Open Discovery Under Ohio Rules of Criminal Procedure

Last July the Ohio Supreme Court issued a revised Rule 16 of the Ohio Rules of Criminal Procedure. The amended rule provides for what is sometimes referred to as "open file discovery." The Ohio Public Defender's office prepared a report on the amendments to Rule 16. You can read this report by clicking here.

Ohio Supreme Court:Criminal Trial in Absentia Against Corporation Cannot Proceed in Municipal Court

Cleveland v. Washington Mut. Bank, Slip Opinion No. 2010-Ohio-2219.
Cuyahoga App. No. 91379, 2008-Ohio-6956. Judgment of the court of appeals affirmed, and cause remanded to the trial court.
Pfeifer, Lundberg Stratton, O'Donnell, Lanzinger, and Cupp, JJ., concur.
O'Connor, J., concurs separately.
Brown, C.J., not participating.
Opinion: http://www.supremecourt.ohio.gov/rod/docs/pdf/0/2010/2010-Ohio-2219.pdf

(May 26, 2010) The Supreme Court of Ohio today ruled that a state statute, which the city of Cleveland contended permitted a criminal trial in the absence of the defendant, does not apply to criminal trials against corporations in municipal court initiated by affidavit or complaint.

After failing to make ordered repairs to properties it owned in Cleveland and failing to appear at multiple hearings, the Cleveland Municipal Court found Washington Mutual Bank guilty of building and housing code violations and imposed a fine of $100,000. A three-judge panel of the Eighth District Court of Appeals overturned the housing court’s judgment and vacated the fine against the property owner. The City of Cleveland appealed and the Supreme Court agreed to take the case.

In an opinion authored by Justice Robert R. Cupp, the Court noted that R.C. 2941.47 only refers to a criminal case against a corporation instituted by indictment or information in common pleas courts not a misdemeanor prosecution instituted by complaint or affidavit in municipal courts.

“Because this criminal prosecution was brought by affidavit or complaint in municipal court rather than by indictment or information in common pleas court, R.C. 2941.47 does not apply,” Justice Cupp wrote.

Justice Cupp wrote that the cases cited by the city to prove its authority do not concern similar circumstances to this case. He also pointed out that the question of “whether R.C. 2941.47 provides for a trial of a corporation in absentia in proceedings other than those brought by affidavit or complaint in a municipal court” is not before the Court in this case.

The Supreme Court affirmed the appeals court judgment and remanded for further proceedings.

Justice Cupp’s opinion was joined by Justices Paul E. Pfeifer, Evelyn Lundberg Stratton, Terrence O’Donnell and Judith Ann Lanzinger.

Justice Maureen O’Connor concurred separately and urged the General Assembly to study the problem of high rates of foreclosure in urban neighborhoods dominated by absentee landlords who permit properties to go into ruin and decay. “City prosecutors working in municipal and common pleas courts must have a mechanism through which they can constitutionally provide notice to landlords but proceed with trial in absentia if a landlord fails to respond to defend the claim. Legislative modification of R.C. 2941.47 to permit a municipal court to proceed in absentia is one manner in which this goal can be accomplished.”

Chief Justice Eric Brown did not participate in the Court’s deliberations or decision in the case.

Contacts
Karyn J. Lynn, 216.664.4504, for City of Cleveland.

Vladimir P. Belo, 614.227.2300, for Washington Mutual Bank.

Please note: Opinion summaries are prepared by the Office of Public Information for the general public and news media. Opinion summaries are not prepared for every opinion released by the Court, but only for those cases considered noteworthy or of great public interest. Opinion summaries are not to be considered as official headnotes or syllabi of Court opinions. The full text of this and other Court opinions from 1992 to the present are available online from the Reporter of Decisions. In the Full Text search box, enter the eight-digit case number at the top of this summary and click "Submit."

Ohio Supreme Court: Criminal Complaint ‘Filed’ When Deposited With Clerk

Zanesville v. Rouse, Slip Opinion No. 2010-Ohio-2218.
Muskingum App. No. CT08-0035, 2009-Ohio-2689. Judgment of the court of appeals reversed, and judgment of the trial court reinstated.
Pfeifer, Lundberg Stratton, O'Connor, Lanzinger, and Cupp, JJ., concur.
O'Donnell, J., concurs separately.
Brown, C.J., not participating.
Opinion: http://www.supremecourt.ohio.gov/rod/docs/pdf/0/2010/2010-Ohio-2218.pdf

(May 26, 2010) The Supreme Court of Ohio today ruled that a document is “filed” when it is deposited properly for filing with the clerk of courts. The Supreme Court also ruled that even when a document lacks a clerk’s endorsement indicating it has been filed, filing may be proved by other means.

The case centers on whether a domestic violence case was validly filed with the clerk of the Zanesville Municipal Court. The clerk accepted the document and placed the document in a case file, but did not physically place a date stamp on the complaint document.

In the Court’s 6-0 decision, authored by Justice Judith Ann Lanzinger, she wrote: “We observe, however, that the filing of a document does not depend on the performance of a clerk’s duties. … The clerk’s duty to certify the act of filing arises only after a document has been filed.”

Justice Lanzinger pointed to several Supreme Court cases and the Rules of Superintendence that differentiate filing and certification of filing by the clerk. “In short, the time or date stamp does not cause the filing, the filing causes the certification,” she summarized.

As to situations when a document lacks an endorsement from a clerk, Justice Lanzinger wrote of other means available to prove a filing in this case.

“When the named defendant filed his motion to dismiss based upon lack of jurisdiction, Zanesville responded with a brief and exhibits including a printout of the electronic docket sheet and an affidavit from the clerk of courts as proof that the case had been filed. The clerk’s affidavit explains that it is clear from her records that the complaint was filed on February 28, 2006, because the electronic docket for this case indicates a ‘filing date’ of February 28, 2006. Furthermore, it was the clerk’s practice to create a new case file and corresponding electronic docket upon receipt of a complaint, and such a file and docket was created.”

The Supreme Court reversed the appeals court’s judgment and reinstated the trial court’s judgment.

Justice Lanzinger’s opinion was joined by Justices Paul E. Pfeifer, Evelyn Lundberg Stratton, Maureen O’Connor and Robert R. Cupp.

Justice Terrence O’Donnell concurred separately, writing he would reverse the appeals court’s judgment based on the holding in King v. Penn, “which stands for the proposition that ‘[w]hen a paper is in good faith delivered to the proper officer to be filed, and by him received to be kept in its proper place in his office, it is ‘filed.’ The indorsement upon it by such officer of the fact and date of filing is but evidence of such filing.’”

Chief Justice Eric Brown did not participate in the Court’s deliberations or decision in the case.

Contacts
Scott T. Hillis, 740.455.3350, for the City of Zanesville.

Elizabeth N. Gaba, 614.586.1586, for Ronald Rouse Jr.

Please note: Opinion summaries are prepared by the Office of Public Information for the general public and news media. Opinion summaries are not prepared for every opinion released by the Court, but only for those cases considered noteworthy or of great public interest. Opinion summaries are not to be considered as official headnotes or syllabi of Court opinions. The full text of this and other Court opinions from 1992 to the present are available online from the Reporter of Decisions. In the Full Text search box, enter the eight-digit case number at the top of this summary and click "Submit."

Ohio Supreme Court Clarifies Process for Correcting Sentence Where Multiple Punishments Imposed for ‘Allied Offenses’

State v. Whitfield, Slip Opinion No. 2010-Ohio-2.
Cuyahoga App. No. 90244, 2008-Ohio-3150. Judgment of the court of appeals reversed, and cause remanded to the trial court.
Moyer, C.J., and Lundberg Stratton, O'Connor, O'Donnell, and Cupp, JJ., concur.
Pfeifer and Lanzinger, JJ., dissent.
Opinion: http://www.supremecourt.ohio.gov/rod/docs/pdf/0/2010/2010-Ohio-2.pdf

(Jan. 5, 2010) In a 5-2 decision announced today, the Supreme Court of Ohio clarified the procedures to be followed by Ohio courts in correcting criminal sentences in which a defendant has improperly received multiple punishments for convictions that should have been merged as “allied offenses of similar import.”

The majority opinion, authored by Justice Maureen O’Connor, held that when a court of appeals finds reversible error in the imposition of multiple punishments for allied offenses:

The state retains the right to choose which of the allied offenses to pursue on a remand to the trial court.
A court of appeals must reverse the judgment of conviction and remand for a new sentencing hearing at which the state must choose which allied offense it will pursue against the defendant.
Because R.C. 2941.25(A) protects a defendant only from receiving multiple punishmentsfor allied offenses, the determination of the defendant’s guilt for committing allied offenses remains intact, both before and after the allied offenses have been merged for sentencing.
NOTE: This is one of two separate decisions announced today addressing the proper application of R.C. 2941.25, Ohio’s “allied offense statute.” See also Case Nos. 2008-2133 & 2008-2228, State v. Underwood.

Darnell Whitfield of Cleveland was indicted on multiple charges and found guilty of possession of illegal drugs, drug trafficking, having a weapon while under a disability and carrying a concealed weapon, with a firearm specification attached to each of those charges. The trial court entered convictions on all charges and specifications, and sentenced Whitfield to concurrent three-year prison terms on all counts, plus an additional one year for the firearm specifications.

Whitfield appealed, arguing that drug possession and drug trafficking are “allied offenses of similar import,” and that under Ohio’s multiple-count statute, R.C. 2941.25(A), a trial court must merge guilty verdicts for allied offenses into a single conviction and impose a single sentence for that conviction. The court of appeals agreed and entered a judgment in which it reversed Whitfield’s conviction for drug possession and remanded the case to the trial court with instructions to vacate the drug possession conviction and the sentence imposed for it. The state sought and was granted Supreme Court review of the court of appeals’ decision.

In today’s majority opinion, Justice O’Connor wrote: “This appeal poses two questions: (1) What exactly does R.C. 2941.25(A) prohibit when it states that a defendant may be ‘convicted’ of only one of two allied offenses? and (2) When a sentencing court violates this prohibition, what is the proper procedure on remand? We have little trouble with the first question. Our past decisions make clear that for purposes of R.C. 2941.25, a ‘conviction’ consists of a guilty verdict and the imposition of a sentence or penalty ... We now turn to the second question: When a sentencing court violates R.C. 2941.25(A) by convicting a defendant of two allied offenses and then sentencing the defendant on both, what is the proper procedure on remand?”

“ … (O)ur precedent, including cumulative-punishment cases that predate the 1972 enactment of R.C. 2941.25(A), makes clear that a defendant may be found guilty of allied offenses but not sentenced on them. ... In cases in which the imposition of multiple punishments is at issue, R.C. 2941.25(A)’s mandate that a defendant may only be ‘convicted’ of one allied offense is a protection against multiple sentences rather than multiple convictions. ... In this case, the court of appeals properly corrected the trial court’s error in sentencing Whitfield for the allied offenses of drug possession and drug trafficking. But the court of appeals erred in ordering that this case be ‘remanded to the trial court with instructions to vacate the conviction and sentence for drug possession only.’

“The General Assembly has made clear that it is the state that chooses which of the allied offenses to pursue at sentencing, and it may choose any of the allied offenses. ... In conferring that right on the state, the legislature did not specify when the state must make that election. The Legislative Service summary states that ‘the prosecution sooner or later must elect as to which offense it wishes to pursue,’ ... thereby implying that the state has latitude in determining when to decide which offense to pursue at sentencing. In light of the legislative history, we concluded previously that the statute does not require the state to make its election prior to trial ... We see nothing in the language of R.C. 2941.25(A) that would deny the state the same right on remand. ... As the state asserts, by enacting R.C. 2941.25(A), the General Assembly condemned multiple sentences for allied offenses, not the determinations that the defendant was guilty of allied offenses. Because R.C. 2941.25(A) protects a defendant only from being punished for allied offenses, the determination of the defendant’s guilt for committing allied offenses remains intact, both before and after the merger of allied offenses for sentencing. Thus, the trial court should not vacate or dismiss the guilt determination. ... For the reasons set forth herein, we reverse the decision of the court of appeals and remand this cause to the trial court for further proceedings consistent with this opinion.”

Justice O’Connor’s opinion was joined by Chief Justice Thomas J. Moyer and Justices Evelyn Lundberg Stratton, Terrence O’Donnell and Robert R. Cupp.

Justice Judith Ann Lanzinger entered an opinion, joined by Justice Paul E. Pfeifer, in which she dissented from the majority holding that R.C. 2941.25(A) does not mandate vacating both the separate determination of guilt and the separate sentence imposed on a defendant for separate counts that qualify as allied offenses.

She wrote: “In State v. Brown (2008) … this court acknowledged that R.C. 2941.25 is a legislative attempt to codify the judicial doctrine of merger, i.e., the principle that ‘a major crime often includes as inherent therein the component elements of other crimes and that these component elements, in legal effect, are merged in the major crime.’ … Although the majority acknowledges the merger doctrine, it inexplicably holds that the separate determination of the defendant’s guilt on each allied offense remains intact, both before and after merged sentencing. This holding contradicts the concept of merger. … Once the state elects which allied offense it will pursue, that decision should be final, and the trial court should dismiss the other allied count. If the court of appeals reverses the judgment of conviction, the state should not be given a second chance to convict on the charge merged. By holding that the determination of guilt remains undisturbed after the merger of the allied offenses, the majority focuses on the prohibition against multiple punishments for the same offense, but ignores the equally important double jeopardy protection against successive prosecutions for the same conduct. I respectfully dissent.”

Contacts
Lisa Williamson, 216.348.4460, for the state and Cuyahoga County prosecutor’s office.

Spencer Cahoon, 614.466.5394, for Darnell Whitfield.

Please note: Opinion summaries are prepared by the Office of Public Information for the general public and news media. Opinion summaries are not prepared for every opinion released by the Court, but only for those cases considered noteworthy or of great public interest. Opinion summaries are not to be considered as official headnotes or syllabi of Court opinions. The full text of this and other Court opinions from 1992 to the present are available online from the Reporter of Decisions

Computer Evidence

EDITOR’S NOTE: The case referred to is: State v. Rivas, 121 Ohio St.3d 469, 2009-Ohio-1354. Case No. 2007-1611. Decided March 31, 2009. Majority opinion written by Justice Terrence O’Donnell.

By Ohio Supreme Court Justice Paul Pfeifer
On January 3, 2005, Detective Alonzo Wilson, a member of the Xenia Police Division’s Internet Child-Protection Unit, logged onto an Internet chat service posing as a 14-year-old female named Molly. A man named Jose Rivas – using the screen name JRivas123 – contacted “Molly” asking for her age, gender, and photograph.

The two carried on an online conversation, and eventually Wilson e-mailed Rivas a teenage photo of a Xenia police detective. Rivas e-mailed Molly an explicit photo which, he claimed, was of him. He then propositioned her and offered her $200 to engage in sexual activity with him. Rivas eventually arranged to meet Molly at a hotel. After police observed Rivas checking in, Wilson arrested him.

Prior to trial, Rivas filed a motion to preserve the state’s electronic evidence and he sought a mirror image of the hard drive of the state’s computer used by Wilson to communicate with him. The trial court ordered the state to allow Rivas to inspect the computer, but the prosecution refused to allow the defense to retrieve a mirror image of the hard drive, citing “security reasons.” The prosecution did provide a transcript of the conversations and a compact disc containing an electronic copy of the online communications.

Rivas then filed a motion to suppress the computer-generated evidence and to compel the state to provide a mirror image of the computer hard drive. But the trial court denied the motion, concluding that Criminal Rule 16 – one of the rules that govern the proceedings of a trial – did not require the state to produce an exact copy of its computer hard drive “in the absence of allegations and some evidence that what has been provided is not accurate.”

The jury found Rivas guilty of importuning and attempted unlawful sexual conduct with a minor, but both convictions were reversed on appeal. The court of appeals concluded that the trial court had violated Rivas’s right to a fair trial when it refused him the opportunity to verify the accuracy and completeness of the computer transcripts prepared by the state.

After the court of appeals ruling, the case came before us – the Supreme Court of Ohio. Essentially, the case came down to this question: Did Rivas have a right to the mirror image of the hard drive? By a four-to-three vote, the majority of our court determined that he did not.

The previously mentioned Criminal Rule 16 permits the accused to inspect tangible evidence that is material to the preparation of his defense. But the majority concluded that in order to inspect the hard drive, Rivas was required to make a prima facie showing – meaning at first appearance, before investigation – that the information in the transcript was false, incomplete, adulterated, or spoliated.
The majority maintained that in other cases in which the accused claimed that the government withheld or destroyed evidence, our court has determined that the burden of proof falls on the party alleging spoliation.

But three members of our court disagreed with this conclusion. Chief Justice Thomas J. Moyer, Justice Robert R. Cupp, and I cast dissenting votes because the majority’s holding contrasted with the plain language of Criminal Rule 16 and because appropriate mechanisms otherwise exist within the Criminal Rules to safeguard information not relevant to the defendant’s defense.

In a dissent that Chief Justice Moyer and I joined, Justice Cupp wrote, “There is no requirement in the discovery provisions of the Criminal Rules that a defendant who wishes to verify the accuracy of the printed version of electronic data stored on a state’s computer hard drive must first make a prima facie showing that the state provided false, incomplete, adulterated, or spoliated evidence.

“Although defendant’s basis for asserting a discrepancy between the printed version of the data and the version that resides on the computer hard drive may seem unusual, there is no justification for creating, as the majority opinion does, a permanent judicial gloss over the plain language of the discovery rules to short-circuit defendant’s discovery request.”

The only limitations in the Criminal Rule are that evidentiary materials must be in the state’s possession and must be (1) material to the preparations of defense, (2) intended for use by the prosecuting attorney as evidence at the trial, or (3) obtained from or owned by the defendant.

In this case, the hard drive was in the state’s possession and was material to Rivas’s defense theory. In contrast to the majority’s holding, nothing in the text of the Criminal Rule requires a defendant to demonstrate any threshold indicating the unreliability of the challenged evidence in the state’s custody.

The trial court should have ordered the state to produce the hard drive for Rivas’s inspection. As the court of appeals recognized, “forcing a litigant to rely upon an adverse party’s representation that a transcript” is accurate without allowing any verification of that accuracy is inconsistent with general notions of a fair trial.

True, the state has legitimate reason to prevent Rivas unrestricted access to the data on the computer, but the methods by which a court may limit access to only the information needed for his defense are delineated in the Criminal Rules as well. The state can use protective orders and restrictions on the time, place, and manner of the inspection and copying of evidence.

The exact form of protective measure is a decision best left to the sound discretion of the trial court, but the fact remains that such a safeguard exists within Criminal Rule 16.

“Rather than improvising a standard that is unsupported by the plain language of the criminal rule and likely to have unforeseen consequences,” Justice Cupp concluded, “we should hold that the safeguards specially contemplated by the rule should be used to prevent disclosure of information not relevant to a defendant’s defense.”

Nevertheless, despite our dissent, the majority decision holds sway. According to the majority, Rivas failed to meet his burden of proof, and the state complied with its obligations. We therefore reversed the judgment of the court of appeals.

Rule Amendments Proposed by the Ohio Supreme Court

These are proposed Rule Amendments that were put up for public comment by the Ohio Supreme Court. The comment period ended on November 18, 2008. The information below was obtained from the Ohio Supreme Court website. Rule amendments have to be presented to the Ohio General Assembly by January 15, 2009, and can be revised by the Ohio Supreme Court up until May 1, 2009. Those revisions filed by the Ohio Supreme Court with the Ohio General Assembly by January 15, 2009, and not withdrawn prior to May 1, 2009, are effective July 1, 2009, unless the General Assembly adopts a concurrent resolution of disapproval.

PROPOSED AMENDMENTS TO THE OHIO RULES OF APPELLATE PROCEDURE,OHIO RULES OF CRIMINAL PROCEDURE, and OHIO RULES OF CIVIL PROCEDURE

Comments requested: The Supreme Court of Ohio will accept public comments until November 18, 2008 on the following proposed amendments to the Ohio Rules of Appellate Procedure (4 and 43), Ohio Rules of Civil Procedure (4, 4.1, 4.2, 4.3, 4.4, 4.5, 4.6, 33, 36, 47 and 86), Ohio Rules of Criminal Procedure (24, 32 and 59), and Ohio Rules of Juvenile Procedure (25 and 47)

Comments on the proposed amendments must be submitted in writing to Jo Ellen Cline, Government Relations Counsel, Supreme Court of Ohio, 65 South Front Street, 7th Floor, Columbus, Ohio 43215-3431 or ClineJ@sconet.state.oh.us and received no later than November 18, 2008. Please include your full name and regular mailing address in any comment submitted by e-mail. Copies of all comments submitted will be provided to each member of the Commission on the Rules of Practice and Procedure and each justice of the Supreme Court.

Pursuant to Article IV, Section 5(B) of the Ohio Constitution, proposed amendments to rules of procedure must be filed with the General Assembly by January 15 each year. The Commission on the Rules of Practice and Procedure and the Court will consider all comments received during this first comment period and may modify, add, or withdraw proposed amendments before filing with the General Assembly. Any proposed amendments that are filed with the General Assembly in January 2009 will then be republished for a second comment period and may be further revised by filing revisions with the General Assembly prior to May 1, 2009. Those amendments filed with the General Assembly in January 2009 and not withdrawn prior to May 1, 2009 will take effect on July 1, 2009, unless prior to that date the General Assembly adopts a concurrent resolution of disapproval.

The proposed amendments were recommended to the Supreme Court by the Supreme Court Commission on the Rules of Practice and Procedure, and the Court is seeking comments on the proposed amendments prior to filing any amendments with the General Assembly. Publication for comment at this time does not indicate that the Supreme Court endorses or will approve for filing with the General Assembly any or all of the proposed amendments.

A Staff Note prepared by the Commission on the Rules of Practice and Procedure follows some amendments. Although the Supreme Court uses the Staff Notes during its consideration of proposed amendments, the Staff Notes are not adopted by the Court and are not a part of the rule; they represent the views of the Commission on the Rules of Practice and Procedure and not necessarily those of the Supreme Court. For these reasons, the Staff Notes are not filed with the General Assembly but are included when the proposed amendments are published for comment and are made available to the public and to legislative committees.

Following is a summary of the proposed amendments. In addition to the substantive amendments, nonsubstantive grammar and gender-neutral language changes are made throughout any rule that is proposed for amendment.

Appellate Rule 4

The Commission recommends an amendment to Appellate Rule 4 to correct cross-references to both the Ohio Civil Rules of Procedure and the Ohio Rules of Juvenile Procedure. In 2006, the Court adopted amendments to Civ. R. 53 and Juv. R. 40 regarding magistrates. As a part of those amendments divisions in those rules regarding action on a magistrate’s decision by the Court were renumbered. The proposed amendments correct the cross-references to state the appropriate divisions.

Civil Rules 4 through 4.6

The Commission recommends proposed amendments that would require the plaintiff to make service of process rather than the clerk. The key amendments recommended are as follows:

• Civ. R. 4(A): The clerk issues the summons and delivers it to the plaintiff. The serving party’s postage paid is charged to costs upon presentation of proof. Service by certified mail is deemed complete on the date the return receipt was signed if the plaintiff files proof of service before the answer day. Otherwise, service is deemed complete on the date the plaintiff files proof of service.

• Civ. R 4(B) & (C): Personal and residence service continue to be the duty of the sheriff, bailiff or specially appointed adult. Personal and residence service are deemed complete on the date of service if proof of service is filed prior to the answer day. Otherwise, service is deemed complete on the date proof of service is filed.

• Civ. R. 4.2(G): A provision is added for service on a limited liability company.

• Civ. R. 4.3: Amendments that correspond to those governing in-state service are made to the provisions for service outside of the state.

• Civ. R. 4.6 (C) & (D): The provision for service by ordinary mail if certified mail within the state is “refused” is expressly stated as applicable to service outside the state. The provision for service by ordinary mail if certified mail is “unclaimed” is eliminated.


Civil Rules 33 and 36

In 2004, the Court adopted amendments to Civ. R. 33 and 36 requiring parties propounding interrogatories and requests for admissions to provide the responding party both a written and electronic copy. The amendments adopted, however, did not include a consequence for failing to provide the electronic copy.

The Commission recommends amendments to Civ. R. 33(A) and 36(A) to clarify that the period for responding to interrogatories and requests for admission, which is designated by the propounding party and cannot be less than twenty-eight days, shall run from the day of service of the printed copy of the interrogatories, and that the failure to provide an electronic copy does not alter the response period. However, if the responding party requests that the period be enlarged pursuant to Rule 6(B) because the propounding party has not provided an electronic copy, that reason shall constitute good cause for granting the requested extension, and the court’s order may require that an electronic copy be provided.

The amendment is intended to enforce the duty of the party propounding interrogatories and requests for admissions to provide an electronic copy while prohibiting the responding party served with a printed copy to use the failure to receive an electronic copy as reason to disregard the response time designated in the printed copy.

Civil Rule 47

The Commission recommends amendments to Civ. R. 47 clarifying that alternative methods of jury selection are permissible. The Court amended Civ. R. 47 in 2006; however, language retained in the rule arguably only allows for use of the “strike and replace” method of jury selection. The proposed amendments delete the unnecessary language in Civ. R. 47(C) suggesting that the prospective jurors must be empanelled prior to questioning. The proposed amendments also remove language from Civ. R. 47(B) to make clear that both the “strike and replace method” and the “struck” method are permitted.

Criminal Rule 24

Identical to the proposed amendment to Civ. R. 47, the Commission recommends amendments to Crim. R. 24 to delete language suggesting that prospective jurors must be empanelled prior to questioning. The proposed amendments also remove language to make clear that both the “strike and replace method” and the “struck” method are permitted.

Criminal Rule 32

In response to the Court’s decision in State v. Baker, 2008-Ohio-3330, the Commission recommends an amendment to Crim. R. 32(C) to clarify that a judgment of conviction must set forth the guilty plea, verdict, or findings upon which to conviction is based and the sentence.

Juvenile Rule 25

The Commission recommends amendments to Juv. R. 25 that clarify how depositions are to proceed in juvenile courts. Juvenile courts consider a wide variety of cases including those prosecuted by the State, e.g. delinquency and unruly child offenses, which are analogous to criminal cases. Juvenile courts also hear dependency, neglect and abuse actions and actions to permanently terminate parent’s rights which are civil cases. Their jurisdiction also includes private custody cases and parentage actions.

The proposed amendment will bring some measure of uniformity to depositions. Under the current rule, depositions in custody and parentage actions may only take place upon a showing of “good cause”. Domestic relations courts also hear parentage actions and, in those cases, depositions are conducted pursuant to the Rules of Civil Procedure.

The proposed amendments require depositions in parentage and custody proceedings be conducted pursuant to the Rules of Civil Procedure. The Rules of Civil Procedure would also control depositions taken in post-dispositional matters to which the State is no longer a party. This recognizes that dependency, neglect and abuse cases, as well as custody and parentage cases frequently involve a considerable amount of post-decree litigation when the State is no longer involved. Finally, the proposed amendments state that depositions in delinquency cases, abuse-type actions and other proceedings not covered by other provisions of the rule will be conducted only to preserve testimony in limited circumstances.