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What They Have To Hand Over

Ohio Crim.R. 16 and Brady — one runs on a demand, the other does not

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Two separate duties control what the state turns over in a criminal case, and they behave differently. One is a procedural rule that starts when somebody asks. The other is constitutional and does not wait to be asked. People who only know about the first one are usually surprised by what the second one covers.

  • On receipt of a written demand for discovery, the prosecuting attorney provides copies of, or access to, the items the rule lists.
  • Those items include any written or recorded statement by the defendant or a co-defendant, the criminal records of the defendant and of a witness where admissible for impeachment, laboratory and hospital reports, results of examinations and scientific tests, and reports from peace officers and investigating agencies.
  • They also include any evidence favourable to the defendant and material to guilt or punishment, and written or recorded statements of witnesses in the state's case.
Brady is not a discovery rule and does not run on a demand. Brady v. Maryland holds that suppressing evidence favourable to an accused and material to guilt or punishment violates due process, regardless of the good faith of the prosecution. Giglio extends it to evidence that impeaches a government witness. Neither depends on somebody having filed the right paperwork, which is why they survive a case where the discovery request was narrow or late.
  • An expert for either side prepares a written report with a summary of qualifications, and it is subject to disclosure no later than twenty-one days before trial, a period the court may change for good cause.
  • Where the prosecuting attorney withholds material otherwise subject to disclosure, the rule requires a certification to the court stating the reasons.
  • On the defendant's motion the court reviews a nondisclosure or a counsel only designation for abuse of discretion, at an in camera hearing held seven days before trial with counsel taking part.
Asking is reciprocal, and a public records request counts as asking. A written demand for discovery triggers the defendant's own duty to provide the same categories back. In State v. Athon the Ohio Supreme Court went further: where an accused directly or indirectly makes a public records request for information that could have been obtained from the prosecutor through discovery, that request is the equivalent of a demand for discovery and triggers reciprocal discovery. The route around the rule turned out to be the rule.
Being incarcerated changes what a public records request reaches. A public office is not required to let a person incarcerated pursuant to a criminal conviction or a juvenile adjudication inspect or copy any public record concerning a criminal investigation or prosecution, unless the judge who imposed the sentence, or that judge's successor, finds the information sought is necessary to support what appears to be a justiciable claim. The judicial finding comes first and the records come second.

“Has a written demand for discovery been filed in my case, and what has come back so far?”

What has to be disclosed in a particular case, whether something withheld was properly certified, and what a Brady claim requires to succeed are questions with a long body of case law behind each. Filing a demand also switches on obligations running the other way. A licensed Ohio attorney is who decides what to ask for and when.

Sources for this section (6)
  1. Ohio Crim.R. 16 — Discovery and inspection, what each side owes the other, and when
  2. Brady v. Maryland, 373 U.S. 83 (1963) — Suppressing evidence favourable to the accused and material to guilt or punishment violates due process, good faith aside
  3. Giglio v. United States, 405 U.S. 150 (1972) — Evidence impeaching a government witness falls inside the disclosure duty
  4. Ohio Evid.R. 609 — Impeachment of a witness by evidence of a criminal conviction
  5. State v. Athon, 136 Ohio St.3d 43, 2013-Ohio-1956 — A public records request by an accused for material obtainable through discovery is the equivalent of a discovery demand and triggers reciprocal discovery
  6. ORC 149.43 — Availability of public records, including law enforcement video

Legal information, not legal advice. Verified as of September 2026. Talk to a licensed Ohio attorney about your situation.

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