October 30, 2013
Discovery

by Justice Paul E. Pfeifer

In Ohio’s criminal justice system there are a set of rules – called the Rules of Criminal Procedure – that govern the process of criminal trials. One of those, Criminal Rule 16, pertains to the discovery process. It states: “This rule is to provide all parties in a criminal case with the information necessary for a full and fair adjudication of the facts, to protect the integrity of the justice system and the rights of defendants, and to protect the well-being of witnesses, victims, and society at large.”

All of the duties and remedies of the rule “apply to the defense and the prosecution equally, and are intended to be reciprocal. Once discovery is initiated by demand of the defendant, all parties have a continuing duty to supplement their disclosures.”

Ohio also has a law known as the Public Records Act, which allows individuals to request public records from the government. Both Criminal Rule 16 and the Public Records Act were the focus of a case that recently came before us here – at the Ohio Supreme Court.

The case involved a man named Gary Athon who was arrested by an Ohio State Highway Patrol officer on December 20, 2010. Athon was charged with operating a motor vehicle while under the influence of alcohol, speeding, and failing to reinstate his driver’s license. He pleaded not guilty to the charges.

Rather than participating in discovery in accordance with Criminal Rule 16, Athon’s attorney, Steven Adams, asked another attorney, Christopher Finney, to obtain evidence related to Athon’s arrest by making a public records request.

Finney sent a letter to the Highway Patrol requesting all the records relevant to Athon’s arrest. The Highway Patrol provided Finney with the records, and Finney then delivered the records to Adams.

On March 21, the state filed a motion with the trial court to compel Athon to provide discovery – in other words, the state wanted the court to order Athon to provide it with all records he had pertaining to the case. The state asserted that the public records request made by Finney amounted to a demand for discovery. And, because Criminal Rule 16 requires a reciprocal duty of disclosure, the state argued that a public records request should also trigger a disclosure duty upon Athon.

The trial court determined that Finney had obtained public records related to Athon’s arrest at the “request of a straw person” and then provided them to Athon. It therefore ordered Athon to provide discovery to the state, because the request was, in effect, “a demand for discovery on the State of Ohio.”

Athon filed an appeal, and the court of appeals reversed the trial court, concluding that 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” the same as a demand for discovery. The court of appeals said that “such a request does not trigger a defendant’s duty of disclosure” under Criminal Rule 16.

After that, the case came before us for a final review. In 1994, our court confronted “the continuing and ever-increasing problem” of the Public Records Act being used “as a vehicle to obtain records from law enforcement officials…in pending criminal cases.” In that 1994 case we noted that some had used the Act to obtain information not subject to discovery and to bring about interminable delay in their prosecutions.

In that case, we recognized that the Public Records Act permits anyone to obtain public records, regardless of purpose, but we held that in a criminal proceeding, a defendant may use only Criminal Rule 16 to obtain discovery.

As we reiterated, “the 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.”

In Athon’s case, our court concluded – by a four-to-three vote – that neither the Public Records Act nor Criminal Rule 16 precludes an accused from seeking public records that are relevant to a criminal proceeding. However, the majority concluded, the Public Records Act is neither a substitute for nor an alternative to criminal discovery conducted in accordance with Criminal Rule 16.

Therefore, according to the majority, 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.

I joined Justices Sharon L. Kennedy and William M. O’Neill in casting dissenting votes. In her dissent, Justice Kennedy wrote that she would have affirmed the judgment of the court of appeals, which held that the plain meaning of Criminal Rule 16 and the Public Records Act supports the defense claim that a public-records request is not a demand for discovery.

Criminal Rule 16 contains only one requirement: that all parties supplement their discovery disclosure. That requirement is not triggered until the defense makes a demand for discovery.

Nothing in the rule supports the majority’s holding that a “public records request is the equivalent of a defendant’s demand for discovery,” and that a reciprocal duty of disclosure should arise in accordance with Criminal Rule 16.

According to Justice Kennedy, any amendments to Criminal Rule 16 should be made “through our rule-making authority” in accordance with the Ohio Constitution. She concluded by encouraging “the Commission on the Rules of Practice and Procedure to review the effects of Criminal Rule 16 and recommend necessary changes to it after careful study, and this court should amend the rule, if necessary, after public comment.”

Nevertheless, the majority determined that because Athon obtained discoverable information from the Highway Patrol through a public records request, he is obligated to provide reciprocal discovery to the state in accordance with Criminal Rule 16. Thus, the judgment of the court of appeals was reversed.

EDITOR'S NOTE: The case referred to is State v. Athon, 136 Ohio St.3d 43, 2013-Ohio-1956. Case No. 2012-0268. Decided May 15, 2013. Majority opinion written by Justice Terrence O'Donnell.