof, made by the Defendant or the Co-Defendant to a Prosecuting Attorney or a law enforcement officer which are available to or within the possession, custody, or control of the State, the existence of which are known or may by the exercise of due diligence become known, to the Prosecuting Attorney or are reasonably available to the State.
2. Rule 16(I). Witness List. This includes a written witness list, including names and addresses of any witness the State intends to call in its case-in-chief, or reasonably anticipates calling in rebuttal or surrebuttal.
3. Rule 16(B)(7). Written or Recorded Statements. This includes any written or recorded statement by a witness in the State’s case-in-chief, or that it reasonably anticipates calling as a witness in rebuttal.
4. Rule 16(B)(6). Police Reports. This includes all reports from peace officers, the Ohio State Highway Patrol, and state and federal law enforcement agents involved in the investigation.
5. Rule 16(B)(3). Documents and Tangible Objects. This includes copies or photographs of all laboratory or hospital reports, books, papers, documents, photographs, tangible objects, buildings or places, or copies or portions thereof, available to or within the possession, custody, or control of the State, which are material to the preparation of the defense, or are intended for use by the Prosecuting Attorney as evidence at trial, or which were obtained from or belonged to Defendant, or are reasonably available to the State.
6. Rule 16(B)(4). Results of Examination and Tests. This includes copies or photographs of any results or reports of physical or mental examinations and any scientific experiments or tests made in connection with this particular case which are available to or within the possession, custody or control of the State, the existence of which are known or may by the exercise of due diligence become known to the prosecuting attorney, or are reasonably available to the State. We also demand the State to include a written description of all testing methods of used.
We make specific inquiry about each type of scientific test we suspect may have been performed. Depending on the case, this may include:
(a) alcohol testing;
(b) drug testing, procedures, and results;
(c) latent fingerprint identification and comparison;
(d) handwriting identification examinations and results;
(e) voice identification testing and comparisons;
(f) eyewitness identification procedures and results from line-ups, photo-arrays, show-ups, and other procedures;
(g) firearm and tool-mark tests or examinations;
(h) DNA typing and analysis;
(i) non-DNA testing of bodily fluids such as blood typing, or urine, sweat, and semen examinations;
(j) chemical testing;
(k) engineering testing;
(l) clinical and forensic medical testing;
(m) psychiatric testing;
(o) memory and suggestibility testing;
(p) actuarial predictions;
(q) pathology examinations and tests;
(r) toxicology testing and reports;
(s) computer analysis;
(t) bullet lead analysis;
(u) bitemark identification;
(v) fire and arson investigation, examinations, and testing; and
(w) polygraph (lie detector) examinations.
7. Rule 16(B)(2). Criminal Records. This includes all criminal records of the Defendant, a Co-Defendant, and the record of prior convictions that could be admissible under Rule 609 of the Ohio Rules of Evidence of a witness in the state’s case-in-chief, or that it reasonably anticipates calling as a witness in rebuttal.
8. Rule 16(K). Expert Witnesses; Reports. This includes copies of any written reports summarizing the expert witness’s testimony, findings, analysis, conclusions, or opinion, including a summary of the expert’s qualifications. This Rule applies to both the prosecution and the accused, and requires each expert witness for each side to prepare a written report “summarizing the expert witness’s testimony, findings, analysis, conclusions, or opinion, and shall include a summary of the expert’s qualifications.” All expert witness reports are required to be disclosed to opposing counsel no later than 21 days prior to trial.
9. Rule 16(B)(5). Evidence Favorable to the Defendant. This includes all evidence known, or which may become known, to the Prosecuting Attorney favorable to Defendant, and material either to guilt or punishment.
Section 2925.51(E) of the Ohio Revised Code – Request for Untainted Representative Sample
Section 2925.51(E) of the Ohio Revised Code requires the prosecution to preserve, upon written demand, a portion of the alleged controlled substance that is the basis of the criminal charge for independent analysis.
If the Request is timely filed, then the prosecuting attorney must provide the sample to an independent analyst employed by the accused not later than 14 days prior to trial. This can often cause difficulties for the prosecution that can give the accused some leverage in defending the case. In conjunction with this Request, our law firm regularly files – pursuant to R.C. Section 2925.51(C)- a companion Demand for Testimony Regarding Laboratory Report. Importantly, if this Demand for Lab Testimony is not made within 7 days of the receipt of the State’s Laboratory Report of the alleged controlled substance, then the prosecutor’s Report will be admissible at trial as “prima-facie evidence of the contents, identity, and weight, and the existence and number of unit dosages of the substance” tested. Practically speaking, if a Demand for Lab Testimony is not made, then the chemist conducting the testing will not be compelled to testify at the trial of the accused, and therefore not available for cross-examination. This makes it easier for the prosecutor to prove the State’s case, thereby reducing potential bargaining leverage you might otherwise have.
The Prosecutor’s Constitutional Discovery Duties
The Fifth and Fourteenth Amendments to the United States Constitution also require the prosecution to disclose specific types of evidence and information to the accused. The seminal case for this proposition is Brady v. Maryland, 373 U.S. 83 (1963), which held that the due process right to a fair trial requires the prosecution to disclose evidence favorable to the accused that is material either to guilt or punishment. Criminal defense attorneys commonly refer to this type of evidence or information as Brady material.
Disclosure by the State to the accused of all “favorable” evidence and information is constitutionally required by Brady even without a request by the accused. However, it is best for defense counsel to file a supplemental Brady demand detailing specific categories of favorable evidence defense counsel suspects may exist because “(w)hen the prosecutor receives a specific and relevant request, the failure to make any response is seldom, if ever, excusable.” United States v. Agurs, 437 U.S. 97, 106 (1976).
Evidence or information is “favorable” to the accused if (1) it tends to support a reasonable doubt about the defendant’s guilt, or (2) if it tends to mitigate punishment.
Our firm tends to classify Brady material in four categories:
(1) Evidence or information that tends to support a reasonable doubt about the actual guilt of the accused. We often focus on favorable eyewitness statements, or portions of otherwise incriminating eyewitness statements such as:
(a) an eyewitness statement that fails to name or identify the accused as a participant in the crime (see Jones v. Jago, 428 F. Supp. 405 (1977), aff’d 578 F.2d 1164 (6th Cir. 1978));
(b) an eyewitness statement containing a description inconsistent with how the accused appears;
(c) statements from an eyewitness that conflict either internally or with another statement from the same witness (see Kyles v. Whitley, 514 U.S. 419, 428-30 and 444-45 (1995);
(d) statements from different eyewitnesses that are inconsistent with each other ( see Kyles v. Whitley, 514 U.S. 419, 444-45 (1995);
(e) eyewitness statements that relate to an inability to obtain a good look of the crime or perpetrator; and
(f) eyewitness statements containing statements or observations that later turned out to be untrue. Also important is forensic or scientific evidence that does not directly incriminate the accused;
(2) Evidence or information that tends to undermine the credibility of government witnesses [See Giglio v. United States, 405 U.S.150 (1972); Alderman v. Zant, 22 F.3d 1541, 1554 (11th Cir. 1994) (prosecution must disclose promises, understandings and agreements with its witnesses as well as any “facts that might motivate a witness in giving testimony”); see generally Michael L. Piccarreta, Jefferson Keenan, “Impeaching a Cooperating Witness,” 49 Federal Lawyer 16 (2002) (collecting types of information that should be produced about a cooperating witness to include payments, any agreements and promises, criminal record, drug and alcohol use, psychiatric reports, reports about uncharged misconduct, prior inconsistent statements, tax returns showing failure to report earnings from cooperation or illegal sources, polygraph tests or the refusal to take them).];
(3) Evidence or information that tends to discredit the quality of the police investigation, such as its “thoroughness and even … good faith,” or its failure to follow established investigative policies or procedures. See Kyles v. Whitley, 534 U.S. 419, 445-46 (1995) (declaring that “(a) common trial tactic of defense lawyers is to discredit the caliber of the investigation or the decision to charge the defendant, and we may consider such use in assessing a possible Brady violation.”); Lindsey v. King, 769 F.2d 1034, 1042 (5th Cir 1985)(awarding new trial of prisoner convicted because withheld Brady evidence “carried within it the potential … for the … discrediting … of the police methods employed n assembling the case”); and United States v. Howell, 231 F.3d 615 (9th Cir 2000) (information that may seem inculpatory on its face no way diminishes the government’s duty to disclose evidence of a flawed investigation that could be used to discredit the caliber of the investigation); and
(4) Evidence or information that tends to mitigate the punishment. [See United States v. Severson, 3 F.3d 1005, 1013 (7th Cir. 1993) (“Brady applies to sentencing”).]
Importantly, the prosecutor’s obligations under Brady extend beyond searching his or her own file. Prosecutors have an affirmative duty to learn about and disclose any favorable or impeachment evidence or information known to all law enforcement agents, including all police officers and detectives involved in the investigation. In other words, the prosecutor assigned to the case “has a duty to learn of any favorable evidence known to the others acting on the government’s behalf in the case, including the police.” Kyles v. Whitley, 514 U.S. 419, 437 (1995). Also see Youngblood v. West Virginia, 547 U.S. 867, 869-70 (2006); and Crivens v. Roth, 172 F.3d 991, 997-98 (7th Cir. 1999).
When evaluating post-trial whether a Brady violation occurred, a violation will only be found if the favorable suppressed information or evidence was material to the outcome of the case. When making this determination about materiality, a court is required to assess the evidence and information “collectively, not item-by item.” Kyles v. Whitley, 534 U.S. 419, 436 (1995). However, it is critically important to realize that the Supreme Court introduced the standard of materiality in the context of appeals, where it is possible to evaluate the significance of the suppressed evidence against the totality of the trial evidence. No one can make this evaluation before trial. The prosecutor cannot predict with certainty how his own evidence will go in, much less the defense side of the case. As a result, there cannot be any reliable pre-trial assessment of what impact undisclosed evidence and information will have on the case as a whole. Thus, in the pretrial setting, Brady requires the government to disclose any information “‘favorable to the accused’ without regard to whether the failure to disclose it likely would affect the outcome of the upcoming trial.’” United States v. Safavian, 233 F.R.D. 12, 2005 U.S. Dist LEXIS 34982, at *15 (D.D.C. Dec 23, 2005) (citing United States v. Sudikoff, 36 F. Supp. 2d 1196, 1198-990 (C.D. Cal. 1999).
In other words, prosecutors cannot be permitted to look at the case pretrial through the end of the telescope an appellate court would use post-trial. That is because prosecutors cannot be expected to be prescient, and any such judgment would necessarily be speculative on so many matters that simply are unknown and unknowable before a trial begins. The government, then, must always produce any potentially exculpatory or otherwise favorable evidence without regard to how the withholding of such evidence might be viewed with the benefit of hindsight, as affecting the outcome of the trial.
Importantly, information is favorable to the accused if it relates to guilt or punishment and tends to help the defense by either bolstering the defense case or impeaching potential prosecution witnesses. Id. at *15-*16. See also United States v. Acosta, 357 F. Supp. 2d 1228, 1239-40 (D. Nev. 2004); United States v. Price, 566 F.3d 900, at 913-14, (9th Cir. 2009).
Obtaining adequate discovery from the State is an arduous process. Seldom, if ever, does the simple filing of a routine (1) Request for Notice of Intent to Use Evidence, (2) Request for Bill of Particulars, and (3) Rule 16 Discovery Demand result in production by the State of the discovery it is required to produce. In contentious cases, there is an ongoing battle, requiring supplemental discovery demands, motions to compel, and often one or more pretrial conferences or hearings to resolve discovery issues.
If you are accused of a felony crime in Columbus or central Ohio, you need to find a criminal defense lawyer willing to make the fight, to obtain all the pretrial discovery and evidence to which you are entitled. If you would like to contact us for a free initial consultation, dial 614-454-5010 to speak to a Columbus criminal defense attorney who will stand up and fight for you.