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									                 PROPOSED AMENDMENTS TO THE
        OHIO RULES OF OHIO RULES OF APPELLATE PROCEDURE
                    AND CRIMINAL PROCEDURE

        Comments requested: The Supreme Court of Ohio will accept public comments
until March 9, 2010 on the following proposed amendments to the Ohio Rules of
Appellate Procedure (14, 15, 25, 26, and 43) and the Ohio Rules of Criminal Procedure
(12, 16, 41, and 59).

        Comments on the proposed amendments must be submitted in writing to Jo Ellen
Cline, Government Relations Counsel, Supreme Court of Ohio, 65 South Front Street, 7th
Floor, Columbus, Ohio 43215-3431 or j.cline@sc.ohio.gov and received no later than
March 9, 2010. Please include your full name and regular mailing address in any
comment submitted by e- mail. Copies of all comments submitted will be provided to
each member of the Commission on the Rules of Practice and Procedure and each justice
of the Supreme Court.

        The proposed amendments were recommended to the Supreme Court by the
Supreme Court Commission on the Rules of Practice and Procedure and initially were
published for comment on October 19, 2009. After reviewing the comments received,
the Commission recommended further revisions to the previously published amendments.
After considering the written comments and the recommendations of the Commission,
the Supreme Court adopted the proposed amendments and directed that the amendments
be filed with the General Assembly and republished for public comment.

       Pursuant to Article IV, Section 5(B) of the Ohio Co nstitution, the proposed
amendments were filed with the General Assembly on January 14, 2010. The
Commission on the Rules of Practice and Procedure and the Supreme Court will consider
all comments received during this second comment period, and the Court may modify or
withdraw proposed amendments prior to May 1, 2010. The amendments filed with the
General Assembly and not withdrawn prior to May 1, 2010 will take effect on July 1,
2010, unless prior to that date the General Assembly adopts a concurrent resolution of
disapproval.

        A Staff Note prepared by the Commission on the Rules of Practice and Procedure
follows each amendment. Although the Supreme Court uses the Staff Notes during its
consideration of proposed amendments, the Staff Notes are not adopted by the Court and
are not a part of the rule. As such, the Staff Notes represent the views of the Commission
on the Rules of Practice and Procedure and not necessarily those of the Supreme Court.
The Staff Notes are not filed with the General Assembly but are included when the
proposed amendments are published for comment and are made available to the public
and to legislative committees.

       Following is a summary of the proposed amendments. In addition to the
substantive amendments, nonsubstantive grammar and gender-neutral language changes
are made throughout any rule that is proposed for amendment.
Appellate Rules 14, 15, 25, and 26 [En Banc Consideration]

        Rules 14, 15, 25, and 26 of the Rules of Appellate Procedure are revised to
implement a process for courts of appeals to follow when sitting en banc. In McFadden v.
Cleveland State Univ., 120 Ohio St.3d 54, 2008-Ohio-4914, 896 N.E.2d 672, the Court
held that “if the judges of a court of appeals determine that two or more decisions of the
court on which they sit are in conflict, they must convene en banc to resolve the conflict.”
Id., paragraph two of the syllabus. The proposed amendments envision a process whereby
an application for rehearing en banc is considered by the court of appeals at the same
time as an application for reconsideration.
        Proposed amendments to App. R. 26 permit a party to seek en banc consideration
using a process similar to that used for an application for reconsideration. (See App. R.
26(A)(2)). The proposed amendments allow a court of appeals to determine sua sponte
that an intra-district conflict exists and to consider a case en banc, or a party may make an
application for en banc consideration identifying an intra-conflict on a dispositive issue.
Timing of the application for en banc consideration coincides with the application for
reconsideration. If a party applies for both en banc consideration and for reconsideration,
the proposed amendments require that the request be presented in the same document.
        Amendments are proposed to several other rules in order to account for the new
application for consideration en banc. The proposed amendments to App. R. 14
accommodate the proposed change in App. R. 26. Appellate Rule 25(A) is amended to
permit a party to file a motion to certify a conflict within 10 days of a judgment that first
creates a conflict with another court of appeals, even if that conflict first arises after the
court issues its initial opinion (e.g., in connection with a ruling on an application for
rehearing or for consideration en banc); this is a revision to the rule amendment
previously published. Proposed amendments to App. R. 25(B) provide that the time to
respond to a motion to certify a conflict runs for the date of service, not the date of filing,
to ensure that a responding party has a full ten days to respond even if the party does not
receive the motion the day it is filed. The proposed amendments also clarify any
ambiguity over whether a party can file a reply in support of the motion under App. R.
15(A). A corresponding amendment to App. R. 15(A) is made to clarify that a reply in
further support of a motion may be filed within seven days of response in opposition.
        Revisions to the rules published previously, in addition to the addition to the
proposed amendments to App. R. 25 referenced above, relate to the entry of judgment on
appeal. The Court has declined to submit the proposed amendments to App. R. 22 and 30
previously published. Instead, a Staff Note indicates that the Commission anticipates the
Supreme Court Rules of Practice will be amended to toll the time to file an appeal to the
Supreme Court when a timely motion for reconsideration or en banc consideration is
filed.

Criminal Rule 16

       Criminal Rule 16 is rewritten to provide a system o f more open discovery in
criminal cases. The Ohio Prosecuting Attorneys Association and the Ohio Association of
Criminal Defense Lawyers have agreed to the proposed language of the rule and have
crafted committee notes that were adopted by the Commission o n the Rules of Practice
and Procedure with some modifications.
          Proposed Crim. R. 16(B) sets forth the information that is subject to disclosure,
including witness statements and police reports. Division (C) of the proposed rule allows
the prosecuting attorney to designate any material under division (B) or (F) (discussed
below) as “counsel only”, meaning that only defense counsel and their agents may
actually see the material. Nothing in the proposed rule prohibits defense counsel from
telling the defendant the content of the “counsel only” material. This provision is
designed to protect a witness or victim from being confronted, and potentially harassed or
intimidated, by the defendant with a physical copy of their statement.
          Division (D) of the proposed rule allows the prosecutor discretion to not disclose
material otherwise discoverable upon a certification that the nondisclosure is for one of
the reasons enumerated in the rule. This certification of nondisclosure can be reviewed by
the court upon motion of the defendant. The designation of “counsel only” or
nondisclosure is reviewed on an abuse of discretion standard. (See proposed Crim. R.
16(F)). If the court finds the prosecutor abused their discretion in not disclosing material
or in designating material as “counsel only”, the court may order disclosure, grant a
continuance, or any other appropriate relief. If the court orders disclosure of non-
disclosed material, the material is considered “counsel only” under division (C). The
prosecutor is given the ability to file an interlocutory appeal of the trial court’s finding.
(See proposed amendment to Crim. R. 12(K), below).
          The original proposal did not specify when, if ever, the disclosure of material to
the defense in cases where the prosecutor certified the material for nondisclosure under
(D) and the court found no abuse of discretion would occur. A new division (F)(5)
requires that such material be provided to the defendant no later than the commencement
of trial.
          Special provisions are included in proposed Crim. R. 16 regarding sex cases.
Under proposed Crim. R. 16(D)(4) the prosecutor may certify nondisclosure if the
statement is of a child victim of a sexually oriented offense under the age of thirteen. The
original proposal could be read to say that the prosecutor must permit defense counsel to
inspect the statement of a child victim in all cases. A revision to the “as published”
version revises (F)(4) of the rule to clarify that there is an exception in cases where the
safety of the victim is an issue.
          In addition, division (E) allows defense counsel to inspect photographs, results of
examinations or hospital reports related to the indictment in cases of sexual assault;
however, records not related to the indictment are not subject to inspection or disclosure.
The proposed rule also allows the defendant to receive copies of the records related to the
indictment under seal and under protection pursuant to a protective order. A new division
(E)(2) is added to the “as published” version to give sufficient time for an expert to
evaluate a statement of a sexual abuse victim who is less than thirteen years of age and to
permit defense counsel to consult with the expert on the content of the statement. This
process could be frustrated under the original proposal, which provided that if the
prosecutor certifies the statement for nondisclosure under (D)(4), the statement is not
released until seven days before trial under (F)(4). The intent of the revision is to preserve
nondisclosure but to carve out an exception to the nondisclosure procedure sufficient to
permit the expert and defense counsel to effectively evaluate the statement.
        Division (H) of the proposed rule establishes the defendant’s reciprocal duty of
disclosure. The proposed rule, like the current rule, still provides that each party disclose
a witness list and prohibits comment upon the content of the list to the jury. The proposed
rule does, however, allow comment to be made upon the presence or absence of a witness
during argument (See proposed Crim. R. 16(I)). This embraces the ruling of the Court in
State v. Hannah, 54 Ohio St.3d 84 (1978). The proposed rule also incorporates the
current rule’s prohibitions against disclosure of work product and transcripts of grand
jury testimony governed by Crim. R. 6.
        Finally, the proposed rule provides that expert witnesses shall prepare a written
report that must be disclosed no later than twenty-one days prior to trial. If the written
report is not disclosed the expert is precluded from testifying. (Crim. R 16(K)).
        Crim. R. 16(L) is revised from the “as published” version to give the court greater
authority to regulate discovery in cases of a pro se defendant and to address the problems
that could arise if a defendant terminates the employment of defense counsel and then
demands everything in the attorney’s file. The latter situation could frustrate the
protections built into the rule to avoid release of material directly to the defendant in
some cases.

Crim. R. 12(K)

        In order to accommodate the new interlocutory appeal granted under proposed
Crim. R. 16(F)(2) to review a trial court’s ruling on a prosecutor’s non-disclosure of
material, Crim. R. 12(K) is amended. The prosecuting attorney must certify that the
appeal is not taken for purposes of delay and that the disclosure of the material will have
one of the effects noted in Crim. R. 16(D). No revisions from the “as published” version
were made.

Crim. R. 41

        Proposed amendments to Crim. R. 41 permit applications and approvals of search
warrants to be accomplished by electronic means, including facsimile transmission.
Under the current rule search warrants may be issued only on affidavits “sworn to before
a judge” which implies that the affiant and the judge must be in the same room. State v.
Wilmoth (1986), 22 Ohio St.3d 251, 490 N.E.2d 1236 and State v. Shaulis, Wayne App.
No. 01CA0044, 2002-Ohio-759.
        The proposed amendment allows the judge to receive the oath or affirmation over
the telephone and does not require that the proceedings over the “reliable electronic
means” be taped or otherwise transcribed.
        A staff note was added to the “as published” version of the rules to clarify that the
amendment is not intended to lessen the requirement that the judge confirm the identity
of the applying law enforcement officer, that the judge is satisfied that probable cause for
a warrant exists, or that an appropriate record for subsequent review is created.
 1          PROPOSED AMENDMENTS TO THE RULES OF PRACTICE AND
 2                           PROCEDURE
 3
 4                FILED BY THE SUPREME COURT OF OHIO
 5     PURSUANT TO ARTICLE IV, SECTION 5 OF THE OHIO CONSTITUTION
 6
 7                                               ***
 8
 9                      OHIO RULES OF APPELLATE PROCEDURE
10
11                                               ***
12
13   Rule 14.       Computation and Extension of time.
14
15                                               ***
16
17   (B)     Enlarge ment or reduction of time. For good cause shown, the court, upon
18   motion, may enlarge or reduce the time prescribed by these rules or by its order for doing
19   any act, or may permit an act to be done after the expiration of the prescribed time. The
20   court may not enlarge or reduce the time for filing a notice of appeal or a motion to
21   certify pursuant to App. R. 25. Enlargement of time to file an application for to
22   reconsider reconsideration or for en banc consideration pursuant to App. R. 26(A) shall
23   not be granted except on a showing of extraordinary circumstances.
24
25   (C)     Additional time after service by mail.       Whenever a party is required or
26   permitted to do an act within a prescribed period after service of a paper upon him the
27   party and the paper is served by mail, three days shall be added to the prescribed period.
28
29                                               ***
30
31                              Staff Note (July 1, 2010 amendment)
32
33          The amendment is a technical amendment to reflect the procedure in App. R. 26.
34
35                                               ***
36
37   Rule 15.       Motions.
38
39   (A)     Content of motions; response; reply.           Unless another form is prescribed by
40   these rules, an application for an order or other relief shall be made by motion with proof
41   of service on all other parties. The motion shall contain or be accompanied by any matter
42   required by a specific provision of these rules governing such a motion, shall state with
43   particularity the grounds on which it is based, and shall set forth the order or relief
44   sought. If a motion is supported by briefs, affidavits, or other papers, they shall be served
45   and filed with the motion. Except as set forth in Rule 15(B), any Any party may file a
46   response in opposition to a motion other than one for a procedural order [for which see
47   subdivision (B)] within ten days after service of the motion, and any party may file a
48   reply in further support of a motion within seven days after service of the opposition, but
49   motions authorized by Rule 7, Rule 8, and Rule 27 may be acted upon after reasonable
50   notice, and the court may shorten or extend the time for a response or reply responding to
51   any motion.
52
53                                                    ***
54
55   Rule 25.         Motion to certify a conflict.
56
57   (A)      A motion to certify a conflict under Article IV, Section 3(B)(4) of the Ohio
58   Constitution shall be made in writing before no later than ten days after the judgment or
59   order of the court that creates a conflict with a judgment or order of another court of
60   appeals has been approved by the court and filed by the court with the clerk for
61   journalization or within ten days after the announcement of the court’s decision,
62   whichever is the later. The filing of a motion to certify a conflict does not extend the time
63   for filing a notice of appeal in the supreme court. A motion under this rule shall specify
64   the issue proposed for certification and shall cite the judgment or judgments alleged to be
65   in conflict with the judgment of the court in which the motion is filed.
66
67   (B)     Parties opposing the motion must shall answer in writing within ten days after the
68   filing of service of the motion. The moving party may file a reply brief within seven days
69   after service of the answer brief in opposition. Copies of the motion, brief, answer brief in
70   opposition, and opposing briefs, and reply brief shall be served as prescribed for the
71   service and filing of briefs in the initial action. Oral argument of a motion to certify a
72   conflict shall not be permitted except at the request of the court.
73
74   (C)     The court of appeals shall rule upon a motion to certify within sixty days of its
75   filing.
76
77                                                    ***
78
79                                 Staff Note (July 1, 2010 amendment)
80
81             The amendment to division (A) is intended to ensure that the ten-day period for filing a
82   motion to certify a c onflict begins to run at the time the court of appeals first enters a judgment or
83   order that creates an intra-district conflict. Subsequent motion practice under App. R. 26 does not
84   extend that ten-day period if the conflict was already present in t he court’s original judgment. On
85   the other hand, the ten days begin to run with the entry of a judgment or order ruling on an
86   application for reconsideration or en banc consideration under App. R. 26(A ) if t he intra-district
87   conflict first arises in the court’s ruling on that application.
88
89            The amendment to division (B ) ensures a responding party’s full ten-day response
90   period, even if that party does not receive t he motion on the day it is filed. B ecause the ten -day
91   response period now begins to run from the date of service, a party served by m ail now has an
92   extra three days to file an opposition. See App. R. 14(C). The amendment to division (B) also
93   permits the moving party a reply in support of the motion within seven days of service of the
94   opposition; this clarification avoids any ambiguity about the right to file a reply in support of a
95   motion under App. R. 15(A).
96
 97                                             ***
 98
 99   Rule 26.            Application for reconsideration; Application for en banc
100                       consideration; application Application for reopening.
101
102   (A)   Application for reconside ration and en banc consideration.
103
104         (1)    Reconsideration
105
106                (a)     Application for reconsideration of any cause or motion submitted
107                on appeal shall be made in writing before the judgment or order of the
108                court has been approved by the court and filed by the court with the clerk
109                for journalization or within ten days after of the announcement of the
110                court’s decision, whichever is later. The filing of an application for
111                reconsideration shall not extend the time for filing a notice of appeal in the
112                Supreme Court unless such an extension is provided for by the Supreme
113                Court Rules of Practice.
114
115                (b)    Parties opposing the application shall answer in writing within ten
116                days after the filing of service of the application. The party making the
117                application may file a reply brief within seven days of service of the
118                answer brief in opposition. Copies of the application, answer brief in
119                opposition, and reply brief, and opposing briefs shall be served in the
120                manner prescribed for the service and filing of briefs in the initial action.
121                Oral argument of an application for reconsideration shall not be permitted
122                except at the request of the court.
123
124                (c)     The application for reconsideration shall be considered by the
125                panel that issued the original decision.
126
127         (2)    En banc consideration
128
129                (a)     Upon a determination that two or more decisions of the court on
130                which they sit are in conflict, a majority of the court of appeals judges in
131                an appellate district may order that an appeal or other proceeding be
132                considered en banc. The en banc court shall consist of all full- time judges
133                of the appellate district. Consideration en banc is not favored and will not
134                be ordered unless necessary to secure or maintain uniformity of decisions
135                within the district on an issue that is dispositive in the case in which the
136                application is filed.
137
138                (b) A party may make an application for en banc consideration. An
139                application for en banc consideration must explain how the panel’s
140                decision conflicts with a prior panel’s decision on a dispositive issue and
141                why consideration by the court en banc is necessary to secure and
142                maintain uniformity of the court’s decisions.
143
144                   (c)     The rules applicable to applications for reconsideration set forth in
145                   division (A)(1) of this rule, including the timing requirements, govern
146                   applications for en banc consideration. In addition, a party may seek en
147                   banc consideration within ten days of the entry of any judgment or order
148                   of the court ruling on a timely filed application for reconsideration under
149                   division (A)(1) of this rule if an intra-district conflict first arises as a result
150                   of that judgment or order. A party filing both an application for
151                   reconsideration and an application for en banc consideration
152                   simultaneously shall do so in a single document.
153
154                   (d)     The decision of the en banc court shall become the decision of the
155                   court. In the event the en banc court is equally divided in its decision, the
156                   decision of the original panel shall remain the decision of the court.
157
158                    (e)    Other procedures governing the initiation, filing, briefing,
159                   rehearing, reconsideration, and determination of en banc proceedings may
160                   be prescribed by local rule or as otherwise ordered by the court.
161
162   (C) If an application for reconsideration under division (A) of this rule is filed with the
163   court of appeals, the application shall be ruled upon within forty- five days of its filing.
164
165                                                   ***
166
167                                 Staff Note (July 1, 2010 amendment)
168
169            App. R. 26(A ) has now been subdivided into two provisions: App. R. 26(A)(1) governs
170   applications for rec onsideration (former A pp. R. 26(A)), while A pp. R. 26(A)(2) is a new provision
171   governing en banc consideration.
172
173            The amendment to former App. R. 26(A ) (now App. R. 26(A)(1)) cont emplat es a future
174   amendment to the Supreme Court Practice Rules that will extend the time to appeal to the
175   Supreme Court if a party has filed a timely application for reconsideration in the court of appeals.
176   It also ensures a responding party’s full ten-day respons e period, even if t hat party does not
177   receive the application on the day it is filed. Because the t en-day response period now begins to
178   run from the dat e of s ervice, a party served by mail now has an extra three days to file an
179   opposition. See App. R. 14(C). Finally, the amendment permits the moving party a reply in
180   support of the application within seven days of service of th e opposition; this clarification avoids
181   any ambiguity about the right to file a reply in support of a motion under App. R. 15(A).
182
183             The addition of App. R. 26(A)(2) is designed to address the S upreme Court’s decision in
184   McFadden v. Cleveland State Univ., 120 Ohio St.3d 54, 2008-Ohio-4914, 896 N.E.2d 672 and, in
185   particular, the holding that “if the judges of a court of appeals determine that two or more
186   decisions of t he court on whic h they sit are in c onflict, they must convene en banc to resolve the
187   conflict.” Id., paragraph two of the syllabus. The new provision establishes a standard for parties
188   to seek en banc consideration under the same procedures that govern applications for
189   reconsideration under App. R. 26(A)(1), except that a party may also seek consideration en banc
190   within t en days of a judgment or order ruling on an application for reconsideration if that ruling
191   itself creates an intra-district conflict that did not appear from the panel’s original decision. The
192   new provision also allows courts of appeals to establish their own procedures to the extent
193   consistent with the statewide rule.
194
195            Former App. R 26(C), which required courts of appeals to decide applications for
196   reconsideration within 45 days, has been eliminated in anticipation of an amendment to the
197   Supreme Court Rules of Practice that will toll the time to appeal to the Supreme Court if a party
198   has filed a timely application for reconsideration or en banc consideration in the court of appeals.
199
200                                                       ***
201
202   RULE 43.        Effective Date
203
204   (W) Effective date of amendme nts.            The amendments to Rules 14, 15, 25, and 26
205   filed by the Supreme Court with the General Assembly on January 14, 2010 shall take
206   effect on July 1, 2010. They govern all proceedings in actions brought after they take
207   effect and also all further proceedings in actions then pending, except to the extent that
208   their application in a particular action pending when the amendments take effect would
209   not be feasible or would work injustice, in which event the former procedure applies.
210
211                                                       ***
212
213
214                        OHIO RULES OF CRIMINAL PROCEDURE
215
216                                                ***
217
218   RULE 12.       Pleadings and Motions Before Trial: Defenses and Objections
219
220                                                ***
221
222   (K)    When the state takes an appeal as provided by law from an order suppressing or
223   excluding evidence, or from an order directing pretrial disclosure of evidence, the
224   prosecuting attorney shall certify that both of the following apply:
225
226          (1)     the appeal is not taken for the purpose of delay;
227
228          (2)     the ruling on the motion or motions has rendered the state's proof with
229          respect to the pending charge so weak in its entirety that any reasonable
230          possibility of effective prosecution has been destroyed., or the pretrial disclosure
231          of evidence ordered by the court will have one of the effects enumerated in Crim.
232          R. 16(D).
233
234           The appeal from an order suppressing or excluding evidence shall not be allowed
235   unless the notice of appeal and the certification by the prosecuting attorney are filed with
236   the clerk of the trial court within seven days after the date of the entry of the judgment or
237   order granting the motion. Any appeal taken under this rule shall be prosecuted
238   diligently.
239
240           If the defendant previously has not been released, the defendant shall, except in
241   capital cases, be released from custody on his or her the defendant’s own recognizance
242   pending appeal when the prosecuting attorney files the notice of appeal and certification.
243
244          This appeal shall take precedence over all other appeals.
245
246           If an appeal pursuant to this division from an order suppressing or excluding
247   evidence pursuant to this division results in an affirmance of the trial court, the state shall
248   be barred from prosecuting the defendant for the same offense or offenses except upon a
249   showing of newly discovered evidence that the state could not, with reasonable diligence,
250   have discovered before filing of the notice of appeal.
251
252                                                ***
253
254   RULE 16.       Discovery and Inspection
255
256           (A)    Demand for discovery. Upon written request each party shall forthwith
257   provide the discovery herein allowed. Motions for discovery shall certify that demand
258   for discovery has been made and the discovery has not been provided.
259
260          (B)     Disclosure of evidence by the prosecuting attorney.
261
262          (1)     Information subject to disclosure.
263
264           (a)     Statement of defendant or co-defendant. Upon motion of the defendant,
265   the court shall order the prosecuting attorney to permit the defendant to inspect the copy
266   or photograph any of the following which are available to, or within the possession,
267   custody, or control of the state, the existence of which is known or by the exercise of due
268   diligence may become known to the prosecuting attorney:
269
270          (i)     Relevant written or recorded statements made by the defendant or co-
271   defendant, or copies thereof;
272
273          (ii)    Written summaries of any oral statement, or copies thereof, made by the
274   defendant or co-defendant to a prosecuting attorney or any law enforcement officer;
275
276          (iii)   Recorded testimony of the defendant or co-defendant before a grand jury.
277
278           (b)    Defendant's prior record. Upon motion of the defendant the court shall
279   order the prosecuting attorney to furnish defendant a copy of defendant's prior criminal
280   record, which is available to or within the possession, custody or control of the state.
281
282           (c)     Documents and tangible objects. Upon motion of the defendant the
283   court shall order the prosecuting attorney to permit the defendant to inspect and copy or
284   photograph books, papers, documents, photographs, tangible objects, buildings or places,
285   or copies or portions thereof, available to or within the possession, custody or control of
286   the state, and which are material to the preparation of his defense, or are intended for use
287   by the prosecuting attorney as evidence at the trial, or were obtained from or belong to
288   the defendant.
289
290           (d)    Reports of examination and tests. Upon motion of the defendant the
291   court shall order the prosecuting attorney to permit the defendant to inspect and copy or
292   photograph any results or reports of physical or mental examinations, and of scientific
293   tests or experiments, made in connection with the particular case, or copies thereof,
294   available to or within the possession, custody or control of the state, the existence of
295   which is known or by the exercise of due diligence may become known to the
296   prosecuting attorney.
297
298            (e)    Witness names and addresses; record. Upon motion of the defendant,
299   the court shall order the prosecuting attorney to furnish to the defendant a written list of
300   the names and addresses of all witnesses whom the prosecuting attorney intends to call at
301   trial, together with any record of prior felony convictions of any such witness, which
302   record is within the knowledge of the prosecuting attorney. Names and addresses of
303   witnesses shall not be subject to disclosure if the prosecuting attorney certifies to the
304   court that to do so may subject the witness or others to physical or substantial eco nomic
305   harm or coercion. Where a motion for discovery of the names and addresses of witnesses
306   has been made by a defendant, the prosecuting attorney may move the court to perpetuate
307   the testimony of such witnesses in a hearing before the court, in which hearing the
308   defendant shall have the right of cross-examination. A record of the witness' testimony
309   shall be made and shall be admissible at trial as part of the state's case in chief, in the
310   event the witness has become unavailable through no fault of the state.
311
312            (f)   Disclosure of evidence favorable to defendant. Upon motion of the
313   defendant before trial the court shall order the prosecuting attorney to disclose to counsel
314   for the defendant all evidence, known or which may become known to the prosecuting
315   attorney, favorable to the defendant and material either to guilt or punishment. The
316   certification and the perpetuation provisions of subsection (B)(1)(e) apply to this
317   subsection.
318
319           (g)     In came ra inspection of witness' statement. Upon completion of a
320   witness' direct examination at trial, the court on motion of the defendant shall conduct an
321   in camera inspection of the witness' written or recorded statement with the defense
322   attorney and prosecuting attorney present and participating, to determine the existence of
323   inconsistencies, if any, between the testimony of such witness and the prior statement.
324
325           If the court determines that inconsistencies exist, the statement shall be given to
326   the defense attorney for use in cross-examination of the witness as to the inconsistencies.
327
328           If the court determines that inconsistencies do not exist the statement shall not be
329   given to the defense attorney and he shall not be permitted to cross-examine or comment
330   thereon.
331
332          Whenever the defense attorney is not given the entire statement, it shall be
333   preserved in the records of the court to be made available to the appellate court in the
334   event of an appeal.
335
336           (2)     Information not subject to disclosure.             Except as provided in
337   subsections (B)(1)(a), (b), (d), (f), and (g), this rule does not authorize the discovery or
338   inspection of reports, memoranda, or other internal documents made by the prosecuting
339   attorney or his agents in connection with the investigation or prosecution of the case or of
340   statements made by witnesses or prospective witnesses to state agents.
341
342            (3)  Grand jury transcripts. The discovery or inspection of recorded
343   proceedings of a grand jury shall be governed by Rule 6(E) and subsection (B)(1)(a) of
344   this rule.
345
346           (4)   Witness list; no comme nt. The fact that a witness' name is on a list
347   furnished under subsections (B)(1)(b) and (f), and that such witness is not called shall not
348   be commented upon at the trial.
349
350          (C)     Disclosure of evidence by the defendant.
351
352          (1)     Information subject to disclosure.
353
354          (a)     Documents and tangible objects. If on request or motion the defendant
355   obtains discovery under subsection (B)(1)(c), the court shall, upon motion of the
356   prosecuting attorney order the defendant to permit the prosecuting attorney to inspect and
357   copy or photograph books, papers, documents, photographs, tangible objects, or copies or
358   portions thereof, available to or within the possession, custody or control of the defendant
359   and which the defendant intends to introduce in evidence at the trial.
360
361            (b)    Reports of examinations and tests. If on request or motion the
362   defendant obtains discovery under subsection (B)(1)(d), the court shall, upon motion of
363   the prosecuting attorney, order the defendant to permit the prosecuting attorney to inspect
364   and copy or photograph any results or reports of physical or mental examinations and of
365   scientific tests or experiments made in connection with the particular case, or copies
366   thereof, available to or within the possession or control of the defendant, and which the
367   defendant intends to introduce in evidence at the trial, or which were prepared by a
368   witness whom the defendant intends to call at the trial, when such results or reports relate
369   to his testimony.
370
371           (c)     Witness names and addresses. If on request or motion the defendant
372   obtains discovery under subsection (B)(1)(e), the court shall, upon motion of the
373   prosecuting attorney, order the defendant to furnish the prosecuting attorney a list of the
374   names and addresses of the witnesses he intends to call at the trial. Where a motion for
375   discovery of the names and addresses of witnesses has been made by the prosecuting
376   attorney, the defendant may move the court to perpetuate the testimony of such witnesses
377   in a hearing before the court in which hearing the prosecuting attorney shall have the
378   right of cross-examination. A record of the witness' testimony shall be made and shall be
379   admissible at trial as part of the defendant's case in chief in the event the witness has
380   become unavailable through no fault of the defendant.
381
382           (d)    In camera ins pection of witness' statement. Upon completion of the
383   direct examination, at trial, of a witness other than the defendant, the court on motion of
384   the prosecuting attorney shall conduct an in camera inspection of the witness' written or
385   recorded statement obtained by the defense attorney or his agents with the defense
386   attorney and prosecuting attorney present and participating, to determine the existence of
387   inconsistencies, if any, between the testimony of such witness and the prior statement.
388
389          If the court determines that inconsistencies exist the statement shall be given to
390   the prosecuting attorney for use in cross-examination of the witness as to the
391   inconsistencies.
392
393          If the court determines that inconsistencies do not exist the statement shall not be
394   given to the prosecuting attorney, and he shall not be permitted to cross-examine or
395   comment thereon.
396
397          Whenever the prosecuting attorney is not given the entire statement it shall be
398   preserved in the records of the court to be made available to the appellate court in the
399   event of an appeal.
400
401            (2)   Information not subject to disclosure.            Except as provided in
402   subsections (C)(1)(b) and (d), this rule does not authorize the discovery or inspection of
403   reports, memoranda, or other internal documents made by the defe nse attorney or his
404   agents in connection with the investigation or defense of the case, or of statements made
405   by witnesses or prospective witnesses to the defense attorney or his agents.
406
407           (3)   Witness list; no comme nt. The fact that a witness' name is on a list
408   furnished under subsection (C)(1)(c), and that the witness is not called shall not be
409   commented upon at the trial.
410
411           (D)     Continuing duty to disclose. If, subsequent to compliance with a request
412   or order pursuant to this rule, and prior to or during trial, a party discovers additional
413   matter which would have been subject to discovery or inspection under the original
414   request or order, he shall promptly make such matter available for discovery or
415   inspection, or notify the other party or his attorney or the court of the existence of the
416   additional matter, in order to allow the court to modify its previous order, or to allow the
417   other party to make an appropriate request for additional discovery or inspection.
418
419          (E)     Regulation of discovery.
420
421           (1)     Protective orde rs. Upon a sufficient showing the court may at any time
422   order that the discovery or inspection be denied, restricted or deferred, or make such
423   other order as is appropriate. Upon motion by a party the court may permit a party to
424   make such showing, or part of such showing, in the form of a written statement to be
425   inspected by the judge alone. If the court enters an order granting relief following such a
426   showing, the entire text of the party's statement shall be sealed and preserved in the
427   records of the court to be made available to the appellate court in the event of an appeal.
428
429            (2)   Time, place and manner of discovery and inspection. An order of the
430   court granting relief under this rule shall specify the time, place and manner of making
431   the discovery and inspection permitted, and may prescribe such terms and conditions as
432   are just.
433
434          (3)      Failure to comply. If at any time during the course of the proceedings it
435   is brought to the attention of the court that a party has failed to comply with this rule or
436   with an order issued pursuant to this rule, the court may order such party to permit the
437   discovery or inspection, grant a continuance, or prohibit the party from introducing in
438   evidence the material not disclosed, or it may make such other order as it deems just
439   under the circumstances.
440
441           (F)    Time of motions. A defendant shall make his motion for discovery
442   within twenty-one days after arraignment or seven days before the date of trial,
443   whichever is earlier, or at such reasonable time later as the court may permit. The
444   prosecuting attorney shall make his motion for discovery within seven days after
445   defendant obtains discovery or three days before trial, whichever is earlier. The motion
446   shall include all relief sought under this rule. A subsequent mo tion may be made only
447   upon showing of cause why such motion would be in the interest of justice.
448
449   RULE 16        Discovery and inspection
450
451   (A)      Purpose, Scope and Reciprocity. This rule is to provide all parties in a
452   criminal case with the information necessary for a full and fair adjudication of the facts,
453   to protect the integrity of the justice system and the rights of defendants, and to protect
454   the well-being of witnesses, victims, and society at large. All duties and remedies are
455   subject to a standard of due diligence, apply to the defense and the prosecution equally,
456   and are intended to be reciprocal. Once discovery is initiated by demand of the defendant,
457   all parties have a continuing duty to supplement their disclosures.
458
459   (B)      Discovery: Right to Copy or Photograph. Upon receipt of a written demand for
460   discovery by the defendant, and except as provided in division (C), (D), or (F) of this
461   rule, the prosecuting attorney shall provide copies or photographs, or permit counsel for
462   the defendant to copy or photograph, the following items related to the particular case
463   indictment, information, or complaint, and which are material to the preparation of a
464   defense, or are intended for use by the prosecuting attorney as evidence at the trial, or
465   were obtained from or belong to the defendant, within the possession of, or reasonably
466   available to the state, subject to the provisions of this rule:
467
468          (1)     Any written or recorded statement by the defendant or a co-defendant,
469          including police summaries of such statements, and including grand jury
470          testimony by either the defendant or co-defendant;
471
472          (2)     Criminal records of the defendant, a co-defendant, or witness in the state’s
473          case-in-chief, or that it reasonably anticipates calling as a witness in rebuttal;
474
475          (3)    Subject to divisions (D)(4) and (E) of this rule, all laboratory or
476          hospital reports, books, papers, documents, photographs, tangible objects,
477          buildings, or places;
478
479          (4)     Subject to division (D)(4) and (E) of this rule, results of physical or
480          mental examinations, experiments or scientific tests;
481
482          (5)   Any evidence favorable to the defendant and material to guilt or
483          punishment;
484
485          (6)     All peace officer or Ohio State Highway Patrol reports, provided
486          however, that a document prepared by a person other than the witness testifying
487          will not be considered to be the witness’s prior statement for purposes of the
488          cross examination of that particular witness under the Rules of Evidence unless
489          explicitly adopted by the witness;
490
491          (7)      Any written or recorded statement by a witness in the state’s case- in-chief,
492          or that it reasonably anticipates calling as a witness in rebuttal.
493
494   (C)      Prosecuting Attorney’s Designation of “Counsel Only” Materials.            The
495   prosecuting attorney may designate any material subject to disclosure und er this rule as
496   “counsel only” by stamping a prominent notice on each page or thing so designated.
497   “Counsel only” material also includes materials ordered disclosed under division (F) of
498   this rule. Except as otherwise provided, “counsel only” material may not be shown to the
499   defendant or any other person, but may be disclosed only to defense counsel, or the
500   agents or employees of defense counsel, and may not otherwise be reproduced, copied or
501   disseminated in any way. Defense counsel may orally communicate the content of the
502   “counsel only” material to the defendant.
503
504   (D)     Prosecuting Attorney’s Certification of Nondisclosure. If the prosecuting
505   attorney does not disclose materials under this rule, the prosecuting attorney shall certify
506   to the court that the prosecuting attorney is not disclosing material otherwise subject to
507   disclosure under this rule for one or more of the following reasons:
508
509          (1)     The prosecuting attorney has reasonable, articulable grounds to believe
510          that disclosure will compromise the safety of a witness, victim, or third party, or
511          subject them to intimidation or coercion;
512
513          (2)      The prosecuting attorney has reasonable, articulable grounds to believe
514          that disclosure will subject a witness, victim, or third party to a substantial risk of
515          serious economic harm;
516
517          (3)     Disclosure will compromise an ongoing criminal investigation or a
518          confidential law enforcement technique or investigation regardless of whether that
519          investigation involves the pending case or the defendant;
520
521          (4)     The statement is of a child victim of sexually oriented offense under the
522          age of thirteen;
523
524          (5)     The interests of justice require non-disclosure.
525
526           Reasonable, articulable grounds may include, but are not limited to, the nature of
527   the case, the specific course of conduct of one or more parties, threats or prior instances
528   of witness tampering or intimidation, whether or not those instances resulted in criminal
529   charges, whether the defendant is pro se, and any other relevant information.
530
531         The prosecuting attorney’s certification shall identify the nondisclosed material.
532
533   (E)   Right of Inspection in Cases of Sexual Assault.
534
535         (1)     In cases of sexual assault, defense counsel, or the agents or employees of
536         defense counsel, shall have the right to inspect photographs, results of physical or
537         mental examinations, or hospital reports, related to the indictment, information,
538         or complaint as described in section (B)(3) or (B)(4) of this rule. Hospital records
539         not related to the information, indictment, or complaint are not subjec t to
540         inspection or disclosure. Upon motion by defendant, copies of the photographs,
541         results of physical or mental examinations, or hospital reports, shall be provided
542         to defendant’s expert under seal and under protection from unauthorized
543         dissemination pursuant to protective order.
544
545         (2)     In cases involving a victim of a sexually oriented offense less than thirteen
546         years of age, the court, for good cause shown, may order the child’s statement be
547         provided, under seal and pursuant to protective order from una uthorized
548         dissemination, to defense counsel and the defendant’s expert. Notwithstanding
549         any provision to the contrary, counsel for the defendant shall be permitted to
550         discuss the content of the statement with the expert.
551
552
553   (F)   Review of Prosecuting Attorney’s Certification of Non-Disclosure.            Upon
554         motion of the defendant, the trial court shall review the prosecuting attorney’s
555         decision of nondisclosure or designation of “counsel only” material for abuse of
556         discretion during an in camera hearing conducted seven days prior to trial, with
557         counsel participating.
558
559         (1)     Upon a finding of an abuse of discretion by the prosecuting attorney, the
560         trial court may order disclosure, grant a continuance, or other appropriate relief.
561
562         (2)    Upon a finding by the trial court of an abuse of discretion by the
563         prosecuting attorney, the prosecuting attorney may file an interlocutory appeal
564         pursuant to division (K) of Rule 12 of the Rules of Criminal Procedure.
565
566         (3)     Unless, for good cause shown, the court orders otherwise, any material
567         disclosed by court order under this section shall be deemed to be “counsel only”
568         material, whether or not it is marked as such.
569
570         (4)      Notwithstanding the provisions of (E)(2), in the case of a statement by a
571         victim of a sexually oriented offense less than thirteen years of age, where the
572         trial court finds no abuse of discretion, and the prosecuting attorney has not
573         certified for nondisclosure under (D)(1) or (D)(2) of this rule, or has filed for
574         nondisclosure under (D)(1) or (D)(2) of this rule and the court has found an abuse
575          of discretion in doing so, the prosecuting attorney shall permit defense counsel, or
576          the agents or employees of defense counsel to inspect the statement at that time.
577
578          (5)    If the court finds no abuse of discretion by the prosecuting attorney, a
579          copy of any discoverable material that was not disclosed before trial shall be
580          provided to the defendant no later than commencement of trial. If the court
581          continues the trial after the disclosure, the testimony of any witness shall be
582          perpetuated on motion of the state subject to further cross-examination for good
583          cause shown.
584
585   (G)      Perpetuation of Testimony. Where a court has ordered disclosure of material
586   certified by the prosecuting attorney under division (F) of this rule, the prosecuting
587   attorney may move the court to perpetuate the testimony of relevant witnesses in a
588   hearing before the court, in which hearing the defendant shall have the right of cross-
589   examination. A record of the witness's testimony shall be made and shall be admissible at
590   trial as part of the state's case in chief, in the event the witness has become unavailable
591   through no fault of the state.
592
593   (H)      Discovery: Right to Copy or Photograph. If the defendant serves a written
594   demand for discovery or any other pleading seek ing disclosure of evidence on the
595   prosecuting attorney, a reciprocal duty of disclosure by the defendant arises without
596   further demand by the state. The defendant shall provide copies or photographs, or permit
597   the prosecuting attorney to copy or photograph, the following items related to the
598   particular case indictment, information or complaint, and which are material to the
599   innocence or alibi of the defendant, or are intended for use by the defense as evidence at
600   the trial, or were obtained from or belong to the victim, within the possession of, or
601   reasonably available to the defendant, except as provided in division (J) of this rule:
602
603           (1)    All laboratory or hospital reports, books, papers, documents, photographs,
604          tangible objects, buildings or places;
605
606          (2)     Results of physical or mental examinations, experiments or scientific tests;
607
608           (3)    Any evidence that tends to negate the guilt of the defendant, or is material
609          to punishment, or tends to support an alibi. However, nothing in this rule shall be
610          construed to require the defendant to disclose information that would tend to
611          incriminate that defendant;
612
613           (4)    All investigative reports, except as provided in division (J) of this rule;
614
615           (5)    Any written or recorded statement by a witness in the defendant’s case- in-
616          chief, or any witness that it reasonably anticipates calling as a witness in
617          surrebuttal.
618
619   (I)     Witness List. Each party shall provide to opposing counsel a written witness list,
620   including names and addresses of any witness it intends to call in its case- in-chief, or
621   reasonably anticipates calling in rebuttal or surrebuttal. The content of the witness list
622   may not be commented upon or disclosed to the jury by opposing counsel, but during
623   argument, the presence or absence of the witness may be commented upon.
624
625   (J)     Information Not Subject to Disclosure. The following items are not subject to
626   disclosure under this rule:
627
628          (1)     Materials subject to the work product protection. Work product includes,
629          but is not limited to, reports, memoranda, or other internal documents made by the
630          prosecuting attorney or defense counsel, or their agents in connection with the
631          investigation or prosecution or defense of the case;
632
633          (2)     Transcripts of grand jury testimony, other than transcripts of the
634          testimony of a defendant or co-defendant. Such transcripts are governed by Crim.
635          R. 6;
636
637          (3)    Materials that by law are subject to privilege, or confidentiality, or are
638          otherwise prohibited from disclosure.
639
640   (K)     Expert Witnesses; Reports.            An expert witness for either side shall
641   prepare a written report summarizing the expert witness’s testimony, findings, analysis,
642   conclusions, or opinion, and shall include a summary of the expert’s qualifications. The
643   written report and summary of qualifications shall be subject to disclosure under this rule
644   no later than twenty-one days prior to trial, which period may be modified by the court
645   for good cause shown, which does not prejudice any other party. Failure to disclose the
646   written report to opposing counsel shall preclude the expert’s testimony at trial.
647
648   (L)    Regulation of discovery.
649
650          (1)     The trial court may make orders regulating discovery not inconsistent with
651          this rule. If at any time during the course of the proceedings it is brought to the
652          attention of the court that a party has failed to comply with this rule or with an
653          order issued pursuant to this rule, the court may order such party to permit the
654          discovery or inspection, grant a continuance, or prohibit the party from
655          introducing in evidence the material not disclosed, or it may make such other
656          order as it deems just under the circumstances.
657
658          (2)      The trial court specifically may regulate the time, place, and manner of a
659          pro se defendant’s access to any discoverable material not to exceed the scope of
660          this rule.
661
662          (3)    In cases in which the attorney-client relationship is terminated prior to trial
663          for any reason, any material that is designated “counsel only”, or limited in
664          dissemination by protective order, must be returned to the state. Any work
665          product derived from said material shall not be provided to the defendant.
666
667   (M) Time of motions.            A defendant shall make his demand for discovery within
668   twenty-one days after arraignment or seven days before the date of trial, whichever is
669   earlier, or at such reasonable time later as the court may permit. A party’s motion to
670   compel compliance with this rule shall be made no later than seven days prior to trial, or
671   three days after the opposing party provides discovery, whichever is later. The motion
672   shall include all relief sought under this rule. A subsequent motion may be made only
673   upon showing of cause why such motion would be in the interest of justice.
674
675                                                   ***
676
677                               Staff Notes (July 1, 2010 Amendments)
678
679   Division (A): Purpose, Scope and Reciprocity
680
681            The purpose of the revisions to Criminal Rule 16 is to provide for a just determination of
682   criminal proceedings and to secure the fair, impartial, and speedy administration of justice
683   through t he ex panded scope of materials to be exchanged between the parties. Nothing in this
684   rule shall inhibit the parties from exchanging greater discovery beyond the scope of t his rule. The
685   rule accelerates the timing of the exchange of materials, and expands the reciprocal duties in the
686   exchange of materials. The limitations on disclosure permitted under thi s rule are believed to
687   apply to the minority of criminal cases.
688
689           The new rule balances a defendant’s constitutional rights with t he community’s
690   compelling interest in a thorough, effective, and just prosecution of criminal acts.
691
692            The Ohio criminal defense bar, by and through the Ohio Association of Criminal Defense
693   Lawy ers and prosecutors, by and t hrough the Ohio P rosecuting Attorneys Association, jointly
694   drafted the rule and submitted committee notes to the Commission on the Rules of Practice and
695   Procedure. The Commission on the Rules of Practice and P rocedure discussed, modified, and
696   adopted the notes submitted in developing these staff not es.
697
698   Division (B): Discovery: Right To Copy or Photograph
699
700           This division ex pands the State’s duty to disclose mat erials and information beyond what
701   was required under the prior rule. All disclosures must be made prior to trial. This division also
702   requires the materials to be copied or photographed as opposed to inspection as permitted under
703   the prior rule. Subject to several exceptions, the State must provide pretrial disclosure of all
704   materials as listed in the enumerat ed divisions.
705
706   Division (C): Prosecuting Attorney’s Designation of “Counsel Only” Materials
707
708            The State is empowered to limit dissemination of sensitive materials to defens e counsel
709   and agents thereof in c ertain instances. Documents marked as “Counsel Only” may be orally
710   interpreted to the Defendant, or to couns el’s agents and employees, but not shown or
711   disseminated to other persons. The rule recognizes that defense counsel bears a duty as an
712   officer of the c ourt to physically ret ain “Counsel Only” material, and to limit its dissemination.
713   Counsel’s duty to the client is not implic ated, since the rule expressly allows oral communication
714   of the nature of the “Counsel Only” material.
715
716   Division (D): Prosecuting Attorney’s Certification of Nondisclosure
717
718           This division provides a means to prevent disclosure of items or materials for limited
719   reasons. The pros ecution must be able to place reasonable limits on dissemination to preserve
720   testimony and evidence from tampering or intimidation, and cert ain other enumerat ed purposes.
721   The new rule explicitly recognizes that it is the prosecution’s duty to assess the danger to
722   witnesses and victims, and the need to protect those witnesses and victims by controlling the
723   early disclosure of certain mat erial, subject to judicial review.
724
725             A nondisclosure must be for one of the reasons enumerated in the rule, and must be
726   certified in writing to the court. The certification need not disclose the cont ents or meaning of the
727   nondisclosed material, but must describe it with sufficient particularity to identify it during judicial
728   review as described in division (F).
729
730          The certification process recognizes the unique nature of sex crimes against children. In
731   the event of a certification of nondisclosure, defense counsel will have the right to inspect the
732   statement no later than the seven -day review hearing provided in s ubsection (F), which is an
733   improvement from the prior Criminal Rule 16(B)(1)(g).
734
735            Finally, the rule recognizes that not every eventuality can be anticipated in the t ext of a
736   rule, and allows nondisclosure in the interest of justice.
737
738   Division (E): Right of Inspection in Cases of Sexual Assault
739
740           This division recognizes the intensely personal nature of a sexual assault, and provides a
741   special mechanism for discovery in such cases. It represents an exception to division (B ).
742
743            The compromise between the interests in the privacy and dignity of the victim are
744   balanced against the right of the defendant to a thorough review of the State’s evidence by
745   permitting inspection, but not copying, of cert ain materials. Upon motion of the defendant, the
746   court may, in its discretion, permit these materials to be provided under seal to defense counsel
747   and the defendant’s expert.
748
749             In cases involving the sexual abus e of a child under the age of 13, upon motion and for
750   good cause shown, the trial court may order dissemination of the child’s statement under seal
751   and pursuant to protective order to defense counsel and t he defendant’s expert. This provision
752   facilitates meaningful communication between defense c ounsel and the defense expert, and to
753   permit timely compliance with division (K) of the rule.
754
755           Division (E)(2) is intended to give sufficient time for an expert to evaluate the statement,
756   and also to permit defense counsel to consult with the expert on the content of the statement and
757   issues relat ed t o it. This division is designed to provide an exception t o the nondisclo sure
758   procedure sufficient to permit the ex pert and defense counsel to effectively evaluate the
759   statement.
760
761   Division (F): Review of Prosecuting Attorney’s Certification of Non-Disclosure
762
763              This division provides for judicial review at the trial court level o f a prosecutor’s
764   certification of nondisclosure. As in many other executive branch decisions the standard for
765   review, subject to constitutional protections, is an abuse of discretion – that is, was the
766   prosecut or’s decision unreasonable, arbitrary or capricious? The prosecution of a case is an
767   executive function. The rule’s nondisclosure provision is a tool to ensure the prosecutor is able to
768   fulfill that executive function.
769
770           The prosec utor should possess extensive knowledge about a case, including matters not
771   properly admissible in evidence but highly relevant to the safety of the victim, witnesses, or
772   community. Accordingly, the rule vests in the prosec utor the authority for seeking protection by
773   the nondisclosure, and deference when making a good faith decision about unpredictable
774   prospective human behavior.
775
776            The review is conducted in camera on the objective criteria set out in division (D), seven
777   days prior to trial, with defense counsel participating. If the Court finds an abuse of discretion, the
778   material must be immediately disclosed to defense counsel. If the Court does not find an abuse of
779   discretion, the material must nonetheless be disclosed no later than the commencement of trial.
780   Further judicial review is provided by giving the prosecut or a right to an interlocutory appeal of an
781   order of disclosure as provided for in Criminal Rule 12(K), which is amended to accommodate
782   that process.
783
784            Upon motion of the State, the certification of nondisclosure or “Counsel Only” designation
785   is reviewable by the trial judge in the in camera proceeding. The preferred practice is to record or
786   transcribe the in camera review to preserve any issues for appeal and sealed to pres erve the
787   confidential nature of the information.
788
789             The in camera review is set seven days prior to trial so that it is, in essence, the end of
790   the trial preparation stage. There was substantial debate regarding the time for this review.
791   Seven days provides adequat e opportunity for the defense to prepare for trial and respond t o the
792   content of any nondisclosed material. The protective purpose of this process would be destroyed
793   if courts routinely granted continuances of a trial date after conducting the seven -day
794   nondisclosure review. The Commission anticipated t hat continuances of trial dates w ould occur
795   only in limited circumstances.
796
797            Division (F)(4) seeks to protect victims of sexual assault who are still in their tender
798   years.
799
800   Division (G): Perpetuation of Testimony
801
802           This division provides that if after judicial review t he Court orders disc losure of evidenc e,
803   the prosecutor upon motion to the Court is given a right to perpetuate t estimony in a pretrial
804   hearing as set forth in the subsection.
805
806   Division (H): Discovery: Right to Copy or Photograph
807
808            The previous rule allowed for disclosure of specified relevant evidence in the possession
809   of defens e counsel to t he State upon the State’s motion. This division expands defense counsel’s
810   duty to disclose materials and information beyond what was required under the prior rule. In this
811   division a reciprocal duty of disclosure now arises upon defense counsel’s motion for discovery
812   without further demand from the State. This division requires the materials to be copied or
813   photographed, as opposed to the prior rule that only allowed for inspection by t he S t ate. Subject
814   to several exceptions covered in division (J), defens e counsel must provide pretrial disclosure of
815   materials as listed in the enumerat ed subsections. This division seeks to define the defense
816   counsel’s reciprocal duty of disclosure while resp ecting the constitutional and et hical obligations
817   required in representing a client.
818
819           For the first time, defense counsel has a duty to provide the State with evidence that
820   tends to support innocence or alibi. This allows the State to properly assess its c ase, and re-
821   evaluate the prosecution. The Commission believes this provision will facilitate meaningful plea
822   negotiation and just resolution.
823
824   Division (I): Witness List
825
826            This division imposes an equal duty on each party to disclose the list of witnesses t hat
827   will be called at trial. It prohibits counsel from commenting on t he witness lists but does not
828   prohibit the commenting upon the absence or presence of a witness relevant to the proceeding.
829   See, State v. Hannah, 54 Ohio St.2d 84, 374 N.E.2d 1359 (1978).
830
831   Division (J): Information Not Subject to Disclosure
832
833           This division clarifies what information is not subject to disclosure by either party for
834   reasons of confidentiality, privilege, or due to their classification as documents determined to be
835   work product. This division also references that t he disclosure or nondisclosure of grand jury
836   testimony is governed by Rule 6 of the Rules of Criminal Procedure.
837
838   Division (K): Expert Witnesses; Reports
839
840            The division requires disclosure of the expert witness’s written report as detailed in the
841   division no later than twenty-one days prior to trial. Failure to comply with the rule precludes the
842   expert witness from t estifying during trial. This prevents either party from avoiding pretrial
843   disclosure of the substance of expert witness’s testimony by not requesting a written report from
844   the expert, or not seeking introduction of a report. This division does not require written reports of
845   consulting experts who are not being called as witnesses.
846
847   Division (L): Regulation of Discovery
848
849            The trial court continues to retain discretion to ensure that the provisions of the rule are
850   followed. This discretion protects the int egrity of the criminal justice process while protecting the
851   rights of the defendants, witnesses, victims, and society at large.
852
853            In cases in which a defendant initially proceeds pro se, the trial court may regulat e the
854   exchange of discoverable material to accommodate the absence of defense counsel. Said
855   exchange must be consistent wit h and is not to exceed the scope of the rule. In cases in which
856   the attorney-client relationship is terminated prior to trial for any purpose, any material designated
857   “Counsel Only ” or limited in dissemination by protective order must be returned to the State. A ny
858   work product derived from such material shall not be provided to the defendant.
859
860             The provisions of (L)(2) and (L)(3) are designed to give the court greater authority to
861   regulate discovery in cases of a pro s e defendant and addresses the problems that could arise if
862   a defendant terminat es the employment of his attorney and then demands everything in the
863   attorney’s file. This could frustrate the protections built into the rule to avoid release of material
864   directly to the defendant in some cases.
865
866   Section (M): Time of Motions
867
868            This division requires timely compliance with all provisions of this rule subject to judicial
869   review. Adherence to the requirements of this division will help to ens ure the fair administration of
870   justice.
871
872                                                    ***
873
874   RULE 41.         Search and Seizure
875
876                                                    ***
877
878   (C)     Issuance and contents.
879
880   (1)     A warrant shall issue under this rule only on either an affidavit or affidavits sworn
881   to before a judge of a court of record and or an affidavit or affidavits communicated to
882   the judge by reliable electronic means establishing the grounds for issuing the warrant.
883   The affidavit shall name or describe the person to be searched or particularly describe the
884   place to be searched, name or describe the property to be searched for and seized, state
885   substantially the offense in relation thereto, and state the factual basis for the affiant's
886   belief that such property is there located. If the affidavit is provided by reliable electronic
887   means, the applicant communicating the affidavit shall be placed under oath and shall
888   swear to or affirm the affidavit communicated.
889
890   (2)     If the judge is satisfied that probable cause for the search exists, he the judge shall
891   issue a warrant identifying the property and naming or describing the person or place to
892   be searched. The warrant may be issued to the requesting prosecuting attorney or other
893   law enforcement officer through reliable electronic means. The finding of probable cause
894   may be based upon hearsay in whole or in part, provided there is a substantial basis for
895   believing the source of the hearsay to be credible and for believing that there is a factual
896   basis for the information furnished. Before ruling on a request for a warrant, the judge
897   may require the affiant to appear personally, and may examine under oath the affiant and
898   any witnesses he the affiant may produce. Such testimony shall be admissible at a
899   hearing on a motion to suppress if taken down by a court reporter or recording
900   equipment, transcribed, and made part of the affidavit. The warrant shall be directed to a
901   law enforcement officer. It shall command the officer to search, within three days, the
902   person or place named for the property specified. The warrant shall be served in the
903   daytime, unless the issuing court, by appropriate provision in the warrant, and for
904   reasonable cause shown, authorizes its execution at times other than daytime. The
905   warrant shall designate a judge to whom it shall be returned.
906
907                                                   ***
908
909                                Staff Note (July 1, 2010 Amendments)
910
911            The revisions to Crim. R. 41 now permit an applicant for a search warrant to be in
912   communication with a judge by reliable electronic means. The concept of reliable electronic
913   means is seen as broad enough t o enc ompass present communication technologies as well as
914   those that may be developed over t he next decades. Nothing in these revi sions is intended to
915   lessen the requirement that the judge confirm the identity of the applying law enforc ement officer,
916   that the judge is satisfied that probable c ause for a warrant exists, and that an appropriate record
917   for subsequent review is created.
918
919                                                   ***
920   RULE 59.        Effective Date
921
922                                                   ***
923
924   (Y)     Effective date of amendme nts.        The amendments to Criminal Rules 12, 16
925   and 41 filed by the Supreme Court with the General Assembly on January 14, 2010 shall
926   take effect on July 1, 2010. They govern all proceedings in actions brought after they take
927   effect and also all further proceedings in actions then pending, except to the extent that
928   their application in a particular action pending when the amendments take effect would
929   not be feasible or would work injustice, in which event the former procedure applies.
930
931                                                   ***
932

								
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