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Open discovery issue comes up during Supreme Court visit

April 23, 2009

LISBON - The issue of more open discovery that's been batted about in Columbiana County came up Wednesday during the visit of the Supreme Court of Ohio, the group which could have a hand in deciding new rules.

"There is sentiment on the court to have some form of open records," Chief Justice Thomas Moyer said during a brief interview.

Discovery is the process used to reveal the evidence and expected witnesses in a case to the other side. In criminal cases, much of the burden falls on the prosecution to reveal evidence against a defendant, although the defense is expected to share its list of possible witnesses and evidence.

In recent months, the issue prompted some controversy in a criminal case in Common Pleas Court, with a decision by Judge C. Ashley Pike drawing critical comments from police agencies, Sheriff Ray Stone and county Prosecutor Robert Herron.

When asked where the issue stood with the court, Moyer said a Supreme Court committee was reviewing Criminal Rule 16 and was expected to make recommendations this fall. The Supreme Court justices will decide whether to adopt the recommendations, which then have to go to the state legislature for final approval by July 2010.

He said more than 30 counties in the state have some form of open file, open records policy.

Moyer said the committee will look at the whole issue and take into consideration comments of defense attorneys and prosecutors. Members of the Ohio Prosecuting Attorneys Association are proposing an adoption of federal discovery rules for criminal cases.

Herron said recently that he was involved in some of the discussions and said the proposal tries to take into account the interests of the law-abiding public as well as those charged with criminal offenses. One of the concerns he's expressed with the more open discovery being promoted by defense attorneys was the possible retaliation threat to witnesses due to the release of their whole statements.

A question about the discovery issue was posed by a student during a press conference held with the Supreme Court justices prior to them hearing oral arguments in a Common Pleas courtroom.

Justice Paul Pfeifer explained that on the civil side, there's open discovery, but some different rules on the criminal side.

"The idea is no ambush at trial," he said, noting that federal cases have open discovery. "We're moving in that direction."

He and Moyer said the Supreme Court of Ohio sent a proposal for changes to the legislature about 10 years ago to open criminal files, but the idea was rejected.

Justice Maureen O'Connor said there's a lot to consider, with a need to protect the victims and witnesses from retaliation. She also pointed out that under the rules, prosecutors are duty-bound now to turn over anything which could be favorable to a defendant.

Mary Ann Greier can be reached at



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