All right, Lawyer Talk podcast, off the record, on the air, we've got a Yet another Circle 270 media follow up question.

So for those of you who don't know, we've got our producer, Brett Johnson owns Circle270 Media and he's over there in the control center making things happen.

And after we answer these questions, the most recent one about discovery and should we share discovery with our clients, etcetera, we got to talking a little bit about council only stuff and when stuff is marked by prosecutors, council only.

And he had a good question.

He said, look, what about if the victim, alleged victim of a crime, makes a statement and you can't share it with your client?

Or is there ever a time that we don't get that statement at all?

It's a great question for reasons that Brett probably doesn't even realize, because in the old days, I'll call the old days, when I first started practicing law back in 1995, nice.

November of 95, I passed the bar exam.

We had different discovery rules here in Ohio.

And the federal courts still have like something similar to the old Ohio rules, and that was this.

I didn't get witness statements, not written, not recorded until after the witness testified, a trial.

So for all you people, all you young bucks who are out there practicing law in Ohio or elsewhere, where you got full discovery and you've got, you can go to school on all these written witness statements, you put your headphones on, you watch the videos.

I didn't get to do that.

Here's how it used to work.

We'd go to trial and typically it would work like this.

We'd go over to court for 9am hearings and the judge would say, all right, where are we?

We don't have it resolved yet.

Judge Cool.

We'll come back for trial at 1:30.

And we'd show up at 1:30.

And how could we possibly do this?

Because we didn't have any information.

We didn't use to get discovery.

We didn't get witness statements in advance of trial.

I didn't even get police reports or summaries.

We would show up and all I would have is a witness list.

And some of that I didn't even have.

And I'd have like results of exams.

So if it's like an assault case and we wouldn't have any witness statements, what's there to do?

You know, we'd show up and try the case.

We'd work it up and do our own investigation, of course, but we didn't even get the police summaries of what the witnesses said, what would happen?

We would.

The prosecutor put on, say, the victim of an assault case, who would give us his version of the events.

And then I would stand up and say, judge, I'd like to take a brief recess and look over at the prosecutor and say, I would like to request 16B 1G material, which is the prior statements of witnesses, that then the judge and the lawyers would review together to see if there's anything inconsistent about the witness's direct testimony.

So imagine this.

You're going to go try a case.

You're accused of an assault, and I look at, and you say, what's the natural question?

What's the victim say?

Yeah, I don't know.

I'll find out.

A trial, roll the dice, little gamble.

And then I get the statement.

And I'd be, like, going through it real fast at the bench with the judge, and I'd be highlighting stuff, and I'd be like, all right, I'm ready for cross examination.

You want to learn how to cross examine somebody, you do it that way.

Just.

You basically have the gun learning it.

Yeah, that's right.

You got to sink or swim fast.

And that all changed with our updated discovery rules.

I don't remember when that was.

Sometime in the late 90s.

I think that all changed.

Maybe early 2000s, where we had open discovery and I could actually get everything.

But before then, I wouldn't even get police reports.

So I used to use all sorts of techniques where I would ask cops if they refresh their recollection before testifying.

So lead detectives on the stand, and I would my first five questions.

I imagine that you did a lot of work on the case.

Yeah, I imagine that you documented all that work per your training.

Yeah.

And your training is to write everything down and keep careful notes and document all the calls and things.

Oh, yeah, yeah.

We do all that.

And.

But this case was, what, two years ago when it happened?

Now we're going to trial.

I suspect that you probably took some time reviewing all those notes and summaries and reports before you testified.

Yes, I did, Judge.

I'm entitled to have this because witnesses used it to refresh his recollection under the rules of evidence.

I'm sure you remember.

Yes, absolutely.

I'm allowed to get.

I'm allowed to have access to anything a witness used to refresh his recollection, and then I would get the police report.

Used to piss off prosecutors incessantly, but I was allowed to do it.

And those were the kind of Tricks we had to do.

But that would be the first time I would ever see like a 15 page or 20 page police report of what they did.

It was crazy.

Crazy.

Now federal court has something called the Jinx Act.

The Jinx Act, I think was 1957 or something like that.

But it works just like Ohio's old.

Not just like similar to Ohio's old 16B 1G stuff where in theory, I don't get prior witness statements until after the witness testifies on the stand.

In a federal court case, we will often file a motion for jinx material in advance of trial.

Sometimes judges want you to do that because they don't want to take the time in the middle of trial to have everybody review everything.

But I feel like that would drag

it out like crazy at trial.

You're basically just doing recesses between every single witness.

Yeah, that's what we used to do in a federal court.

But there's an old story when Ohio was adopting discovery rules and Ohio decided that they're going to Ohio would supply or mandate disclosure of witnesses names and maybe even addresses.

And the old story is there was somebody on the general assembly floor throwing pictures out.

You know, here's Jane Doe, here's John Doe, here's Bill Jones.

And they were all people who were killed in cases because they were witnesses.

So a lot of this goes back to the mob days when people would kill witnesses so they wouldn't testify.

So that was basically the reasoning for the change is like, we're over the mob days now.

We can actually just.

Well, I don't know what the reasoning.

I can't profess to know the reasoning for the change, but that was the argument against disclosure of witness names and identities.

And do you like the change?

Well, yeah, look, I mean, now what do we do with it?

So we hire an investigator and he goes out and I say, look, go interview all these witnesses immediately.

And you know what?

We also, again, sort of like we were saying in the initial answer to the question, these things bump up against each other.

We've got the need to protect witness identities, et cetera.

But at the same time, anybody who reads, say, Strickland versus Washington, the seminal case on lawyers providing ineffective assistance of counsel, all you have to do is a cursory view of that and you're going to find cases that say we as lawyers have a duty to interview the witnesses who that are going to testify against our client.

Well, that's impossible if I don't know who they are.

So you just, you run into these problems and, you know, I guess in, in the old days, a defense investigation was critical if you're going to find out what's going on.

And that's why, like, picture Bogart out there running around in the Maltese Falcon or whatever he's doing, you know, interviewing witnesses or gumshoeing the old fashioned gumshoe or what was the other one with Jack?

You don't remember this, but look, we still interview witnesses.

I send my investigator out.

It's just a lot easier now.

Anyway, great Follow up from Circle270Media Question of the day.

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