Whither White Out?

The Indiana Supreme Court overruled precedent regarding disclosure of police reports

Over thirty years ago, this Court decided State ex rel. Keaton v. Cir. Ct. of Rush Cnty., 475 N.E.2d 1146 (Ind. 1985). Citing an undue burden on prosecuting attorneys and the potential for abuse by defense counsel, the Court concluded criminal trial courts do not have inherent authority to require the State to produce complete copies of police reports over the prosecuting attorney’s timely work product objection. Id. at 1148. Decided in a time when lawyers redacted documents using Marks-a-Lot markers, the Keaton court was unlikely to fathom electronic filing or software programs readily accessible to legal professionals today.

But as technology developed after our Keaton decision, the rules governing criminal procedure, and custom, likewise changed over time. And today, the majority of prosecutors across the State of Indiana regularly produce police reports to defendants and their counsel, while prosecutor’s offices in the minority of counties automatically assert the work product privilege over these documents as a matter of policy.

In the midst of this change, Minges challenges the trial court’s denial of his motion to compel the State to produce a copy of the police report related to his misdemeanor charges. In doing so, Minges asks us to reconsider our decision in Keaton. Today, we accept his request, overrule Keaton, and remand to the trial court to determine whether the police
report is privileged work product in a manner consistent with this opinion.

The court noted that all but two counties provide open file discovery

We stress, though, that this Court’s decision does not suggest that police reports may never qualify as work product. Even the parties concede the doctrine may otherwise protect police reports under certain circumstances.

(Mike Frisch)