IN THE COURT OF COMMON PLEAS, [COUNTY], OHIO
CRIMINAL DIVISON

State of Ohio,						|	Case No.:
	Plaintiff,					|	
	-vs-						|	[JUDGE]
[CLIENTFIRST] [CLIENTLAST],			|	
	Defendant.					|	[THIS IS A CAPITAL CASE]
______________________________________________________________________________

[CLIENTLAST]’S  MOTION IN LIMINE REGARDING EVID. R. 803(8): 
LIMITED ADMISSIBILITY OF LAW ENFORCEMENT RECORDS 
______________________________________________________________________________

	[CLIENTLAST] moves this Court to restrict the use of records or reports from “police officers and other law enforcement personnel” concerning matters those people observed while on official duty, unless [CLIENTLAST] first offers the evidence. This request seeks to protect [CLIENTLAST]’s right to a fair trial, effective assistance of counsel, and due process of law, protected by the Fifth, Sixth, and Fourteenth Amendments to the United States Constitution and by Article I, §§ 1, 2, 5, 10, 16, and 20.  of the Ohio Constitution.   
	The following memorandum supports this motion.
							Respectfully submitted,
							/s/Attorney’s Signature - Lead			
							Attorney’s Name [Ohio Bar No.]
							Attorney’s Business Address
							City, State, Zip
							Business Phone No.
							Business Fax No.
							Business email address

							/s/Attorney’s Signature – Co-Counsel		
							Attorney’s Name [Ohio Bar No.]
							Attorney’s Business Address
							City, State, Zip
							Business Phone No.
							Business Fax No.
							Business email address

MEMORANDUM IN SUPPORT OF MOTION
The information contained in a public record or report is hearsay. Evid. R. 801. Ordinarily, hearsay evidence is not admissible. Evid. R. 802. However, there are exceptions to the rule against hearsay. Evidence Rule 803(8) contains the hearsay exception for public records and reports. It allows for the use of public records created by law enforcement in criminal trials only when offered by the defendant:
Records, reports, statements, or data compilations, in any form, of public offices or agencies, setting forth (a) the activities of the office or agency, or (b) matters observed pursuant to duty imposed by law as to which matters there was a duty to report, excluding, however, in criminal cases matters observed by police officers and other law enforcement personnel, unless offered by the defendant, unless the sources of information or other circumstances indicate lack of trustworthiness.

Evid. R. 803(8) (emphasis added). This rule protects the defendant from the prosecution’s use of self-serving law enforcement records and reports, while at the same time permitting defendant to use those reports as he deems fit.
The Leonard case explains how one should apply Evid. R. 803(8). State v. Leonard, 104 Ohio St.3d 54, 2004-Ohio-6235, 818 N.E.2d 229 (2004). The indictment charged Leonard with capital murder and related offenses. Leonard, 2004-Ohio-6235, 13. The murder victim was Dawn Flick. Leonard, 2004-Ohio-6235, ¶ 1. After his arrest, “Leonard confessed to Flick’s murder during an interview with Hamilton County Sheriff’s Detectives Schweinefus and Diersing.” Leonard, 2004-Ohio-6235, ¶ 109. The next day, “Schweinefus prepared a written investigation report summarizing Leonard’s tape-recorded confession.” Id. About five months later, “Schweinefus prepared a supplemental report that purported to summarize other, unrecorded statements that Leonard had made during the interview.” Id. The State offered both reports as substantive evidence. Id. The defense objected on the grounds that the information in the reports was hearsay and admitting the reports violated Leonard’s Confrontation Clause rights. Leonard, 2004-Ohio-6235, ¶ 110. The trial court admitted a redacted version of the initial report and a full, unredacted version of the supplemental report. Leonard, 2004-Ohio-6235, ¶ 109. Despite objection, the court also allowed Schweinefus to rely extensively on his reports while testifying on direct examination. Id.
On appeal, Leonard argued that the trial court erred by admitting the Schweinefus reports as substantive evidence, citing both the hearsay rule and the Confrontation Clause. Leonard, 2004-Ohio-6235, ¶ 110. The Court found no merit in Leonard’s Confrontation Clause argument. Id. However, the Court agreed that the trial court violated the hearsay rule when the trial court admitted the Schweinefus reports as substantive evidence. Leonard, 2004-Ohio-6235, ¶ 111. “The police reports are inadmissible hearsay and should not have been submitted to the jury.” Id. 
The State argued that the reports fell under the public-records-and-reports to the hearsay rule.  The Court cited to the text of Evid. R. 803(8) and rejected the State’s argument. Id. “Evid. R. 803(8)(b) excludes from the public-records-and-reports exception to hearsay police reports that ‘recite an officer’s observations of criminal activities or observations made as part of an investigation of criminal activities.” Id. The Court also found that the trial court erred when it allowed “Schweinefus to rely on his reports during direct examination.”  Id. The rule announced in Leonard prevents the State from admitting a police report into evidence even though defense counsel used that report when cross-examining the State’s witness. State v. Sanders, 130 Ohio App. 3d 789, 797, 721 N.E.2d 433 (11th Dist. 1998). 
The State may not avoid the limiting aspects of Rule 803(8)(b) by introducing a public record under Rule 803(6), which pertains to records of regularly conducted activity. Such circumvention would result in a perversion of the intent and policy of the Rules.  “[N]either Evid R. 803(6) nor Evid. R. 803(8), the public records and reports exception to the hearsay rule, permits the State to prove its case through police records or portions thereof.”  State v. Spinks, 79 Ohio App. 3d 720, 729, 607 N.E. 2d 1130 (8th Dist. 1992).  In criminal cases, “that procedure violates both the hearsay rule and the accused’s constitutional right of confrontation.”  Id. 
The Federal Constitution and the Ohio Constitution both protect [CLIENTLAST]’s right to confront the witnesses against him. Sixth and Fourteenth Amendment, U.S. Constitution; Ohio Constitution, Article I, § 10; Davis v. Alaska, 415 U.S. 308, 316-17 (1974); State v. Smith, 5th Dist. Delaware No. 15CAA 0077, 2016-Ohio-7566, 76 N.E.3d 551, ¶ 39. That right includes the right to require the prosecutor’s case to “encounter and ‘survive the crucible of meaningful adversarial testing.’” Crane v. Kentucky, 476 U.S. 683, 690-691 (1986). Evidence Rule 803(8) limits the State’s power to offer law enforcement records as substantive evidence to protect these important constitutional rights of those accused of crimes. If those protections did not exist, the State could violate those constitutional rights by allowing the police to “recount their investigations through records rather than witnesses whose credibility might suffer under cross-examination.” 1 Weissenberger's Ohio Evidence Treatise § 803.107 (1982).
Protecting [CLIENTLAST] from self-serving law enforcement hearsay, while at the same time enabling him to confront the State’s evidence and witnesses with documents generated by law enforcement personnel, fairly levels the adversarial arena and protects [CLIENTLAST]’s constitutional rights to effective assistance of counsel, due process of law, equal protection of the law, confrontation of the State’s evidence, and freedom from cruel and unusual punishment.  Fifth, Sixth, Eighth, and Fourteenth Amendment, U.S. Constitution; Ohio Constitution, Article I, §§ 1, 2, 5, 10, 16, and 20.  Ohio has established Ohio R. Evid. 803(8) to effectuate these rights. 

The United States Supreme Court  has clearly stated that death is different; for that reason more process is due, not less.  Lockett v. Ohio, 438 U.S. 586, 605 (1978); Woodson v. North Carolina, 428 U.S. 280, 305 (1976) (plurality opinion).  “[W]hen a State opts to act in a field where its action has significant discretionary elements, it must nonetheless act in accord with the dictates of the Constitution — and, in particular, in accord with the Due Process Clause.”  Evitts v. Lucey, 469 U.S. 387, 401 (1985).  This is all the more so when a petitioner’s life interest, protected by the “life, liberty and property” language in the Due Process Clause, is at stake in the proceeding. See Ohio Adult Parole Authority v. Woodard, 523 U.S. 272, 288 (1998) (O’Connor, Souter, Ginsberg, and Breyer, J.J., concurring); id. at 291 (Stevens, J., dissenting), where five justices recognized a distinct, continuing, life interest protected by the Due Process Clause in capital cases.  The Court must take all reasonable measures to prevent arbitrary, cruel, and unusual results in a capital trial.  Lockett, 438 U.S. at 604; Woodson, 428 U.S. at 304-05.
For these reasons, [CLIENTLAST] respectfully requests an Order in limine designed to ensure strict compliance with Ohio R. Evid. 803(8).
 						Respectfully submitted,
							/s/Attorney’s Signature - Lead			
							Attorney’s Name [Ohio Bar No.]
							Attorney’s Business Address
							City, State, Zip
							Business Phone No.
							Business Fax No.
							Business email address

							/s/Attorney’s Signature – Co-Counsel		
							Attorney’s Name [Ohio Bar No.]
							Attorney’s Business Address
							City, State, Zip
							Business Phone No.
							Business Fax No.
							Business email address

CERTIFICATE OF SERVICE
	I hereby certify that on [DATE] I served a copy of the foregoing Motion In Limine Regarding Evid. R. 803(8): Limited Admissibility of Law Enforcement Records, via email and ordinary U.S. Mail, postage prepaid, upon the prosecutor at the prosecutor’s address of record, to wit:
[Prosecutor’s Name]
[street address]
[city, state, zip]
[office email address]

						/s/[counsel]					
						Counsel for [CLIENTLAST]