All right, Lawyer Talk Off The Record, on the air, taking questions so Q and A style today. By the way, the questions are coming left. We can't even keep up with all the questions. But anyway, we are going to try to catch up a little bit today. We got Brian. What's Brian have to ask?

Brian's asking just a simple question. Do I have a right to request a copy of discovery from my attorney?

A right to request a copy? Yes, you absolutely have a right to. In fact, you should request a copy of your discovery from your attorney. But as always, we're going to take this a little bit deeper.

Yeah. So does the attorney have to automatically turn over everything or is it more like a wait till the request comes in?

The attorney in the. So I guess here's how it works. We're going to do the end part first.

Okay.

I have discovery and you're my client. I immediately share that with you. I get to. Or at least, I mean, I can't say I haven't dropped the ball at times and it wastes a couple days. But as soon as I receive discovery, I will share with my client. And the reason I do that is because it's your case. Yeah, it's like I'm defending you. And who else knows more about the case than my client? And what I would do is I would. Now, it used to be I would draft a letter, please find and close a copy of the state's response to our demand for discovery in your case. Please review and contact me with thoughts and questions. Sincerely, Stephen E. Palmer. Now, it's just we got electronic system. It shoots over to you automatically. You get a PDF of it. And I encourage my clients to review it and give me comments on it, even redlining at times, and go through it in detail. Now is do you. I guess the question is, do you have a right to it? I mean, there's no constitutional right for you to have to force your lawyer to give you discovery. But I will tell you what, I don't think I'm doing my job ethically, professionally, if I'm not sharing discovery with my client and getting feedback and input.

One of the things I thought of whenever I first read this was we have counsel only discovery. I've noticed that. How do you. How does it determine what is actually handed over to the client, what cannot be handed over to the client?

I guess. All right, so now we're getting into the deeper part of this. In Ohio, we have something called council only discovery. What the heck is counseling discovery? Well, the prosecutor's office reviews the discovery response. And let's talk about what that typically would be. We would get any witness statements in Ohio anyway. We'll talk about how that changes in federal court and other jurisdictions. But in Ohio, we'll get witness statements, meaning if some eyewitnesses wrote out statements, we get copies of those statements. If. If witnesses gave verbal statements to the police, we get the recordings, we get body cam footage by cops. Now, look, you would say we used to think that it would be awesome if all cops were body cam. And I suppose it is awesome. But then you get 15 or 20 hours of body cam footage in a case spread over four or five officers investigating it, and it gets, you know, it gets voluminous. But we get those recordings, we get any results of tests, scientific or otherwise. So if there's fingerprints, we'll get the fingerprint results. If there's DNA, we get the DNA, not only the results. And we can request all the bench and lab notes. We get any photographs, if the police took pictures at the scene, if there's videos of the scene, we get that. We have pretty comprehensive discovery here in Ohio. Now, sometimes under. Well, not sometimes under Ohio law now, the prosecutor can designate certain things counsel only. The idea behind this was to protect victims from sense of inference. So if you have a. An alleged rape victim, you don't want to. You don't want to supply the client with certain information about that alleged victim in order to protect the victim. Now, look, I'm not saying I agree with this, not even necessarily saying I disagree with it, but this is the Ohio law. Now, the problem we've run into is you get a little counsel only happy out of the prosecutor's office at times, and they designate everything counsel only, or most of it, some stuff that doesn't make any sense at all. And it's marked counsel only. I have had situations in Ohio where I say, look, judge, they've marked this counsel only. I can't defend this case without input from my client. I got to share it with them, and I get an order to permit me to do that. Sometimes it's more complicated. It's counsel only. And say you're doing an alleged. Some sort of abuse on a child. We're defending the perpetrator or whoever's accused of it. And we get something called a child forensic interview. And what's that? Now, you know, they don't teach you this in law school, but now you

do not teach us. It's the sane interview. It's pretty much the first time the kid Gives a full disclosure on what happened. And they do it like in a controlled environment, recorded with trained interviewers at a children's hospital.

All right, so sane interview is called a sexual assault nurse examination. But it's like what we're really talking about is a forensic interview. And there are these people who ostensibly are trained to ask questions of children in cases in a way that doesn't overly suggest what the answer should be, doesn't contaminate the response of the kids. And there's all these written protocols, not going to dive into that. But typically those are more counsel only, which creates a problem because look, I would immediately want my investigator or my expert. We work routinely with a child psychologist and I send up the interview to my expert and say, look, did these people follow the proper protocol in doing the forensic interview? And. And a lot of times they don't. In fact, most of the time they don't. At least not perfectly. Now, I would often have to go. Almost always I have to go to a judge and say, look, I need an order permitting me to release this to my expert. And they've marked it counsel only. And almost always I can get that. Now, sharing that with my client, that gets a little more dicey. So back to your question. Things that are counsel only. It's those types of things that are counsel only. What do I do with my client when it's counsel only? Some lawyers look at it very literally and they don't share any of it with their client. Some lawyers say, this is a bunch of nonsense. I'm going to share all of it with my client. I don't care, sue me later or whatever. I think I not only have a right, but an obligation, if not to share the actual documents with my client, to at least discuss what's there and get input when I need it. And that's how I handle this. And if there's something that I think absolutely, I need my client to see, I'll ask for an order from the judge. And typically that's. I can get that granted. Look, we have a constitutional right to defend allegations against us. And you know, in this day and age, there's a lot. There's a little push and pull on this. Victims rights amendments, perfect example. So the victims have rights. And we run into this dilemma where when do victims rights collide with our constitutional right to defend ourselves at trial? Which means things like having access to the discovery, getting exculpatory evidence, being able to confront your accusers in a courtroom, being able to subpoena like we have Those rights. So it gets this. There's more of this coming.

Yeah, absolutely.

But anyway, back to Brian's question here. Is it Brian? Yeah, Brian, back to Brian's question here. Yes, you have a right to your discovery, but it's not really a right. You should get your discovery. You should review it. You're permitted to review. And at least I can't talk about what other lawyers do. I can tell you what I do upstairs. Check us out. Palmer Legal Defense, by the way. I can tell you what I do. If you're my client, you get the discovery. At least the discovery you're permitted to get. And I want you to review it and comment and some of it. Look, if no other reason. I get this all the time. If clients will come to me and they got their head in the sand, they don't want to know anything about it. And I'll tell them, look, it's in the discovery. And they say, well, I haven't reviewed it. Or you get this accusation, you didn't give it to me. I'm like, well, look, I sort of did. Here it is, right here. You've had access to it since day one. Please review.

Look, that's a plus side of the digital size. We can actually see if they reviewed it, which is kind of nice compared to just sending it over in the flash drive or something like that.

Yeah, yeah. And look, I think it is easy when you're charged with a crime, even if you're not guilty. I think even maybe more so if you. If you felt like you did something wrong, it's easy to say, look, I don't want anything to do with it. Just take care of it. I don't want to see it. I'm going to stick my head in the sand. And what often I do when I represent folks is like, part of the process is, look, man, wake up, open your eyes. We have to do this. We have to do it. I can't put you under anesthesia throughout the whole process. You're going to have to deal with some of this. I need you to review this discovery. I need you to look at it with me, and I need you to understand why if I can't defend the case at a jury trial, that's the situation. You may have no defense. And if you don't understand why, you're never going to get your head around the result of the case. On the other hand, there may be stuff there. Believe it or not, I didn't. I wasn't there when this thing, whenever the incident happened. And you were. You can probably tell me some stuff that'll be helpful. I want to hear it. I may not what you think is helpful may not be what I think is helpful, but at least you know your attorney knows everything. And at least I know as the attorney, you know everything. That's how the process works. All right, look, I think that answers the question. If you got a follow up or if you got more, please let us know. LawyerTalkPodcast.com you can submit a question there or. Or do it right here in the socials, in the comments, off the record, on the air. Till next time.