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 firstname.lastname@example.org 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General Assembly and not withdrawn prior to May 1, 2010 will take effect on July 1,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
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
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
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
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
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
4 FILED BY THE SUPREME COURT OF OHIO
5 PURSUANT TO ARTICLE IV, SECTION 5 OF THE OHIO CONSTITUTION
9 OHIO RULES OF APPELLATE PROCEDURE
13 Rule 14. Computation and Extension of time.
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.
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.
31 Staff Note (July 1, 2010 amendment)
33 The amendment is a technical amendment to reflect the procedure in App. R. 26.
37 Rule 15. Motions.
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.
55 Rule 25. Motion to certify a conflict.
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.
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.
74 (C) The court of appeals shall rule upon a motion to certify within sixty days of its
79 Staff Note (July 1, 2010 amendment)
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.
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).
99 Rule 26. Application for reconsideration; Application for en banc
100 consideration; application Application for reopening.
102 (A) Application for reconside ration and en banc consideration.
104 (1) Reconsideration
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.
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.
124 (c) The application for reconsideration shall be considered by the
125 panel that issued the original decision.
127 (2) En banc consideration
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.
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.
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.
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.
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.
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.
167 Staff Note (July 1, 2010 amendment)
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.
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).
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.
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.
202 RULE 43. Effective Date
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.
214 OHIO RULES OF CRIMINAL PROCEDURE
218 RULE 12. Pleadings and Motions Before Trial: Defenses and Objections
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:
226 (1) the appeal is not taken for the purpose of delay;
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).
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
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.
244 This appeal shall take precedence over all other appeals.
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.
254 RULE 16. Discovery and Inspection
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.
260 (B) Disclosure of evidence by the prosecuting attorney.
262 (1) Information subject to disclosure.
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:
270 (i) Relevant written or recorded statements made by the defendant or co-
271 defendant, or copies thereof;
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;
276 (iii) Recorded testimony of the defendant or co-defendant before a grand jury.
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.
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.
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.
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.
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
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.
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.
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
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.
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.
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.
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.
350 (C) Disclosure of evidence by the defendant.
352 (1) Information subject to disclosure.
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.
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.
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.
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.
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
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.
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.
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.
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.
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.
419 (E) Regulation of discovery.
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.
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.
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.
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.
449 RULE 16 Discovery and inspection
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.
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:
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;
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;
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;
479 (4) Subject to division (D)(4) and (E) of this rule, results of physical or
480 mental examinations, experiments or scientific tests;
482 (5) Any evidence favorable to the defendant and material to guilt or
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;
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.
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.
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:
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;
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;
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;
521 (4) The statement is of a child victim of sexually oriented offense under the
522 age of thirteen;
524 (5) The interests of justice require non-disclosure.
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.
531 The prosecuting attorney’s certification shall identify the nondisclosed material.
533 (E) Right of Inspection in Cases of Sexual Assault.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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:
603 (1) All laboratory or hospital reports, books, papers, documents, photographs,
604 tangible objects, buildings or places;
606 (2) Results of physical or mental examinations, experiments or scientific tests;
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;
613 (4) All investigative reports, except as provided in division (J) of this rule;
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
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.
625 (J) Information Not Subject to Disclosure. The following items are not subject to
626 disclosure under this rule:
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;
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;
637 (3) Materials that by law are subject to privilege, or confidentiality, or are
638 otherwise prohibited from disclosure.
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.
648 (L) Regulation of discovery.
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.
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.
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.
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.
677 Staff Notes (July 1, 2010 Amendments)
679 Division (A): Purpose, Scope and Reciprocity
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.
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.
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.
698 Division (B): Discovery: Right To Copy or Photograph
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.
706 Division (C): Prosecuting Attorney’s Designation of “Counsel Only” Materials
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.
716 Division (D): Prosecuting Attorney’s Certification of Nondisclosure
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.
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).
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).
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.
738 Division (E): Right of Inspection in Cases of Sexual Assault
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 ).
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.
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.
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
761 Division (F): Review of Prosecuting Attorney’s Certification of Non-Disclosure
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.
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.
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.
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.
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.
797 Division (F)(4) seeks to protect victims of sexual assault who are still in their tender
800 Division (G): Perpetuation of Testimony
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.
806 Division (H): Discovery: Right to Copy or Photograph
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.
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.
824 Division (I): Witness List
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).
831 Division (J): Information Not Subject to Disclosure
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.
838 Division (K): Expert Witnesses; Reports
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.
847 Division (L): Regulation of Discovery
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.
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.
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.
866 Section (M): Time of Motions
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
874 RULE 41. Search and Seizure
878 (C) Issuance and contents.
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.
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.
909 Staff Note (July 1, 2010 Amendments)
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.
920 RULE 59. Effective Date
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.