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Rule 16 Columbus Dispatch Article

Proposal to Ohio high court
Attorneys modify rule for sharing trial documents

Tuesday, May 5, 2009 3:14 AM
By Bruce Cadwallader


Police summaries and witness statements that make up the crux of most criminal trials will flow more freely to the defense table if a tentative agreement by attorneys is approved by the Ohio Supreme Court.

The changes to what is known as Rule 16 would allow defense attorneys the right to inspect the documents before a trial. In exchange, prosecutors would have access to most defense-witness statements and expert reports.

A draft of an agreement between the Ohio Association of Criminal Defense Lawyers and the Ohio Prosecuting Attorneys Association will be presented to a Supreme Court rules committee, which could recommend changes.

The quid pro quo exchange of information in Ohio courtrooms has become more commonplace but is not universal, according to representatives for both associations.

Franklin County Prosecutor Ron O'Brien said his office routinely shares investigative files with the defense. Prosecutors in Dayton and Cleveland also favor a more "open discovery period," O'Brien said.

To ensure the same access across the state, "there was a common concern that the rule should be updated," he said.

Under the current system, prosecutors control access to the most sensitive reports and witness statements and are not required to hand them over to the defense until a witness testifies. That can leave gaping holes in defense strategy and result in long pauses in trials while the reports are reviewed.

Ian Friedman, president of the defense lawyers group, issued a joint statement with prosecutors on Friday saying the new discovery rule would provide the tools necessary for "a full and fair adjudication of the facts (and) protects the integrity of the justice system, protects the rights of the defendants and protects the well-being of witnesses, victims and society at large."

Rule 16 was adopted in 1973. The debate that resulted in the proposed changes began two years ago.

"It's remarkable that both groups are standing together and requesting a change in the criminal-justice system," Friedman said.

John Murphy, executive director of the prosecutors association, said prosecutors would retain the right to withhold some information about victims or witnesses "if it might endanger their life."

As usual, a judge would mediate any dispute between the parties over an interpretation of the rule on a case-by-case basis, Murphy said.

Neither side released a draft of the agreement, pending Supreme Court approval.

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