Indiana Supreme Court tosses decades-old precedent protecting police work product

The Indiana Supreme Court has overturned a more-than-30-year-old precedent, finding the previous ruling that held police reports were covered by the work-product doctrine is no longer applicable because of changes to the state’s trial rules and technological advances that have ended the laborious task of redacting documents using a Marks-a-Lot marker.

Thirty-seven years ago, a split Supreme Court blocked the discretion of trial courts in discovery disputes over reports from law enforcement. In State ex. rel. Keaton v. Cir. Ct. of Rush Cnty., 475 N.E.2d 1146 (Ind. 1985), the majority concluded, “… a trial court’s authority to control discovery does not extend to compelling production of verbatim copies of police reports.”

However, on Tuesday, a unanimous Supreme Court overruled Keaton.

“We stress, though, that this Court’s decision does not suggest that police reports may never qualify as work product,” Justice Steven David wrote for the Supreme Court in Frank E. Minges, III v. State of Indiana, 22S-CR-285. “… We merely clarify that Trial Rule 26(B)(3) supersedes any reliance on Keaton as preventing trial courts from exercising their discretion in determining whether the work product privilege protects a particular police report from disclosure.”

The case that inspired the reversal began in October 2020, with Frank Minges driving too fast and failing to stay in his lane of traffic. A Dearborn County police officer pulled him over and administered a field sobriety test that registered Minges’ blood alcohol content at 0.099%.

Minges was charged separately with operating his vehicle while intoxicated, a Class C misdemeanor, in a manner that endangered a person, a Class A misdemeanor.  The local prosecutor refused to provide a copy of the Dearborn County Sheriff Department’s case report narrative but did offer to allow a review of the report — but only if defense counsel made an appointment to appear at the prosecutor’s office.

Dearborn Superior Judge Jonathan Cleary looked at Keaton and concluded the trial court had no discretion to compel the prosecutor to produce the police report. The Court of Appeals of Indiana affirmed in Minges v. Indiana, 21A-CR-216, although the panel agreed with Minges that Keaton should be reconsidered.

The Supreme Court accepted the requests that it reconsider Keaton. While the justices acknowledged they should be reluctant to disturb precedent, they cited to Ladra v. State, 177 N.E.3d 412 (Ind. 2021), which held that while “stare decisis often compels a court to follow its prior decisions, the doctrine is not a straitjacket … .”

In Keaton, defendant David Kidd — who was charged with murder in 1983 — requested to see copies of relevant police reports, but the prosecutor’s office refused, arguing the reports were the work product of the prosecuting attorney.

A majority of 1985 Supreme Court agreed with the prosecutor.

But since then, the state’s trial rules have been updated so that the two-pronged definition of “work product” under Indiana Trial Rule 26(B)(3) now applies to all criminal proceedings and not just to criminal appeals. The material must have been prepared in anticipation of a trial and prepared by or for “another party or … that other party’s representative or agent.”

In his opinion for the Minges Supreme Court, David noted courts have interpreted Keaton as providing a blanket privilege to police reports, which has effectively deprived the trial courts of the ability to exercise their discretion in compelling disclosure over the prosecuting attorney’s work-product objection.

But, David continued, “we see no reason to perpetuate this reading of Keaton when Trial Rule 26(B)(3) and other discovery principles provide the appropriate framework for analyzing whether the work product doctrine protects a police report from disclosure.”

David also highlighted that the reasons justifying Keaton are unsupported in the modern age. Specifically, the Keaton Supreme Court found that requiring prosecuting attorneys to produce copies of the police reports would create an undue burden.

In Minges, the Supreme Court pointed out that the advent of computers and e-filing have made redacting documents significantly less burdensome than 30 years ago, when black markers were used to cross out sensitive information. Moreover, the concerns that providing police reports would present an opportunity for abuse by defense attorneys have proven unfounded.

“Such fear of abuse by fellow legal professionals not only appears 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,’” David wrote, citing Indiana Admission and Discipline Rule 22. “And more importantly, we can rely on trial judges to control the conduct and scope of cross-examination to minimize the risks of concern to the Keaton court.”

The Minges case was thus remanded for the trial court to “reconsider whether the Police Report is protected by the work product privilege in a manner consistent with the Court’s decision.”