Defendants' Discovery Requests Toll the Speedy-Trial Clock
November 30th, 2022
Contributor: Brandon Mordue
We have covered speedy-trial rights before, first explaining how a violation can lead to the dismissal of an indictment and later describing how the speedy-trial clock interacts with later-added charges. In yet another recent opinion on the subject, the Ohio Supreme Court in State v. Belville tackled the question of whether a defendant's request for discovery tolls the speedy-trial clock. Answering in the affirmative, the Court held that any request for discovery by a defendant tolls the clock for as long as the state reasonably needs to respond. The decision essentially forces defendants to choose between their speedy-trial rights and their right to discovery, with particularly negative consequences for defendants awaiting trial in jail.
Pursuant to R.C. 2945.72, a defendant must be brought to trial within 270 days of arrest. Each day a defendant sits in jail counts as three days, effectively requiring that an incarcerated defendant be brought to trial within 90 days. The 270 days can be comprised of a combination of normal days and triple-counted days that occurred before a defendant was released on bail. Various events can pause the running of the clock. For example, Sections 2945.72(D) and (E) provide that the 270-day clock is tolled for "[a]ny period of delay occasioned by the neglect or improper act of the accused" and "[a]ny period of delay necessitated by reason of a plea in bar or abatement, motion, proceeding, or action made or instituted by the accused."
Rule 16 of the Ohio Rules of Criminal Procedure provides for discovery in criminal cases. Rule 16(B) lists categories of information that must be provided to the other side "[u]pon receipt of a written demand for discovery by the defendant," including "[a]ny evidence favorable to the defendant and material to guilt or punishment." Though the Rule imposes reciprocal discovery obligations and requires a defendant to provide the listed information to the prosecutor, the Rule can be triggered only by the defendant.
In Belville, the defendant was arrested for drug trafficking. He filed a request for discovery, and the state responded with most of the material the next day. The state noted, however, that it was in possession of a responsive DVR device seized from the defendant's home that still was being reviewed. At a subsequent hearing, the state explained that transferring the DVR's contents required purchasing a second DVR and copying the contents over to it. The state completed that process - buying a second DVR and copying the contents of the seized DVR - 43 days after the discovery request.
By the time of trial, the defendant moved to dismiss on speedy-trial grounds, contending that 283 days had passed since his arrest (46 days out on bond and 79 triple-counted days in jail). The trial court denied the motion and the court of appeals affirmed.
Although discovery is not expressly listed as a tolling event in Section 2945.72, the Ohio Supreme Court nevertheless made short work of rejecting the defendant's arguments. Relying on its 2002 decision of State v. Brown, the Court explained that "when a defendant requests discovery, the request operates as a tolling event," because discovery requests "divert the attention of prosecutors from preparing their case for trial, thus necessitating delay." There is no precise number of days in which the state must respond to a discovery request. Instead, "[a] discovery request tolls speedy-trial time for a reasonable amount of time necessary to allow the state to respond to the request. What is reasonable will necessarily be a case-by-case determination and depend on the totality of the circumstances. It might be influenced, for instance, by the complexity of the discovery requested, the good or bad faith of the state, or the steps that state must take to comply with the request." "If the state were to drag its feet and respond after an unreasonable amount of time, the time lost due to the undue delay would not be tolled."
Although acknowledging one could "quibble" with whether 43 days was an unreasonable amount of time to copy one DVR, the Court determined that the state only needed to show 13 days of tolling for this defendant (which would bring the 283 days between arrest and trial within the 270-day limit). And, because the defendant made the discovery request while in jail, the state could comply with the speedy-trial statute by showing that it was reasonable to take at least five of the triple-counted jail days to respond to defendant's discovery. The Court found it beyond dispute that five days would have been a reasonable response period.
Finally, the Court left open whether the reciprocal discovery obligations imposed by Rule 16 also act as a tolling event.
As emphasized in the concurrence, "a defendant's access to discovery is fundamental to the fairness of a criminal trial and the integrity of the criminal-justice system." Criminal Rule 16(A) expressly says as much: "This rule is to provide all parties in a criminal case with the information necessary for a full and fair adjudication of the facts, to protect the integrity of the justice system and the rights of defendants, and to protect the well-being of witnesses, victims, and society at large." The upshot of the Court's decision is that a defendant can have the "full and fair adjudication of the facts" protected by Rule 16 only by ceding at least part of the speedy-trial rights provided by Ohio statute (and the constitution). A defendant can be guaranteed to be tried within 270 days or get discovery, but not both.
This tradeoff become particularly pernicious when the defendant remains in jail awaiting trial, in two different ways. First, the "reasonable" time the state gets to respond extends the time the defendant permissibly can be kept in jail. As the concurrence noted, "such delay could provide a tactic to induce a plea." Second, because of the statutory triple-counting mechanism, an unreasonable delay by the state will result in disparate outcomes for defendants depending on whether they can make bail. In Belville, the State took 43 days. Had the defendant been out of jail on bond for the entire period, the state would have had to justify substantially more of its delay in responding to discovery, but because the Court also gave the government the triple-counting benefit, the state had to meet the minimal burden of showing that a five-day response period was reasonable.
Finally, the Court's decision is sure to cause additional litigation over speedy-trial rights. Determining whether a defendant's rights were violated because of slow government discovery will require a multi-factor analysis to decide which portion of the state's discovery response was unreasonable and whether those unreasonable days count as one or three under the statute.