We are lucky in Indiana. We have a very liberal discovery process. In fact, our Trial Rules are designed to allow for it. Where a criminal defendant makes a request for an item that is relevant and not privileged, he is not only entitled to inspect it but also to copy it. Ind. Trial R. 26(B)(1), 34(A).

Last week, Indiana’s appellate courts heard oral arguments in two cases where the State has argued defendants are not entitled to copies of relevant discovery items. In the first case, the Court of Appeals of Indiana heard oral argument on whether the State is required to provide the defense with a copy of the police report. In a 3-2 decision in 1985, our Supreme Court held police reports were the work product of prosecutors and, thus, were privileged.

This decision, State ex rel. Keaton v. Circuit Court of Rush County, 475 N.E.2d 1146 (1985), provided the following rationale for its holding. First, if the defendant had a copy of the police report, he could use it to his advantage at trial. Second, no authority gave trial courts the inherent power to require prosecutors to share their work product.

Much has changed since Keaton was closely decided by our Supreme Court. First, police reports may have changed, calling into question whether today they would even be considered work product. Second, Indiana has since adopted the Trial Rules, not only allowing for liberal discovery but also calling for a specific procedure to be followed to determine whether a document is indeed work product. Finally, the Trial Rules may now provide trial courts with the authority they lacked when Keaton was decided.

Given the questions asked by the judges during last week’s oral argument, there is a good chance Keaton will eventually be overruled.

In the second case, the Supreme Court of Indiana heard arguments on a defendant’s request to receive a copy of a child molest victim’s forensic interview. In Ramirez v. State, defense counsel in a criminal case was permitted to review a video of the victim’s forensic interview, but only at the prosecutor’s office. Counsel was not permitted to make a copy of the video to use in preparation of his defense.

The State had expressed generalized concerns that the interview could be posted on social media. The defendant argued he was entitled to a copy of the video under the Trial Rules, and the video was necessary in preparing a defense. Ramirez raised other issues as well, but the discovery issue dominated the oral argument.

We should receive a decision soon in Minges; the Supreme Court will likely take some time to issue a decision in Ramirez.