Wednesday, November 14, 2007
The Oh in Ohio: Supreme Court of Ohio to Review Order Requiring Prosecutor to Turn Over Police Report
Ohio appears to be a state plagued with odd evidentiary rules. Earlier, I wrote about how Ohio, unlike the vast majority of states, has no express provision for the admissibility of opinions and diagnoses in medical or psychiatric records. Then, I wrote about how the Ohio Supreme Court expanded the hearsay exception allowing for the admission of statements made for purposes of medical treatment or diagnoses further than any court in any case that I have come across.
Yesterday, however, I came across an even odder Ohio rule that may soon be repealed. Wilson Santiago has been charged with killing Detective Jonathan "A.J." Schoreder, and a judge recently issued an order requiring that prosecutor Bill Mason turn over to defense counsel all police reports and witness interviews related to Schroeder's death. Mason has appealed to the Ohio Supreme Court, claiming that both Ohio case law and its criminal rules indicate that a defendant is not entitled to police reports.
Most states have open discovery rules, which require that prosecutor disclose to defense counsel a full investigatory file so that defense counsel can glean any exculpatory material from it. Ohio Criminal Rule of Procedure 16, however, gives prosecutors sole discretion to determine what is exculpatory and thus what must be turned over to defense counsel.
Last December, the Supreme Court of Ohio considered changing the way that it interprets this rule after it received 800 letters asking that the rule be relaxed as opposed to only 20 letters, all from prosecutors, asking that the rule be kept the same. Those asking that the rule be altered claim that it provides a recipe for prosecutor misconduct. The prosecutors supporting the rule claim that it aloows anonymous tipsters to come forward without fear that their statements will be disclosed to the defendant; they also note that police reports are inadmissible as evidence.
Looking at the plain language of the Ohio Rules of Evidence, one might conclude that this latter statement is incorrect. Ohio Rule of Evidence 803(8) states that public records and reports are admissible as an exception to the rule against hearsay; however, in criminal cases matters observed by police officers and other law enforcement personnel are inadmissible hearsay, unless offered by the defendant. This language would seem to make police reports admissible when the defendant seeks to introduce them in a criminal case, but the Supreme Court of Ohio in State v. Ward, 474 N.E.2d 300, 358 (Ohio 1984), somehow came to the conclusion that this language only allows for the admission "routine records", a category that does not include police reports.
I would argue, however, that Ohio's rules are unconstitutional. Pursuant to the Supreme Court's opinion in Brady v. Maryland, 373 U.S. 83 (1963), a new trial is warranted when the prosecution fails to timely disclose to the defendant material exceulpatory evidence. Evidence is "material" when there is a reasonable probability that its timely disclosure would have changed the outcome at trial. However, since the Supreme Court's decision in Wood v. Bartholomew, 516 U.S. 1 (1995), courts have split as to whether inadmissible evidence can ever form the basis for a Brady violation. Ohio appears to among those states finding that the failure to disclose inadmissible evidence can never form the basis for a Brady violation. See, e.g., State v. Davis, 2001 WL 10037 (Ohio App. 2 Dist. 2001).
I feel, however, that if the Supreme Court ever resolves this circuit split, it will decide that the failure to disclose inadmissible evidence can form the basis for a Brady violation, and the Wilson Santiago provides good reasons why this should be the case. First, even though the police report is "inadmissible," Santiago could easily have reason to use it at trial. If the police officer preparing the report testified in a manner inconsistent with his police report, Santiago's attorney could use the report to impeach his testimony under Ohio Rule of Evidence 613.
If the police officer testified and could not remember certain details, Santiago's attorney could use the report to refresh his recollection pursuant to Ohio Rule of Evidence 612. In fact, at this point, if the prosecution wanted to introduce the police report into evidence, the report would be admissible under Rule 612, providing a second reason why "inadmissible" evidence could form the basis for a Brady violation.
Third, even though a police report is "inadmissible," it could be used in producing admissible evidence. Federal Rule of Evidence 703 and many state counterparts (although not Ohio) allow an expert to testify about opinions he formed on the basis of inadmissible evdience as long as the inadmissible evidence is of a type reasonably relied upon by experts in his field. Thus, as one example, the Tenth Circuit Court of Appeals in Saiz v. Ortiz, 392 F.3d 1166, 1181 (10th Cir. 2004), found that while a police report was inadmissible, an expert witness properly relied upon it in forming conclusions about whether the victim suffered from battered woman's syndrome or post-traumatic stress disorder because experts frequently rely upon police reports in reaching such conclusions. Furthermore, in this case, not only would the police report be "admissible" if offered by the prosecution, but it would also be admissible if offered by the defendant if the judge found that its probative value in assisting the jury to evaluate the expert's testimony substantially outweighed its prejudicial effect.
Finally, even though a police report is "inadmissible," it could directly lead to admissible evidence. Thus, while a person's statement to a police officer that someone other than the defendant committed the crime at issue would be inadmissible hearsay, that statement could easily lead the defendant to the person identified in the statement and evidence linking him to the crime.