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Absolutely.

You know, every now and then we talk about something that really, really grabs people by the gut and makes them hate us or doubt us or say, well, let's just get, let's jump at it. We talked about Ohio's old discovery rules a couple weeks ago or whenever it released in. And what I was talking about is in the old days, by old days, I mean, like pre2010 in Ohio, we didn't get open discovery. We didn't. So I, and I said on the video, like, look, we would go to trial and I would not have even complete police reports, meaning summaries of witness statements. I would get maybe generally, maybe a timeline, you know, maybe some like 911 calls, that kind of stuff, but nothing. I wouldn't get the meat of it.

Why was it 2010?

Well, in 2010, as it turns out for the doubters out there, Ohio changed its rule. They opened up the, they adopted the open discovery rule in 2010. Before that, criminal defense lawyers did not have a general right to full police file or investigative reports. You heard it here, folks. While prosecutors were mandated to provide exculpatory evidence, Brady material. And we're going to get to that. They, because one of the comments talked about it and specific items listed under the old version, like, it'd be like lab reports, stuff. Like, there wasn't much DNA before those days, but fingerprint evidence. We would get that. They were permitted to withhold investigative reports, witness statements and internal documents until a witness testified at trial. The Ohio association of Criminal Defense Lawyers and some other groups in Ohio were big in trying to get this changed. And in fact, current Attorney General Dave Yost, I don't remember what his position, maybe he was the attorney general. I have to look it up. But he called in on npr, a radio show or WSU and National Public Radio and this was getting discussed. I called in and debated him about it because he was a prosecutor in Delaware county, maybe at the time. But anyway, I called in and said, look, I mean, we should have open discovery. It was a big deal. I mean, and just to be clear, what I talked about was I would go to trial and I would get like nothing before trial. I would, you know, I would get maybe lab report or I would for sure get lab reports if they exist. I say maybe because they didn't always exist, but I wouldn't get police statements. And what would happen is under Criminal Rule 16B 1G, as interpreted by a court case back then called Columbus vs Bee B E E, I would have the opportunity.

Can't believe they arrested a Bee on a sham.

Crazy. Must have been a real stinger. But nice. Anyway, the. So bad. My. That's a dad joke right there. Yeah. Anyway, my. They. We would. We would participate with the judge at the bench. Literally. We'd go to sidebar and the prosecutor would hand over 16B 1G material, and we'd all be huddled over it looking at it. And sometimes the judge would say, just give it to him. You know, let him look at it. Other times, the judges would stick by the rule. I had one judge one time. He is now deceased. But he said, nope, you're not allowed to look at it. I can look at it and I can tell you if there's inconsistencies. Columbus versus Bee, I reminded him, said, no, we, the defense, we get to participate in this process. At any rate, that's how it worked. Now, there's lots of doubters on Facebook about this. Let's go through these comments. I love it.

I think one of the big problem with the doubters is people have to remember this is Ohio, so we have different rules everywhere. I remember when we were working with the Indiana case how they have depositions in their criminal cases. Every state has their own little weird, quirky criminalization rules.

That is true. And I have practiced in several jurisdictions, federally in state courts, and it's always different. The general framework is the same, but it's always a little bit different. And remember, we're going back to pre2010. Can't believe I've been doing this this long, but I have. I started in 96, but pre2010. So let's go through some of these comments. We'll take it from the top. This is just the most relevant. This guy says, I don't understand it. The defense is always entitled to my reports and my notes. Weird. And then of course, another comment says, well, the clip says, before modern discovery rules. And the original commenter says, well, I've been doing this over 20 years. What's even the point? Well, the point is before 2010, we didn't get that stuff. And I think this commenter is probably a police officer, and that's that. So it's funny how, you know, there is a point to what I'm doing here other than just have fun with these comments. It's funny how we get Used to what the standard is now, and it just becomes our normal. Yeah. And when I even tell younger lawyers starting out criminal defense guys, they're like, what do you mean you didn't get police statements? Like, you didn't get witness statements. You didn't get them. Now, sometimes prosecutors would give them to us in advance. And another commenter, we'll just jump to this one. Actually, another commenter says, BS Incites Brady versus Maryland. I want to talk about that. There are certain statements we did get. If a witness provided information that was helpful to the defense or if there were inconsistent statements in the police file, then in theory, the prosecutor was supposed to give us those statements in advance because they would be relevant to the defense for impeachment. Brady vs. Maryland. U.S. supreme Court case says the prosecutor has to give us exculpatory information, information that helps us. And then there's another case called Giglio that says not only or exculpatory information includes evidence that we can use to impeach the government witnesses, meaning show that they're not being credible. One way you would do that, of course, is inconsistent statements. So we would be bickering prior to trial. Like, judge, I know for a fact there's no way that this witness didn't make multiple statements. And they got to be inconsistent. And we'd be arguing for the judge to review them in advance and give it to him. Like, we'd file Brady motions all the time. But just getting the police report, just getting the statement in and of itself is not covered by Brady. It was covered by the Ohio criminal rules. And for those geeks out there, the Ohio criminal rules are, quote, constitutional. There's something called the modern courts amendment in Ohio where the Supreme Court of Ohio gets to change the rules, not the legislative branch. But that's a. That's a rabbit hole we don't need to go into. We're actually working on that. That came up in another case we were working on. You don't remember. Anyway, so here we go. Let's go through some of these comments. I think they're great. This gentleman says, anyone get a copy of police report without even going to court? Foia, Freedom of Information Act. In Ohio, we call that a public records request. In federal court, they call that a Freedom of Information Act. You don't get investigated material, though. So anybody who's tried, like Epstein's a perfect thing.

We've done any cases before Austin, they send it all redacted. I remember the one video they sent. They only, like, unblurred this Portion of it was super small. And now also Ohio just changed that. We even have to pay for that now.

Well, now you have to pay because what's happening is the videos are. The storage for videos is insane. But yeah. And you don't get access to public. They're not public records until the case is done. And that means not just done at court and trial, but if there's an ongoing appeal, whatever it is, you can't get the public records. And certainly as a defense lawyer, I'm not going to get information that I wouldn't otherwise be entitled to in discovery. It doesn't mean. Now, there are situations where all the time I ask for public records when it's not directly related. So say you're a victim in a case or you're a witness in a case, Troy, and for whatever reason it's relevant that you've called the police before. You've been involved in something before. I'll do a. I'll do a freedom. I'll request public records on that and get that outside my case, because then nobody really knows. I mean, people know, but nobody really realizes what I'm getting. I can get access to information without having to file a subpoena, which is the other way. You can get some of these records. You file a subpoena, and I've done that before, and you end up going to court, you get in a big fight over whether we're entitled to it or not. Let's see. Literally ridiculous. The police report would have obviously been part of the discovery, says Jamie tate. Not before 2010. Yeah, it just wasn't. Now, you would get somewhat of a police report, but like you said, Troy, it'd be like blacked out. Now, here's what's interesting. This is pre Adobe Acrobat days. So, look, I'm really going back. We would get the prosecutors. There was somebody's job at the prosecutor's office was to sit there with a Sharpie and go and black out parts of the discovery. And then when they got smart, they would actually cut and cut paper and cover it up and tape it and then copy it. Because we'd be sitting there holding it up to the light and you could still see through the Sharpie. Like some of the statements that have been blacked out, we used to do that. And then every now and then they would screw up and they would send you the Sharpied version instead of the paperback version, instead of the one that they copied the Sharpie, and then you could actually literally see through it. So, I mean, look ridiculous. I agree. It was ridiculous. It sucked.

Sounds kind of fun, though. There was a little lore to it.

It made you know what it did, though, it really sharpened your trial skills because you would go into trial, by today's standard, completely unprepared. And it also made the old gumshoe private investigators all the more important. Like, we'd have to go out and interview witnesses and figure it out on our own. Or you'd be sitting there taking notes at trial. I'd be with my partner, the late, great Eric Yavich, and we'd be taking notes and we'd look at him, and I was like, did he really just say that we'll have to wait and get the 16B 1G material before we cross? You know, it's like. It's just. That's how it used to be. Now, Robert says this never happened and is only said for views. The police reports are given during discovery. The defense attorney also doesn't need a reason to get any and all data evidence from a prosecutor or police officer. And this is the guy who cites Brady versus Maryland. Sort of, but not really. It's true if the statements were exculpatory, I get them in Brady in theory. But there's the problem with Brady is the wolf is guarding the hen house and, you know, the prosecutor's job. I'm not saying they're all dishonest, but I am saying this. They don't have the perspective to look in my brain to know what I'm going to be using for my defense. And all too often the prosecutors say, well, I look at that, and that's not really helpful to them. All right, well, thanks, but with all due respect, I'd like to decide anyway. Now, Carlton Carrington says, I wouldn't let this guy defend me for sneezing in public. I mean, how are you supposed to defend a client without a police report? I agree. Discovery includes any and all written reports and notes. How's this? Some gotcha trick? And what they're talking about is what I used to do. The trick you're talking about is when the police would take the witness stand, I would ask them what they used to refresh their recollection. And if they said the police report that. And I get it, because not as discovery, but I'm entitled to see whatever the witness used to refresh his recollection. So trick. I don't know. Crafty maybe. I would defend you if you sneezed in public and you got charged for whatever it's worth. Vibes of A snake oil salesman. That may be a compliment for actually may be a little bit of a compliment.

Just change the slogan of the office.

Snake oil sold here to all juries. Yeah, again, look, I'm just having some fun here. I see the point everybody's making. And the point really is this what I said before. Things have changed so much and if you go turn the clock back even further, I mean, you would get even less. I'm sure I'm talking about my old days, but the old, old days of my mentors are even worse. And you know, it was just the wild west.

It seems a little more fun though. You just kind of go in there

and just like I said, man, it sharpened your skills because you'd have to go into court and you'd have to be ready to go. And it also, on some weird level, made our job a little easier prior to trial. And I'll tell you what I mean,

I mean it seems like you don't have that much prep where instead now we have, all right, here's the four terabytes of discovery.

And it's like, yeah, we get four terabytes of discovery and most of it is like video, police video or like body cam footage of witness state. We wouldn't have gotten that in the old days.

Cop at the vending machine, just his body cam still on.

I'm like, man, right, right. But it really, it would really sharpen your skills on your feet. You would have to think on your feet. So you and I talk all the time about how we're going to cross examine a witness on one thing or another. A lot of my technique was honed by this rule. You know, iron sharpens iron, whatever the saying. Like, because of this rule, I had to learn on the fly how to impeach a witness with limited material. And then at the last minute, here you go. And we'd be buzzing through it and we would, I would always, I can still see my notes. My cross examination notes would, would include the topics I wanted to cover with the witnesses. And then I would write a big PIs prior and consistent statement? 16B1G. And I would add that as a chapter in my cross examination. But I didn't know what was going to be there until I got it from the. After the witness testified. So look, believe me or not, that's fact.

Yeah.

And we know Google, this is before Google AI, but we know that's always true also. So all you have to do is check it out. 2010, the law changed for the better or worse. Like it or not, that's what it used to be, and that's what it is now. If you've got comments, I love them. Look, I don't care. I got thick skin. I'm a criminal defense lawyer. I'll be happy to sell whatever snake oil you need. All you have to do is ask, I promise. And I'll bill you for it. But anyway. Yeah, if you've got a question or comment you want us to cover something, go to LawyerTalkPodcast.com or leave it in the socials like these folks are doing. I'm happy to discuss it here.