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Indiana Supreme Court Announces Trial Rule 26(B)(3) Governs Whether Police Reports Are Protected Work Product, Expressly Overruling Keaton

by Douglas Ankney

The Supreme Court of Indiana held that trial courts are to follow the two-pronged definition of Trial Rule (“TR”) 26(B)(3) to determine whether a police report is protected from discovery by the work-product doctrine. In so doing, the Court expressly overruled State ex rel. Keaton v. Cir. Ct. of Rush Cnty., 475 N.E.2d 1146 (Ind. 1985) (ruling criminal trial courts do not have inherent authority to require the State to produce complete copies of police reports over the prosecution’s timely work-product objection).

Frank E. Minges, III, by counsel, sought pretrial discovery of, inter alia, “[a]ny and all reports known to the State made in writing by any policeman or investigating officer” relevant to his charged misdemeanor offenses stemming from driving while intoxicated. While the State had no objection to defense counsel examining the police report, the State refused to provide a copy of the police report to the defense because, per Keaton, police reports are the work product of the prosecuting attorney.

The trial court reasoned that in the absence of case law overturning Keaton, it had no discretion to compel the State to produce the police report. Minges was granted interlocutory appeal of the trial court’s order. The Court of Appeals (“COA”) agreed with Minges that reconsideration of Keaton was warranted but affirmed the trial court’s order because both the COA and the trial court are bound by the Indiana Supreme Court’s precedent. The Indiana Supreme Court accepted the COA and Minges’ request to reconsider Keaton.

The Court observed that “Indiana’s discovery rules are designed to permit ‘liberal discovery’ in order to provide the maximum amount of information possible to both parties as they prepare their cases and reduce the possibility of surprise at trial.” State ex rel. Keller v. Crim. Ct. of Marion Cnty., Div. IV, 317 N.E.2d 433 (Ind. 1974). Indiana Criminal Rule 21 provides that the Trial Rules “apply to all criminal proceedings so far as they are not in conflict with any specific rule adopted by this [C]ourt for the conduct of criminal proceedings.” TR 26(B)(1) sets forth the scope of discovery and provides that a party may obtain discovery about “any matter, not privileged, which is relevant to the subject-matter involved in the pending action, whether it relates to the claim or defense of the party seeking discovery or the claim or defense of any other party.”

However, TR 26(B)(3) codifies the common law work-product doctrine (first articulated in Hickman v. Taylor, 329 U.S. 495 (1947)), which provides an attorney’s work product, or that of their agent, is privileged and protected from disclosure. Absent extenuating circumstances, an attorney’s work product is not discoverable in criminal cases. United States v. Nobles, 422 U.S. 225 (1975). Material is “work product” if it satisfies a two-pronged definition: (1) the material must have been prepared in anticipation of litigation or trial (2) by or for another party or that party’s representative or agent. TR 26(B)(3). Courts apply a factual, case-by-case analysis when determining whether materials qualify as an attorney’s work product and are protected from disclosure. Hayworth v. Schilli Leasing, Inc., 669 N.E.2d 165 (Ind. 1996). The party seeking to avoid disclosure bears the burden of demonstrating the privilege applies to the specific item. TP Orthodontics, Inc. v. Kesling, 15 N.E.3d 985 (Ind. 2014); TR 26(B)(5)(a).

The Court explained that Keaton was decided before Criminal Rule 21 made the Trial Rules applicable in criminal trials. Hence, Keaton did not analyze whether police reports met the two-pronged definition of TR 26(B)(3) to qualify as privileged work product. Furthermore, as in the instant case, courts had interpreted Keaton as providing a blanket privilege to police reports, depriving a trial court from exercising its discretion in compelling disclosure over the prosecuting attorney’s work-product objection. Beckham v. State, 531 N.E.2d 475 (Ind. 1988).

Finally, the Keaton Court’s reasons justifying its decision are no longer applicable, according to the Court. First, the Keaton Court reasoned that it would unduly burden prosecuting attorneys to produce verbatim copies of police reports, forcing them to excise non-discoverable information. While that may have been true in 1985 when Keaton was decided, in today’s computer age, excising information requires no more than the click and drag of a cursor on a computer’s screen.

Second, the Keaton Court wrote that verbatim copies of police reports used by the defense at trial “could subject the [investigating] officers to misleading and unfair cross examination.” But the Court dismissed that rationale, stating: “Such fear of abuse by fellow legal professionals not only appears to be unsubstantiated, but disregards the oath taken by every attorney in our State, defense counsel and prosecutors alike, to ‘abstain from offensive personality and advance no fact prejudicial to the honor or reputation of a party or witness[.]’” Ind. Admission and Discipline Rule 22.

Accordingly, the Court overruled Keaton and remanded to the trial court with instructions to reconsider whether the police report is protected by the work-product privilege in a manner consistent with the instant decision. See: Minges v. State, 192 N.E.3d 893 (Ind. 2022). 

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