Prosecutors Can No Longer Rely on Keaton to Deny Defense Copy of Police Report

Indiana prides itself on being a “liberal discovery” state. Yet for years a few prosecutors in the state have relied on a 1985 Indiana Supreme Court case, State ex rel. Keaton v. Cir. Ct. of Rush Cnty., 475 N.E.2d 1146 (Ind. 1985), to deny defendants and their attorneys access to police reports in criminal cases. In Keaton, the Court held that police reports were per se work product of the prosecutor and not discoverable.

The Keaton decision predated the passage of our court rules governing discovery. Under our current trial rules, the application of the work product exception to discovery is decided on a case-by-case basis, and the burden is on the party asserting the privilege to demonstrate the item is indeed work product.

This begged the question: how can we reconcile Keaton with our trial rules? We can’t. In Minges v. State, the Supreme Court of Indiana expressly overruled Keaton. Now, a prosecutor can no longer rely on Keaton to deny defendants copies of the police reports. Rather, the privilege will have to be proven in each case in which it is asserted; a blanket prohibition is no longer permitted.