Franklin County Criminal Law Casebook
Reproduced with permission from
Allen V. Adair and the Franklin County Public Defender Office

DISCOVERY (ME107)

Also see Grand Jury/Discoverability of grand jury testimony; Public Records; Speedy Trial.

Access to witnesses and exhibits in general

Defendant's and codefendant's statements

Documents, reports, physical and mental examinations test results, recordings, photographs and tangible objects

Witness list

In camera inspection of witness statements after testimony

Records

Criminal record of defendant or witness

Grand jury testimony

Evidence favorable to the defendant

Discovery from the defense

Continuing duty to disclose

Control of discovery and protective orders

Sanctions

Criminal Rule 16 -- Discovery and Inspection.

Juvenile Rule 24 -- Discovery

Access to witnesses and exhibits in general

State v. South, 162 Ohio App. 3d 123, 2005-Ohio-2152 -- State refused to provide a copy of the cruiser video tape to the defense before trial, then used it itself. Defense counsel hoped to have it enhanced in order to find exculpatory information. Reversed. The opinion quotes from Alice in Wonderland.

State v. Iacona 93 Ohio St. 3d 83, 2001-Ohio-1292 -- Paragraph one of the syllabus: "A prosecutor is under a duty imposed by the Due Process Clauses of the Ohio Constitution and the United States Constitution and Juv. R. 24 to disclose to a juvenile respondent all evidence in the state's possession favorable to the juvenile respondent and material either to guilt or punishment that is known at the time of a mandatory bindover hearing held pursuant to R.C. 2151.26 and that may become known to the prosecutor after the bindover."

In re A.M. (2000), 139 Ohio App. 3d 303 -- In the absence of an order limiting discovery pursuant to Juv. R. 24(B), a juvenile facing bindover is entitled to discovery coextensive with the issues bearing on that determination, notwithstanding the possibility that such discovery may be broader than he or she would be entitled to under Crim. R. 16.

State v. Brown, 98 Ohio St. 3d 121, 2002-Ohio-7040 -- Syllabus; "A demand for discovery or a bill of particulars is a tolling event pursuant to R.C. 2945.72(E)."

State v. Palmer, 112 Ohio St. 3d 457, 2007-Ohio-374 -- Syllabus: "(1) The failure of a criminal defendant to respond within a reasonable time to a prosecution request for reciprocal discovery constitutes neglect that tolls the running of speedy-trial time pursuant to R.C. 2945.72(D). (2) The tolling of statutory speedy-trial time based on a defendant's neglect in failing to respond within a reasonable time to a prosecution request for reciprocal discovery is not dependent on the filing of a motion to compel discovery by the prosecution. (Lakewood v. Papadelis (1987), 32 Ohio St. 3d 1, 511 N.E.2d 1138, reaffirmed and followed.) (3) A trial court shall determine the date by which a defendant should reasonably have responded to a reciprocal discovery request based on the totality of the facts and circumstances of the case, including the time established for response by local rule, if applicable."

State v. Kerby, 162 Ohio App. 3d 353, 2005-Ohio-3734 -- Counsel was not prepared to go to trial because discovery had not been completed and he continued to be counsel of record for codefendants. The waiver colloquy with the defendant confused tolling based on the continuance with a general waiver. Ultimately the trial was set well beyond the 90-day limit, with no explanation of further continuances. Because the exchange is construed as amounting to a general waiver of the right to speedy trial, counsel was not ineffective for failure to press for discharge on speedy trial grounds.

State v. Leonard, 157 Ohio App. 3d 653, 2004-Ohio-3323, ¶11-13 -- Crim. R. 17 authorizes a court to issue a subpoena only to compel the attendance of a witness or production of documents at proceedings over which the trial court has jurisdiction. It does not authorize use of subpoenas for production or appearance at the prosecutor's office as a means of discovery. But remedial action is not required when the defendant has not been prejudiced.

State v. Perry (1992), 80 Ohio App. 3d 78, 85 -- "Any discoverable material in the police's possession is considered to be in the possession of the state and must therefore be given to the defendant." Also see State v. Tomblin (1981), 3 Ohio App. 3d 17; State v. Sandlin (1983), 11 Ohio App. 3d 84, 89. State was obliged to disclose all statements of the codefendant, though failure to make timely disclosure of oral statement was found not to have denied the defendant a fair trial.

State v. Parker (1990), 53 Ohio St. 3d 82 -- Defense counsel had requested materials used to identify the defendant but had not realized a tape which had been made available on discovery was the basis for an identification. Syllabus: "Crim. R. 16(B) does not require the prosecution to disclose to the defendant the significance to the prosecution of the information sought to be discovered by the defendant. The rule only requires the prosecution to disclose, and to permit the defendant to obtain, the information sought."

State v. Zeh (1987), 31 Ohio St. 3d 99 -- Syllabus: "(1) Generally, a prosecution witness for the state has the right to refuse an extra-judicial, pre-trial interview, deposition, or examination by an agent of the defendant. (2) When the mental condition of the victim-potential witness is a contested, essential element of the crime charged, the defense may move the court that the state be barred from utilizing evidence of such mental condition obtained in a clinical interview of the witness prior to trial, unless such witness voluntarily agrees to a court-appointed, independent examination with the results being made available to both sides."

State ex rel. WDTN-TV-7 v. Lowe (1997), 77 Ohio St. 3d 350 -- Syllabus: "Information that a criminal prosecutor has disclosed to the defendant for discovery purposes pursuant to Crim. R. 16 is not thereby subject to release as a 'public record' pursuant to R.C. 149.43."

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State v. Glander (2000), 139 Ohio App. 3d 490 -- Defendant was found guilty of criminal damaging based on throwing a rock at the windshield of a car driven by one of several youths who had been harassing residents along a rural road. Defendant had asked a deputy if the complaint was made by the person who in fact was the driver of the car. This was omitted from material provided in discovery, but the deputy was allowed to testify and the prosecutor argued this indicated consciousness of guilt. Appellant denied making the statement. Reversed. Omission was inexplicable and disclosure would have benefited the defense in preparing for trial.

State v. Moore (1988), 40 Ohio St. 3d 63 -- Syllabus: "Pursuant to Crim. R. 16(B)(1)(a)(i), a defendant is entitled to discovery of relevant written or recorded statements made by him, and it is not within the province of the state to determine, and then to provide, only that which the state believes to be relevant to the defense."

State v. Callihan (1992), 80 Ohio App. 3d 184, 192-195 -- Both a defendant's written and oral statements are subject to disclosure.

State v. Hall (1976), 48 Ohio St. 2d 325 -- A defendant's Miranda waiver form is a statement of the defendant which must be furnished on discovery.

State v. Hayes (November 24, 1978), Franklin Co. App. No. 78AP-263, unreported (1978 Opinions 3225, 3242-3243) -- The defendant's statements include the personal history form completed for all persons charged with an offense.

State v. Gooden (1983), 16 Ohio App. 3d 153 -- Unrecorded oral statements by the defendant to a police officer are subject to discovery.

State v. DeLeon (1991), 76 Ohio App. 3d 68, 77-78 -- It was error to allow the prosecutor to introduce the defendant's oral statement to a police officer after it had not been furnished in discovery. The fact that the statement had not been recorded did not relieve the state of its duty to provide the statement: "The police and prosecutor may not subvert this requirement by the expedient of not making a note."

State v. Tomblin (1981), 3 Ohio App. 3d 17 -- A defendant is entitled to a copy of his statement to the police regardless of whether the prosecution intends to use it at trial. A statement in the actual possession of the police department is in the possession of the prosecutor for purposes of discovery since the police are a part of the state and its prosecutorial machinery.

State v. Soke (1995), 105 Ohio App. 3d 226, 244-246 -- State was not obliged to furnish statements made with regard to an unrelated incident.

State v. Bidnost (1994), 71 Ohio St. 3d 449, 455-458 -- Assistant prosecutor was obligated to furnish, in writing, a written summary of the defendant's oral statement to a police officer, even though the statement was passed on verbally to defense counsel prior to trial.

State v. Lang (1995), 102 Ohio App. 3d 243, 252-253 -- When the prosecution has failed to disclose a statement of the defendant during discovery, the statement should be excluded if (1) the failure to disclose was wilful, (2) foreknowledge of the statement would have benefited the accused in preparing his defense, or (3) the accused was prejudiced by admission of the statement.

State v. Doe (1993), 89 Ohio App. 3d 475 -- Though conceding conflicting authority, court concludes an offhand statement by the defendant to an undercover officer during a drug transaction did not have to be furnished in discovery.

State v. Stewart (1996), 111 Ohio App. 3d 523, 528-529 -- Criminal Rule 16(B)(1)(a)(ii) requires disclosure of statements made to law enforcement officers or prosecutors, but does not reach all state employees, in this case an employee of the Department of Human Services. (Question whether DHS employee might have been acting as an agent of police or prosecutor.)

State v. Parson (1983), 6 Ohio St. 3d 442, 445 -- State was under a duty to disclose the codefendant's oral statement to a law enforcement officer.

State v. Henry (1987), 37 Ohio App. 3d 3, 7 -- A witness is not a codefendant where the grand jury has heard evidence as to his involvement and returned a no bill.

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Documents, reports, physical and mental examinations test results, recordings, photographs and tangible objects

State v. Rivas, 121 Ohio St. 3d 469, 2009-Ohio-1354 – Syllabus: "Pursuant to a Crim. R. 16(B)(1)(c) discovery request, when a prosecutor has provided a written transcript that purports to accurately reflect data stored on a computer hard drive, a court may not order an examination of the computer hard drive unless the defense makes a prima facie showing that the state has provided false, incomplete, adulterated, or spoliated evidence." Reversed State v. Rivas, 172 Ohio App. 3d 473, 2007-Ohio-3593. Defense wanted a mirror image of a hard drive also containing information pertaining to other investigations. Claim seems to have been that rebooting computer might affect files.

State v. Pettway, Cuyahoga App. No. 83528, 2004-Ohio-4499 -- The defense was in possession of the victim's journals, which it sought to introduce at trial. Exclusion was a proper sanction for a discovery violation. Journals were documents subject to pretrial discovery, and not witness statements.

State v. Nguyen, 157 Ohio App. 3d 482, 2004-Ohio-2879 -- Records pertaining to a drug detection dog's training are material and subject to discovery. "Real world" records pertaining to the dog's performance in the field are not material, largely because dogs may alert to residues of drugs no longer present. Opinion extensively discusses cases on the subject from federal courts and courts in other states.

State v. Karl (2001), 142 Ohio App. 3d 800 -- Handwriting expert's report said signature on power of attorney did not appear to be the natural signature of the victim. Prosecutor did not reveal the expert's unreported opinion that the "o" in the signature was consistent with the handwriting of the codefendant. Defense did not open the door to further questioning which adduced this similarity in a manner saving the prosecutor from the consequences of the violation of his duty to disclose.

State v. Benton (2000), 136 Ohio App. 3d 801 -- Knowing that the Highway Patrol video and audiotapes all stops, defense sought tapes through discovery. Tapes are retained for a while, but eventually are recycled, and apparently had been reused by the time of trial. Failure to preserve tapes in light of the discovery motion required dismissal. Arizona v. Youngblood (1988), 486 U.S. 51, California v. Trombetta (1984), 467 U.S. 479 and Columbus v. Forest (1987), 36 Ohio App. 3d 169, followed. Also see State v. Williams, 126 Ohio Misc. 2d 47, 2003-Ohio-7294.

In re Jeter Children, 118 Ohio Misc. 2d 101, 2001-Ohio-4362 -- In termination of parental rights proceedings discovery under Civ. R. 26 entitles the parent to access to original documents. The parent is not required to accept a computer disk depicting such documents.

Beachwood v. Cohen (1986), 29 Ohio App. 3d 226, 230 -- Except as portions may be subject to discovery under specific subsections of Crim. R. 16, Crim. R. 16(B)(2) states that police reports are not discoverable. Also see State v. Smith (1976), 50 Ohio App. 2d 183.

State v. Haddix (1994), 93 Ohio App. 3d 470, 473-474 -- "Crim. R. 16(B) imposes on the prosecutor a duty to disclose certain information upon a proper discovery request. The rule does not distinguish between whether documents are intended to be used by the prosecutor in its case-in-chief or in cross-examination. Accordingly, the state's failure to disclose appellant's income tax returns, despite appellant's proper discovery request, violated Crim. R. 16(B)(1)(c)."

State v. Sandlin (1983), 11 Ohio App. 3d 84 -- Crim. R. 16(B)(1)(c) does not require the prosecution to furnish a photo of the victim when neither the prosecutor, nor her agents are in possession of such a photo.

State v. Goble (1982), 5 Ohio App. 3d 197 -- Common sense investigative work, such as measuring distances and travel times, is not construed as discoverable scientific tests or experiments.

State v. Hunter (1983), 12 Ohio App. 3d 75, 79 -- The state must make available a handwriting exemplar executed by the defendant, regardless of whether a comparison was undertaken or whether the state intends to use the exemplar at trial.

State v. Fricke (1984), 13 Ohio App. 3d 331 -- No abuse of discretion in allowing the introduction of a composite sketch the prosecutor was not aware of until it was mentioned by a witness.

Dayton v. Turner (1984), 14 Ohio App. 3d 304 -- Headnote: "Where materials are subpoenaed from the internal affairs division of a police department, a generalized assertion of privilege on the basis of confidentiality must yield to a demonstrated need for such materials for use as evidence at a criminal trial." Also see Columbus v. Robinson (1986), 33 Ohio App. 3d 151; State v. Bundy (1985), 20 Ohio St. 3d 51.

State v. Davis (1991), 62 Ohio St. 3d 326, 341 -- Polygraph results from the examination of state's witnesses are not among the reports of examination and tests which must be disclosed in discovery. Might be otherwise if were Brady material however.

State v. Dolce (1993), 92 Ohio App. 3d 687 -- "Audit" consisting of notes prepared by defendant's office manager (later granted immunity and called as a prosecution witness) upon a request from his attorney to examine office files, were not discoverable under Crim. R. 16(C)(1) as the report of an examination or test.

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State v. Craft, 149 Ohio App. 3d 176, 2002-Ohio-4481 -- Criminal Rule 16 requires disclosure of witnesses the state intends to call. It does not require disclosure of all witnesses interviewed by the police during their investigation. Trial court abused its discretion in ordering in camera review of witness statements for Brady material absent some showing exculpatory evidence was being withheld.

State v. Karl (2001), 142 Ohio App. 3d 800 -- The state's continuing duty to disclose extended to updated addresses for state's witnesses. Failure to provide address of an out of state witness who could not be subpoenaed in time for trial contributed to reversal.

State v. Parks (1990), 69 Ohio App. 3d 150 -- Error to deny a continuance after the prosecutor had willfully withheld the address of prosecuting witness until the day before trial without seeking a protective order. Error was not cured by the fact that the rape victim refused to talk to defense counsel before trial. Counsel was under a duty to investigate the case and might have interviewed the victims's neighbors or associates.

State v. Watters (1985), 27 Ohio App. 3d 186 -- The prosecutor's witness list must include witnesses who may be called on rebuttal. Also see State v. Parson (1983), 6 Ohio St. 3d 442; State v. Wamsley (1991), 71 Ohio App. 3d 607 -- Should have been disclosed but prejudice was not shown where defense counsel rejected offer of a continuance and vigorously cross-examined the witness.

State v. Abi-Sarkis (1988), 41 Ohio App. 3d 333 -- A court does not err in permitting an unlisted rebuttal witness to testify where the defense has not made a specific request for relief such as a continuance or opportunity to voir dire the witness and conducts a rigorous cross-examination.

State v. Czajka (1995), 101 Ohio App. 3d 564, 571-572 -- Reversal not warranted where before trial defense counsel was orally given name of a witness not on the witness list, and declined offers of additional time to prepare for cross examination.

State v. Wilson (1993), 91 Ohio App. 3d 611 -- Prosecutor dropped witness list in defense counsel's box at 4:53, the day before trial. Over objection state was allowed to call surprise witness who contradicted the defendant's account and whose testimony was central to conviction. Held to have been an abuse of discretion to allow the witness to testify without, at minimum, inquiring into need for a continuance.

State v. Heinish (1990), 50 Ohio St. 3d 231 -- Syllabus: "In the event the state withholds the name and address of a witness, Crim. R. 16(E)(3) provides for the admissibility of the testimony of the witness if it can be shown that the failure to provide discovery was not willful, foreknowledge of the statement would not have benefitted the defendant in the preparation of the defense, and the defendant was not prejudiced by the admission of the evidence."

State v. Linton (December 6, 1994), Franklin Co. App. no. 94APA03-300, unreported (1994 Opinions 5537) -- Though witness had spoken to former prosecutor, name did not appear on witness list and prosecutor trying the case did not learn of the witness until the later stages of trial, at which time defendant was promptly notified. Witness should not have been permitted to testify. Defense had lost the ability to cross-examine other state's witnesses concerning the substance of the witness's testimony and that testimony surprised the defense with information enhancing the state's case.

State v. Gunther (1998), 125 Ohio App. 3d 226, 239 -- Defendant's wife was an alibi witness, her name appeared on the witness list provided by the defense, but she was not called. Court chooses to follow the dissent in State v. Hannah (1978), 54 Ohio St. 2d 84, holding it was not error for the prosecutor to comment on the failure to call an obvious witness.

State v. Hannah (1978), 54 Ohio St. 2d 84, 89-90 -- (1) Prosecutor may not comment on the failure of a listed alibi witness to appear and testify. (2) Ban on comment that a listed witness was not called does not apply to exhibits. Compare State v. Logan (September 26, 1978), Franklin Co. App. No. 78AP-301, unreported (1978 Opinions 2723, 2726-2729).

State v. Knight (October 22, 1981), Franklin Co. App. No. 81AP-257, unreported (1981 Opinions 3265, 3270-3271) -- "The provisions restricting comment in Crim. R. 16 were not intended to abrogate the right to comment generally upon the nonappearance of a witness in an appropriate case, other than upon defendant's failure to testify."

State v. Foster (1982), 8 Ohio App. 3d 338 -- Ban on comment that a listed witness was not called does not apply to an unlisted witness.

State v. Edwards (1976), 49 Ohio St. 2d 31, 43-44 -- Even when prosecutor has adduced references to witnesses not called, court may prevent reference to missing witnesses during argument, since a party may rest whenever it wishes. Also see State v. Jackson (1977), 50 Ohio St. 2d 253, 256-257.

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State v. Miller 148 Ohio App. 3d 103, 2002-Ohio-2389, ¶¶ 25-33 -- Court limits Crim. R. 16(B)(1)(g) to trials. Defendant was not entitled to DEA agent's statement at hearing on motion to suppress.

State v. Daniels (1982), 1 Ohio St. 3d 69 -- Syllabus: "Once the trial court independently determines that a producible out-of-court statement exists, attorneys for all parties, upon the granting of a defendant's timely motion for an in camera inspection of the statement, must be given the opportunity to: (1) inspect the statement personally; and (2) call to the court's attention any perceived inconsistencies between the testimony of the witness and the prior statement. (Crim. R. 16[B][1][g] construed and applied.)"

Columbus v. Bee (1979), 67 Ohio App. 2d 65, 78 -- "An advocate is frequently in a better position than the court to spot such inconsistencies, being much more familiar with the entire case...Thus the advocate is able to intelligently argue the matter prior to the court's ruling."

State v. Ellis (1975), 46 Ohio App. 2d 102 -- A motion for in camera inspection may be made after the conclusion of direct examination or at any time during cross-examination, and it is mandatory that the court grant the motion. Also see Cleveland v. Austin (1978), 55 Ohio App. 2d 216, 223-225; State v. Wilson (1985), 23 Ohio App. 3d 111.

State v. Jenkins (1984), 15 Ohio St. 3d 164, 223-226 -- Portions of a police report setting forth an officer's observations and recollection of events are statements within the meaning of Crim. R. 16(B)(1)(g) and are not exempt from discovery under the general exemption of police reports under Crim. R. 16(B)(2).

State v. Schnipper (1986), 22 Ohio St. 3d 158 -- A motion pursuant to Crim. R. 16(B)(1)(g) is a prerequisite to cross-examination of a witness concerning inconsistencies between testimony and a previous statement.

State v. Johnson (1978), 62 Ohio App. 2d 31, 36-37 -- Statements include both written statements, signed or otherwise adopted or approved by the witness, and witness statements included in police reports: "The true test is whether the statement is the witness' own, rather than the product of the investigator's selections, interpretations and interpolations. It must be shown, unless there is direct evidence the witness prepared, signed or adopted the statement, that it is minimally a continuous, narrative statement made by the witness and recorded verbatim, or nearly so." [Quoting State v. Houston (Iowa 1973), 209 N.W. 2d 42, 46.] Also see State v. Billups (1990), 68 Ohio App. 3d 248. Compare State v. Washington (1978), 56 Ohio App. 2d 129 -- Notes made by police officer during interview are not subject to in camera inspection; State v. Cummings (1985), 23 Ohio App. 3d 40.

State v. Borsick (1978), 62 Ohio App. 2d 39 -- Headnote: "A witness' prior statement otherwise subject to the in camera inspection provisions of Crim. R. 16(B)(1)(g) is not excepted from those provisions on the ground that the statement is the work product of the prosecution."

State v. Hartford (1984), 21 Ohio App. 3d 29 -- Material omissions when comparing previous statements and the testimony of a witness may be inconsistencies, but not every omission is an inconsistency within the meaning of Crim. R. 16(B)(1)(g).

State v. Manning (1991), 74 Ohio App. 3d 19, 28-29 -- It is the duty of the defendant to request that statements the court refuses to inspect, in camera, be made a part of the record. Compare State v. Billingsley (1992), Franklin Co. App. No. 91AP-1299, unreported.

State v. Bunch (1989), 62 Ohio App. 3d 801, 808-810 -- Court was obligated to conduct an in camera inspection of the victim's statements to social workers. Court further erred by preventing the defense from calling the two social workers in question who did not appear on the witness list furnished by the defense, but where the witnesses were known to the state.

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State v. Hart (1988), 57 Ohio App. 3d 4, 5-7 -- Records of a children services agency are discoverable in a criminal case, when they are to be used for a particular aspect of the defense and not merely for a general attack upon the general credibility of the victim.

State v. Black (1991), 75 Ohio App. 3d 667, 673 -- Court erred by not conducting an in camera inspection of victim's medical records to ascertain what, if anything, would have been useful to the defendant in his defense.

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State v. Spikes (1981), 67 Ohio St. 2d 405, 414-415 -- Criminal Rule 16(B)(1)(e) only requires prosecutor to furnish felony records of witnesses. Discovery of other parts of the record of a witness is at the discretion of the court. (Note: Logically any conviction admissible for impeachment purposes under Evid. R. 609 should be disclosed as Brady material.)

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See Grand Jury/Discovery of grand jury testimony

State v. Burroughs, 165 Ohio App. 3d 172, 2005-Ohio-6411 -- Disclosure of grand jury testimony is controlled by Crim. R. 6(E). Though a copy had been prepared at the judge's request, it was error to review it for inconsistencies pursuant to Crim R. 16(B)(1)(g) without first satisfying Rule 6.

State v. Greer (1981), 66 Ohio St. 2d 139 -- Paragraph one of the syllabus: "Disclosure of grand jury testimony, other than that of the defendant and co-defendant, is controlled by Crim. R. 6(E), not by Crim. R. 16(B)(1)(g), and the release of any such testimony for use prior to or during trial is within the discretion of the trial court." Also see State v. Muenick (1985), 26 Ohio App. 3d 3.

State v. Stojetz (1999), 84 Ohio St. 3d 452, 459 -- Crim. R. 16(B)(1)(a)(iii) requires the disclosure of grand jury testimony by codefendants, but not that of co-conspirators absent demonstration of a particularized need.

State v. Myers (1994), 92 Ohio App. 3d 750 -- Applying Polikoff v. Adam (1993), 67 Ohio St. 3d 100, the prosecutor may not take an interlocutory appeal from an order that grand jury minutes be disclosed to the defense.

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Youngblood v. West Virginia (2006), 126 S.Ct. 2188 -- A highway patrol investigator was shown a note suggesting that the defendant was innocent, but he suggested that it be destroyed. The note was never shown to the prosecutor, but it was located by a defense investigator following conviction. Outlining prior precedent, this presents a viable Brady claim. Brady reaches materials that might be used to impeach. Remanded for the West Virginia courts to weigh the constitutional claims.

State v. Brown, 115 Ohio St. 3d 55, 2007-Ohio-4837 -- In a capital case the prosecutor's file was sealed for purposes of appellate review. It was found to include statements casting suspicion elsewhere which should have been furnished in discovery. Combined with an ineffective assistance of counsel claim relating to the competence of a key witness, confidence in the verdicts and death sentence was so undermined that a new trial is ordered.

State v. Scheidel, 165 Ohio App. 3d 131, 2006-Ohio-195 -- Nine year old rape victim's reported statement to a deputy indicating there had been no penetration came to light only in the presentence investigation. Whether or not this amounted to a "statement" of the victim subject to Crim.R. 16(B)(1)(g) review, it should have been disclosed as Brady material. State v. Lindner, Franklin App. No. 01AP-962, 2002-Ohio-5077, distinguished.

State v. Hoop (1999), 134 Ohio App. 3d 627 -- Defendant sought to obtain name of potential exculpatory witness known to investigator retained by counsel for a codefendant. Before trial he asserted he believed such a witness existed, but in a motion for a new trial it was alleged that the investigator had confirmed the existence of such a witness. (1) No in camera hearing was required before trial, but the court erred in refusing to conduct a hearing once the existence of the witness had been confirmed. (2) Claims of Fifth Amendment privilege, attorney-client privilege and work product do not bar the hearing, but are to be addressed at it. Opinion discusses manned in which such claims may be overcome.

State v. Kalejs, 150 Ohio App. 3d 465, 2002-Ohio-6657, ¶16-17 -- The reasonable probability that the outcome would have been different for Brady analysis is less stringent that the standard for granting a new trial based on newly discovered evidence, where it must be shown that the newly discovered evidence would probably have resulted in acquittal.

United States v. Ruiz (2002), 122 S.Ct. 2450 -- In a federal prosecution, fast-track plea bargaining required waiver of the Brady right to exculpatory impeachment evidence. Since such material relates to the fairness of a trial and not the voluntariness of a plea, no Fifth or Sixth Amendment violation found. Government remained obliged to turn over exculpatory evidence relating to factual innocence.

Disciplinary Counsel v. Whren, 99 Ohio St. 3d 222, 2003-Ohio-3288 -- Six month suspended suspension for prosecutor who withheld exculpatory information material to the defense and was deceptive at a pretrial as to whether DNA testing had been completed.

State v. Adams, Trumbull App. No. 2000-T-0149, 2004-Ohio-3510 -- In a capital trial the defense sought a new trial based on prosecutorial misconduct in the form of discovery violations. A copy of the prosecutor's file was made a part of the appellate record under seal. It was not reviewed until after arguments, with the parties then supplying supplemental briefs. Majority affirms. See dissent as to why a new trial should have been allowed.

Brady v. Maryland (1962), 373 U.S. 83, -- As a part of the defendant's due process right to a fair trial, the prosecution is under an obligation to disclose to the defendant any favorable evidence that is material to either guilt or punishment. Also see Jencks v. United States (1956), 353 U.S. 657. For cases on remedies for Brady violations, see United States v. Agurs (1976), 427 U.S. 97; Wagster v. Overberg (6th Cir. 1977), 560 F. 2d 735.

State v. Johnston (1988), 39 Ohio St. 3d 48 -- Paragraph three of the syllabus: "The suppression by the prosecution of evidence favorable to an accused violates due process where the evidence is material either to guilt or to punishment, irrespective of the good or bad faith of the prosecution. (Brady v. Maryland [1962], 373 U.S. 83, followed.)" State had failed to disclose victims might have been killed by a different person in a different location.

State v. Brown (1996), 112 Ohio App. 3d 583, 595 -- Brady said to apply only to material known to the prosecution but not known to the defense until after the trial. See State v. Apanovitch (1996), 113 Ohio App. 3d 591, 594-595 and State v. Aldridge (1997), 120 Ohio App. 3d 122 for more complete discussion of the reach of Brady.

United States v. Bagley (1985), 473 U.S. 667 -- Government failed to disclose contracts with witnesses paid for their assistance. Automatic reversal is not required. For such constitutional error reversal is required only if suppression of the information undermines confidence in the outcome of the trial. The test of materiality is not whether the outcome of the trial would have been different, but rather whether the defendant received a fair trial, understood as one where there is a verdict worthy of confidence. Also see Strickler v. Greene (1999), 527 U.S. 263.

Kyles v. Whitley (1995), 514 U.S. 419 -- State's duty to turn over evidence favorable to the defense extends to material which remained hidden in police files, not turned over to the prosecutor. To warrant reversal, evidence withheld must have been material, meaning that it negates guilt or mitigates the crime to the point that there is a reasonable probability that disclosure would have produced a different result. Also see State v. Hesson (1996), 110 Ohio App. 3d 845, 847-853.

Weatherford v. Bursey (1977), 429 U.S. 545 -- The Due Process Clause does not require the prosecution to reveal before trial the names of undercover agents or others who will testify unfavorably to the defense. There is no constitutional right to discovery.

Wood v. Bartholomew (1995), 516 U.S. 1 -- Opinion somewhat cryptically addresses when the fact that a prosecution witness took a polygraph test must be disclosed as Brady material. Procedural context makes opinion of little use at the initial trial stage. In post conviction proceedings, focus is upon likely use counsel would have made of information.

United States v. Johnson (8th Cir. 1981), 649 F. 2d 617, 618 -- "Due process is violated when the prosecutor, although not soliciting false evidence from a government witness, allows it to stand uncorrected when it appears. That the false testimony goes only to the credibility of the witness does not weaken this rule."

State v. Khong (1985), 29 Ohio App. 3d 19 -- Read pages 21-24 for a prosecutor's view of what is relevant and favorable.

State v. Roughton (1999), 132 Ohio App. 3d 268 -- In a case replete with instances of prosecutorial misconduct, sole basis for reversal is failure to provide potentially exculpatory evidence in the form of slides showing nucleated cells. Even though trial court had excluded all DNA evidence from trial, material might have proven exculpatory.

State v. Hill (March 25, 1982), Franklin Co. App. No. 81AP-663, unreported (1982 Opinions 665, 670) -- The fact that a witness had been hypnotized in an effort to assist their recollection is discoverable as either evidence favorable to the defendant or as the result of a physical or mental examination.

State v. Walden (1984), 19 Ohio App. 3d 141 -- Headnote 4: "If the prosecution, prior to or during trial, knows of the existence of exculpatory evidence and fails to provide it to defense counsel despite a request for production of all exculpatory evidence, this prosecutorial misconduct amounts to a denial of due process sufficient to support an R.C. 2953.21 petition for relief after judgment."

State v. Resch (1997), 124 Ohio App. 3d 694 -- Defendant was entitled to a hearing on his postconviction petition where Brady material withheld included (1) report DNA markers were not present; (2) statements of neighbors to the crime scene; and (3) agreement in plea bargain not to prosecute the mother of a codefendant.

State v. Palicki (1994), 99 Ohio App. 3d 143 -- Defendant was indicted for perjury after his testimony at a suppression hearing was contradicted by a videotape of the search obtained from the Highway Patrol. Held that the tape did not have to be suppressed because it had not been turned over to the defense as Brady material. Opinion does not address whether disclosure was required to the extent the tape constituted the prior statement of the defendant.

State v. Sutorius (1997), 122 Ohio App. 3d 1, 11-12 -- Though the trial court erroneously failed to review the state's file of witness statements and notes taken during interviews for Brady material, that file was sealed and examined by the court of appeals, remedying the error as no additional exculpatory material was found.

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Taylor v. Illinois (1987), 484 U.S. 400 -- While the Compulsory Process Clause of the Sixth Amendment generally should prevent the entire exclusion of testimony by defense witnesses as a discovery sanction, exclusion may be warranted if the violations are willful and calculated either to obtain a tactical advantage, or to conceal a plan to present fabricated testimony.

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For additional cases see Sanctions below.

State v. Wilson (1987), 30 Ohio St. 99 -- Lab test results provided on discovery appeared favorable for the defense, but additional information obtained when prosecutor interviewed forensic expert indicated otherwise. Prosecutor was under an obligation to pass this on to the defendant. (For suggested sanctions see below.)

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State v. Green (2000), 90 Ohio St. 3d 352, 367 -- It is error for judge to sit on a three-judge panel in a capital case after he has determined a Crim. R. 16(B)(1)(e) certification that the name of a witness be withheld in discovery.

Everage v. Elk & Elk, 159 Ohio App. 3d 220, 2004-Ohio-6186 -- Gov. Bar. R. V(11)(E) makes all documents relating to review and investigation of grievances private unless waived by the respondent attorney. Such documents may not be reached through discovery. Disciplinary proceedings become public only when certified by a probable cause panel.

State v. Gillard (1988), 40 Ohio St. 3d 226 -- When pursuant to Crim. R. 16(B)(1)(e) the state seeks either to withhold the names of potential witnesses, or to perpetuate their testimony, the judge disposing of the motion may not be the same judge who will conduct the trial as disclosure of the basis for the prosecutor's request would tend to prejudice the judge against the defendant. Also see State V. Esparza (1996), 74 Ohio St. 3d 660. (Gillard decided on state grounds and not as a matter of constitutional law, thus error may be harmless.)

State v. Owens (1975), 51 Ohio App. 2d 132, 146-147 -- In camera hearing conducted where the prosecutor states the reasons why the name of witness should be withheld should be on the record, to preserve the issue for appellate review. No error here since record shows defense counsel knew of the witness and the nature of her testimony.

State v. Williams (1986), 23 Ohio St. 3d 16, 18 -- Certification by the prosecutor that a witness might be subject to physical or economic coercion or harm if their identity is disclosed must be specific as to why this is the case. On appeal, the defendant must demonstrate how the defense was hindered by the failure to disclose the identity of the witness.

State v. Daniels (1993), 92 Ohio App. 3d 473 -- Names and addresses of 24 prospective prosecution witnesses were properly withheld in an aggravated murder prosecution, based upon the execution style slaying of an arson victim who was a witness against members of a gang said to be involved in drug distribution. Hearing was properly conducted in front of a judge other than the trial judge. The defense was not prejudiced since the witnesses ultimately were present at trial and subject to cross-examination. No confrontation violation found.

In re Jones (1998), 132 Ohio App. 3d 173 -- Defense counsel obtained a copy of a 911 tape, but prosecutor failed to do so before the tapes were routinely destroyed. Defense counsel refused to turn tape over upon request in discovery, and was found in contempt. Since she did not intend to use tape, she was not required to turn it over. Contempt finding reversed. Question remains whether tape could have been obtained through subpoena.

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Sanctions

State v. Geeslin, 116 Ohio St. 3d 252, 2007-Ohio-5239 – Highway Patrol officer accidentally (?) erased portion of videotape from cruiser which showed defendant‘s driving that provided claimed basis for the stop. Trial court dismissed charges. Syllabus: "Unless a defendant can show that the state acted in bad faith, the state‘s failure to preserve potentially useful evidence does not violate a defendant‘s due process rights. (Arizona v. Youngblood (1988), 488 U.S. 51, 109 S.Ct. 51, 102 L.Ed.2d 281, followed.) Court is of the view the erased portion would only have been used to challenge the justification for the stop. Portions showing field sobriety testing were still available. Dissent notes the officer watched the tape on his home VCR.

State v. Johnson, 169 Ohio App. 3d 552, 2006-Ohio-6227 -- Charge was dismissed because the prosecutor didn't furnish bank statements until the day before trial. This sanction was too severe. Speedy trial had been waived and a short continuance would have been appropriate. Dissent supports trial judge's reliance on the six month limit for disposition of cases set forth in the rules of superintendence.

State v. Engle, 166 Ohio App. 3d 262, 2006-Ohio-1884 -- Prosecutor failed to hand over recording of a drug buy. Ultimately charges were dismissed as a sanction, but without first allowing the prosecutor an opportunity to respond. Court concludes less severe sanctions were not adequately weighed. Concurring judge notes that lenient treatment of prosecutorial negligence and misconduct has not encouraged greater professionalism. ¶17: "An occasional dismissal or other serious sanction for persistent or gross prosecutorial misconduct would surely grab the attention of conscientious prosecutors, resulting in more professional behavior. For less scrupulous prosecutors it could alter election results."

State v. Benton (2000), 136 Ohio App. 3d 801 -- Knowing that the Highway Patrol video and audiotapes all stops, defense sought tapes through discovery. Tapes are retained for a while, but eventually are recycled, and apparently had been reused by the time of trial. Failure to preserve tapes in light of the discovery motion required dismissal. Arizona v. Youngblood (1988), 488 U.S. 51, California v. Trombetta (1984), 467 U.S. 479 and Columbus v. Forest (1987), 36 Ohio App. 3d 169, followed. Also see State v. Williams, 126 Ohio Misc. 2d 47, 2003-Ohio-7294. Compare State v. Harrison, 161 Ohio App. 3d 573, 2005-Ohio-2983 where the officer claimed the tape had run out before the stop. Thus the court could not conclude erasing the tape was in bad faith or that the contents were potentially helpful to the defense.

State v. Miller, 161 Ohio App. 3d 145, 2005-Ohio-2516 -- Defense sought tape of arrest in discovery. Prosecutor authorized viewing but the tape turned out to have been destroyed. DUI charge was dismissed as a sanction for a discovery violation. Reversed. Court should have held an evidentiary hearing to address timing of events and whether the prosecutor acted in bad faith.

Columbus v. Barnes, Franklin App. Nos. 03AP-44 and 45, 2003-Ohio-4678 -- Defense provided a witness list on the Friday before a Monday trial date. On motion of the prosecutor, the court excluded testimony by all defense witnesses. (1) Since the prosecutor had not requested discovery, there was no violation of Crim. R. 16(A). (2) Even if sanctions were permitted, exclusion was too severe. It would have been reasonable to permit a brief delay to allow time for the prosecutor to interview the witnesses.

State v. Weimer, Darke App. No. C.A. 1586, 2002-Ohio-7099 -- State belatedly provided defendant's videotaped statement and a narrative supplement to the tape. Dismissal was improper. Judge acknowledged prosecutor's failure was not wilful and that dismissal was a more severe sanction than warranted, but mistakenly believed time for a speedy trial had expired.

State v. Benson, 152 Ohio App. 3d 495, 2003-Ohio-1944 -- Due process rights were violated when the tape from a cruiser mounted camera was destroyed following a discovery request. Defense maintained field sobriety testing would have been favorable.

State v. Wolf, 154 Ohio App. 3d 293, 2003-Ohio-4885 -- Accidental destruction of tape from a cruiser mounted camera was not a violation of due process. After the first pretrial it was ascertained that after the tape had been shown to other officers it was rewound to the beginning and placed back in the cruiser.

Illinois v. Fisher (2004), 124 S.Ct. 1200 -- Defendant charged with possession of cocaine filed a discovery motion. Trial was delayed ten years after he absconded, during which time the drug was destroyed in accordance with routine policy. Defendant claimed this violated due process. Arizona v. Youngblood (1988), 488 U.S. 51 requires a showing bad faith in order to establish a due process violation, even when there has been a discovery request. Nor is there an exception to Youngblood when the contested evidence provides a defendant's "only hope for exoneration."

State v. Crosby, Lucas App. No. L-03-1158, 2004-Ohio-4674 -- During a suppression hearing an officer testified as to a statement of the defendant not disclosed in discovery. Continuance request was denied. Trial court abused its discretion by permitting the state to use that statement to impeach the defendant's testimony. Without the benefit of the statement the defendant could not knowingly and intelligently decide whether to take the stand and place his credibility at issue.

Lakewood v. Papadelis (1987), 32 Ohio St. 3d 1 -- Syllabus: "(1) The filing of a motion to compel discovery is not a prerequisite to the trial court's imposing sanctions pursuant to Crim. R. 16. (State v. Hicks [1976], 48 Ohio App. 2d 135...,disapproved.) (2) A trial court must inquire into the circumstances surrounding a discovery rule violation and, when deciding whether to impose a sanction, must impose the least severe sanction that is consistent with the purpose of the rules of discovery." Defendant had failed to provide reciprocal discovery. Trial court excluded all defense witnesses. While court may in some instances exclude testimony by defense witnesses, suggested that this must be tempered by recognition of right to present a defense. Also see State v. Harcourt (1988), 46 Ohio App. 3d 52; State v. Bunch (1989), 62 Ohio App. 3d 801, 808-810 (witnesses were know to the state). Compare State v. Norman (1982), 7 Ohio App. 3d 17, 21.

State v. Wilson (1987), 30 Ohio St. 99 -- Prosecutor violated continuing duty to disclose by failing to pass on information explaining a lab report which on its face appeared favorable for the defense. Court found that strategy adopted was trial by ambush. Since the damage had been done by the time the defendant was in a position to object, striking the testimony would not have been an effective remedy and a mistrial should have been declared. Opinion indicates that had the defendant been in a position to object before the testimony was introduced, remedy would have been exclusion, since belated disclosure had compromised defense preparations for and conduct of trial. New trial ordered.

State v. Parson (1983), 6 Ohio St. 3d 442 -- Syllabus: "Where, in a criminal trial, the prosecution fails to comply with Crim. R. 16(B)(1)(a)(ii) by informing the accused of an oral statement made by a co-defendant to a law enforcement officer, and the record does not demonstrate (1) that the prosecution's failure do disclose was a willful violation of Crim. R. 16, (2) that foreknowledge of the statement would have benefited the accused in the preparation of his defense, or (3) that the accused was prejudiced by admission of the statement, the trial court does not abuse its discretion under Crim. R. 16(E)(3) by permitting such evidence to be admitted." (Note: Use of or means defendant need not prove all three.) Compare State v. Finnerty (1989), 45 Ohio St. 3d 104, 108 where it is concluded state could not reasonably have expected to be able to call rebuttal witness, and State v. Abi-Sarkis (1988), 41 Ohio App. 3d 333 where the defense did not made a specific request for relief such as a continuance or opportunity to voir dire the witness and conducted a rigorous cross-examination.

State v. Edwards (1993). 86 Ohio App. 3d 550 -- When imposing sanctions against prosecutors for discovery violations, courts should impose the least severe sanction consistent with the purpose of the discovery rule. Lakewood v. Papadelis (1987), 32 Ohio St. 3d 1, applied. Also see State v. Horton (1993), 90 Ohio App. 3d 157.

State v. Harris (1998), 127 Ohio App. 3d 626 -- Dismissal is available as a sanction for a discovery violation by the prosecution.

State v. Hancock (1990), 67 Ohio App. 3d 328 -- Trial court did not abuse its discretion by dismissing indictment after prosecutor failed to obey order that identity of informant be disclosed. Prosecutor was unable to do so because police refused to tell him who the informant was.

State v. Watters (1985), 27 Ohio App. 3d 186 -- Defendant has demonstrated that belated disclosure was prejudicial where the prosecutor had failed to disclose letters from two of defendant's fellow prison inmates stating he had confessed to the crime he was being tried for, and where these inmates were called as rebuttal witnesses by the prosecution.

State v. Smith (1986), 34 Ohio App. 3d 180, 187-189 -- New trial ordered where prosecutor did not provide the names of four witnesses until a few days before trial and names of the rest on the first day of trial, notwithstanding timely request and motion in limine hearing where failure to provide witness list was the basis. Brief continuance would not have been an effective remedy and any doubts as to the importance of the testimony must be resolved in favor of the defendant, since the prosecutor thought they were important enough to be called.

State v. Wilmoth (1995), 104 Ohio App. 3d 539 -- Defense counsel spoke with a key witness the day before trial and immediately furnished name to prosecutor. Error to bar testimony as a discovery sanction.

State v. Amburgey (1993), 86 Ohio App. 3d 635 -- Before barring the testimony of a belatedly disclosed defense witness, the court should have conducted a hearing addressed to the circumstances surrounding any violation of Crim. R. 16, and to consider whether lesser sanctions would accomplish the purpose of the discovery rules.

State v. Terry (1998), 130 Ohio App. 3d 253 -- State disclosed intended use of photos and a videotape depicting the route of a car chase four days before trial, then called an undisclosed witness in relation to the tape. Defense was refused a continuance. Reversed. At p. 258: "Expecting testimony from an undisclosed witness relating to an unexpected exhibit defies reason. While Terry may very well have expected more surprises from the state, the late disclosure of one state exhibit can hardly provide a basis to excuse the complete nondisclosure of a witness testifying thereto."

State v. Shade (1996), 11 Ohio App. 3d 565 -- Error to bar the testimony of a chain of custody witness disclosed by prosecutor the day before trial began. Though court noted pattern of omitting witnesses from lists provided on discovery, it did not find omission here was willful.

State v. Eubank (1987), 38 Ohio App. 141 -- As to remedy when a violation is discovered after trial and raised in a motion for a new trial, headnote 1 states: "When a defendant raises a claim that the prosecutor failed to disclose evidence relevant to the defendant's defense, 'the prosecutor will not have violated his constitutional duty unless his omission is of sufficient significance to result in the denial of the defendant's right to a fair trial.' (United States v. Bagley (1985), 473 U.S. 667, applied.)"

State, ex rel. Corrigan, v. Griffin (1984), 14 Ohio St. 3d 26 -- Prosecutor may not use a prohibition action to obtain relief from trial judge's order enforcing discovery. Appeal pursuant to R.C. 2945.67 provides an adequate remedy at law. Also see State, ex rel. Lighttiser, v. Spahr (1985), 18 Ohio St. 3d 234.

State v. Dixon (1984), 14 Ohio App. 3d 396 -- A court's allowance of a nolle prosequi based on insufficient evidence, following sanctions against the prosecutor for failure to provide discovery, can not be entered with prejudice unless there has been a deprivation of the defendant's constitutional or statutory rights, the violation of which, in and of itself, bars further prosecution.

State v. Khong (1985), 29 Ohio App. 3d 19 -- A prosecutor may be found in contempt for failure to comply with a discovery order.

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