Despite ‘problematic’ precedent, COA upholds denial of defendant’s motion to compel police report

Despite having concerns about the continued viability of a 1985 Indiana Supreme Court decision, the Court of Appeals of Indiana upheld the denial of a defendant’s motion to compel evidence of unredacted copies of police reports based on that precedent.

The case of Frank E. Minges, III v. State of Indiana, 21A-CR-216, started in October 2020, when police conducted a traffic stop of a vehicle driven by appellant-defendant Frank Minges. As a result of the stop, the Dearborn County Prosecutor’s Office charged Minges with Class A misdemeanor and Class C misdemeanor counts of operating while intoxicated.

As part of its discovery answer, the prosecutor’s office indicated Minges’ “Criminal History” and the “Dearborn County Sheriff’s Department Case Report Narrative” were “available to review upon appointment.” But in November 2020, defense counsel emailed the prosecutor and requested a copy of the police report by email.

The prosecutor declined and indicated defense counsel could view the report in the prosecutor’s office or, if defense counsel agreed to a non-negotiable protective order, the prosecutor would give defense counsel a copy. Minges then filed a motion to compel discovery, requesting that the Dearborn Superior Court order the prosecutor “to produce a complete and accurate copy” of the police report.

At a subsequent hearing, defense counsel acknowledged he had reviewed the police report at the prosecutor’s office, but he indicated he was not permitted to take a copy of the report with him because he would not sign the protective order. Minges’ lawyer asserted he did not feel comfortable signing the protective order, which required him to return the document after the case, because he had an ethical obligation to maintain his client file. Also, he argued the requirement to prepare the defense by viewing the document at the prosecutor’s office was particularly limiting during the COVID-19 pandemic.

In response, the prosecutor argued the trial court had no “power to order production of verbatim copies of police reports over a work product objection.”

The trial court indicated its hands were tied by Keaton v. Circuit Court of Rush County, 475 N.E.2d 1146 (Ind. 1985), unless defense counsel had caselaw overturning Keaton, which it did not.

On appeal, the COA cited Keaton in affirming the trial court — though it found the precedent “problematic in a number of respects.”

“No doubt, the police are agents of the State, but it seems problematic to treat them categorically as agents of the prosecutor before the prosecutor is even involved in a case,” Judge Melissa May wrote for the court. “… Moreover, even when only evaluating police activity related to the investigation of a crime, it is still problematic to categorically treat police officers as agents of the prosecutor. For example, ‘the law permits the police to pressure and cajole, conceal material facts, and actively mislead’ suspects, within certain limits, as part of the evidence gathering process.

“… As attorneys, prosecutors cannot engage in that sort of conduct, and they cannot allow their agents to do so either,” she continued. “… Because the ethical limitations on prosecutors do not carry through to police prior to a prosecutor’s involvement, it would seem to follow that police officers are not always to be treated as agents of the prosecutor whenever they are investigating a crime. Similarly, prosecutors would presumably dispute that police officers are their agents in every excessive force case and every instance of an illegal search.”

The COA further opined that Keaton gives the state advantages provided to no other party under the work-product doctrine, with prosecutors receiving a “blanket privilege, while every other party in Indiana who wishes to assert work product privilege has ‘the burden to allege and prove the applicability of the privilege as to each question asked or document sought.’”

“Finally, this case illustrates that Keaton’s concerns about burdening the state and subjecting police officers to misleading cross-examination are misplaced, or at least they do not warrant shielding all police reports,” May wrote. “Both sides acknowledge that the majority of counties in Indiana — and they only mention Dearborn and Elkhart Counties as the exceptions — have an open file policy, which generally means that the prosecutor allows defense counsel to review the prosecutor’s complete file. … The fact that prosecutors all over the State routinely produce police reports severely undermines the notions that allowing defendants access to police reports — redacted or unredacted — is too burdensome or will subject officers to unfair cross-examination.

“Even in this case particularly, the Prosecutor allowed Defense Counsel to examine the police report in person,” May continued. “Especially during a pandemic, that is far more burdensome to everyone than producing a copy. There can also no longer be any basis to claim that a copy of the report — as opposed to in-person inspection — could subject a testifying officer to unfair cross-examination.”

The state argued that because it allowed defense counsel access to the report in the prosecutor’s office, the appeal is not about the discoverability of the report but rather the manner of production.

“But that just further proves the point — the State’s refusal to produce a copy of the police report has nothing to do with attorney work product even though the attorney work product doctrine is its sole basis for refusing to provide a copy of the report,” May wrote. “Indeed, both in the trial court and on appeal the State is unable to articulate any interest whatsoever that it has in refusing to produce a copy of a police report in a misdemeanor OWI case beyond blind adherence to a policy that appears to serve no legitimate purpose in this case.

“… This is especially disconcerting given all the work that has gone into transitioning Indiana to utilizing electronic information exchanges. This allows lawyers to serve clients more efficiently because trips no longer need to be made to the Courthouse or to opposing counsel’s office, and this efficiency permits lawyers to serve clients whose cases may be occurring at greater distance from the lawyer’s office. In this evolving legal landscape, it makes little sense for a Prosecutor’s Office to expect defense counsel to arrive at the Prosecutor’s Office merely to review a document.”

Concurring, Judge L. Mark Bailey further urged the Supreme Court to revisit Keaton.

“All in all, I would urge our Supreme Court to embrace for all litigants, including the State, the tried and true analytical approach set forth in Trial Rule 26(B)(3) for analyzing ‘work product’ claims,” Bailey wrote. “That is, where there is a discovery dispute, allow the trial court to determine — on a case-by-case basis — the true nature of the materials sought, with the burden on the proponent to establish that the materials at issue constitute ‘work product.’

“And then, if the trial court determines that any item, in whole or in part, constitutes protectible ‘work product,’ allow the trial court to decide whether the item should nevertheless be disclosed due to an adequate showing of need and hardship,” he concluded.

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