91 Ohio Law. Abs. 125 | Oh. Ct. Com. Pl., Scioto | 1963
This cause came on for hearing upon motion
The memorandum in support of said motion filed by the defendant reveals the leading decisions handed down by our sister states. The defendant has also treated in detail the position which the state of Ohio occupys with respect to the immediate question. Also before the court is the memorandum submitted by the prosecutor which cites State v. Sharp, 162 Ohio St., 173, as being determinative of the issue.
The court is of the opinion that the defendant has correctly stated the issue, to wit: May a defendant before trial, where the circumstances are such as are outlined in defendant’s motion and affidavit, be permitted to inspect and copy notes and or their transcriptions or to require the prosecution to furnish copies of said notes and or the transcriptions thereof, which are statements takeri from the defendant?
In the Sharp case, the court stated at 184, “Our courts have uniformly held that the defendant is not entitled to a copy of an alleged confession in the hands of the prosecuting attorney before trial. . .” (Emphasis added.) From a careful reading of the Sharp case, this court believes that that decision does
Realizing that “substantial justice” is. a broad concept which is not easy of definition, this court would lay down the following guides. Where a defendant seeks such an inspection it is necessary that he, by affidavit, state that he cannot recall the contents of his statement or statements. Further, he must state the circumstances giving rise to his claim that he cannot recall the contents thereof. Finally, where the defendant has retained counsel, the request must be made seasonably before trial. The circumstances of each case will govern. This opinion is limited to such an inspection of statements, confessions and admissions of the defendant and shall not be construed otherwise.
It is proper at this point to make final comment upon the decision of the Sharp case which is distinguishable from the instant case. There the defendant did not file an affidavit enumerating the reasons or grounds constituting a basis for the relief sought. Nor does it appear that in the trial court the defendant stated any such grounds in his motion. On the contrary, the defendant merely demanded certain transcripts and stated they contained statements by the defendant. It is also questionable whether the defendant made a seasonable request before trial.
While this court holds that it is within the discretion of the trial judge to allow such an inspection, where it is required by substantial justice, it also recognizes that there is an alternative ground upon which to predicate such a holding. Mr. Justice Zimmerman, speaking for the majority of the court in State
It is noteworthy that the Sharp case is silent concerning the applicability of the civil statutes in criminal cases. This points up the fact that the Supreme Court of Ohio has not abrogated the discretion of the trial court in such matters. The result spoken of by Mr. Justice Zimmerman in Fox is in accordance and not in conflict with the present holding, however, the court prefers in the instant case to rest its holding upon the premise that the trial court has discretion to see that substantial justice is done.
THEREFORE, it is ordered and adjudged that the Scioto County Prosecutor shall immediately furnish to counsel for the defendant any and all documents in the possession and under the control of the prosecutor or law enforcement agencies, which documents are statements taken from the defendant. This order shall apply to longhand and shorthand notes, whether signed or unsigned by the defendant. Further, this order shall apply to any transcriptions thereof whether signed or unsigned by the defendant.
An entry may be drawn accordingly by counsel for defendant.