I. Introduction

In State v. Bostick, 2025‑Ohio‑5559, the Supreme Court of Ohio resolved a recurring procedural question in Ohio criminal practice: when a defendant seeks a new trial on the basis of newly discovered evidence under Criminal Rule 33(A)(6), must the trial court hold an oral hearing (with live testimony) before ruling, or is it sufficient to decide the motion on written submissions alone?

The Court’s majority holds that:

Crim.R. 33(A)(6) requires that a trial court conduct an evidentiary hearing on a motion for a new trial based on newly discovered evidence, but it does not require that the hearing be a formal, oral hearing. Whether to hold an oral hearing is within the trial court’s discretion.

Justice Deters authored the majority opinion, joined by Chief Justice Kennedy and Justices Fischer, DeWine, Hawkins, and Shanahan. Justice Brunner dissented, arguing that the trial court’s one-sentence summary denial of the motion—without any indication that an evidentiary hearing of any kind was actually held— failed to satisfy both Crim.R. 33(A)(6) and basic procedural due process, especially in light of the nature of the new evidence (a police report initially naming a different shooter).

This commentary:

• Sets out the factual and procedural background of the case;
• Summarizes the Supreme Court’s holdings and the dissent;
• Discusses the precedents and authorities informing the decision;
• Analyzes the Court’s legal reasoning and the competing views of the majority and dissent;
• Explains key procedural concepts in accessible terms; and
• Assesses the likely impact of the decision on Ohio criminal practice and postconviction litigation.

II. Factual and Procedural Background

A. The Underlying Offense and Trial (2003)

In 2003, a Cuyahoga County jury convicted Hollis (also referred to as Jason) Bostick of:

• Felonious assault,
• Attempted murder, with firearm specifications, and
• Having weapons while under disability.

The key facts at trial, as summarized by the Supreme Court:

• Victim Tommie Griffin was leaving a restaurant. There was testimony about an ongoing dispute between two groups: the “Redell Boys” (associated with Griffin) and the “Crumb/Ansel Boys” (associated with Bostick and Lonnie “Bud” McCann).
• Griffin testified he heard Bostick say, “Here’s one of them MFers here,” saw a gun in a sling on Bostick’s arm, and then saw Bostick pull the gun and chase him, firing several shots and striking him twice.
• McCann testified he was with Bostick and three women outside the restaurant. As McCann walked toward the restaurant, Griffin exited. McCann heard a derogatory comment from Bostick, saw Griffin run, then heard shots and saw Bostick shooting.
• One of the women also testified she saw Bostick shoot and then stand over someone, still shooting.
• McCann was arrested within 30 minutes because his car was identified at the scene, but he was not charged. The defense suggested at trial that McCann was actually the shooter, but the jury convicted Bostick on all counts and specifications.

On direct appeal, the Eighth District affirmed the convictions but remanded solely for resentencing because the trial court failed to adequately articulate the basis for consecutive sentences. State v. Bostick, 2004‑Ohio‑1676, ¶ 21, 33.

B. Newly Discovered Evidence and Motion for New Trial

Nearly two decades later, in September 2021, Bostick filed a motion for leave to file a motion for a new trial under Crim.R. 33(B), far outside the ordinary 120-day window for newly discovered evidence motions.

The new evidence: a previously undisclosed police report, generated shortly after the shooting, in which Griffin—while in the hospital—identified Lonnie “Bud” McCann as the shooter. Based on the report:

• Griffin told police he knew the shooter, gave the nickname “Bud,” and described the shooter’s vehicle.
• Police followed up, stopped a vehicle matching the description, and arrested McCann, confirming his nickname and presence at the scene.

This report had not been disclosed to the defense at the time of trial. Bostick attached:

• The police report; and
• An affidavit from his trial counsel stating that, had he known of this initial identification of McCann, he would have used it at trial.

Bostick’s grounds for a new trial included:

• Failure to disclose exculpatory evidence (a Brady-type claim);
• Use of perjured testimony (given the discrepancy between Griffin’s hospital identification and trial testimony); and
• Ineffective assistance of counsel (for not having this evidence, though the non-disclosure is primary).

The State did not oppose the motion for leave. The trial court granted leave under Crim.R. 33(B), thereby finding, at least implicitly, that Bostick was “unavoidably prevented” from discovering the evidence within the rule’s 120-day period.

C. The Motion for New Trial and Trial Court’s Denial

After leave was granted, Bostick filed his motion for a new trial under Crim.R. 33(A)(6), supported by the same police report and affidavit. The State opposed the motion.

The motion remained pending for over a year. Ultimately, the trial court denied the motion for a new trial in a brief, summary entry that:

• Did not indicate that any hearing (oral or nonoral) had been held;
• Did not describe what materials had been considered; and
• Did not provide reasoning, factual findings, or legal conclusions.

D. Appeal to the Eighth District and to the Supreme Court

On appeal, Bostick raised a single assignment of error, focused on process:

“The trial court violated Hollis Bostick’s state and federal constitutional rights when it summarily denied his motion for a new trial without a hearing and did so after granting him leave to file it.”

The Eighth District affirmed, holding that the trial court did not abuse its discretion in denying the motion for a new trial without holding a hearing. It concluded that the newly discovered police report did not create a “strong probability” of a different result if the jury had known of it.

The Supreme Court of Ohio accepted one proposition of law:

When evidence that the defendant was not the perpetrator of the crime is withheld from the defense and not discovered until after conviction, and where the exculpatory value of the evidence is dependent upon its credibility, a trial court must conduct an evidentiary hearing prior to ruling on a motion for new trial prompted by that evidence.

Importantly, the Court limited its review to the procedural question embedded in this proposition (whether a trial court must conduct an evidentiary and/or oral hearing), declining to address:

• The materiality of the police report;
• Whether a “strong probability of a different result” was shown; or
• The broader merits of the Brady or perjury claims.

III. Summary of the Supreme Court’s Decision

A. Majority Holding

The Court’s central holdings can be summarized as follows:

1. Crim.R. 33(A)(6) plainly requires that motions for new trial based on newly discovered evidence be resolved through an evidentiary hearing, meaning that the court must consider sworn evidence (affidavits or similar materials).
2. The rule’s reference to a “hearing” does not mandate a formal, oral hearing with live testimony. An evidentiary hearing may be “nonoral”—based on affidavits, depositions, and documentary materials alone.
3. Consistent with prior case law in both civil and criminal contexts, whether to hold a formal oral evidentiary hearing is a matter of trial court discretion.
4. In Bostick’s particular case, there was no abuse of discretion because:
   • He did not request an oral hearing at any time;
   • He expressly acknowledged in his motion that trial courts have broad discretion whether to hold a hearing on a new-trial motion;
   • He never attempted to supplement his affidavits with additional evidence within the more than one-year pendency of his motion; and
   • On appeal he did not argue that lack of an oral hearing prevented him from presenting evidence.

The Court therefore affirmed the judgment of the Eighth District Court of Appeals.

B. Clarification of Prior Case Law (Hatton)

The majority recognized that its prior decision in State v. Hatton, 2022‑Ohio‑3991, might be read to require an oral evidentiary hearing after leave is granted. In Hatton, the Court held that:

• A defendant must receive an evidentiary hearing on a Crim.R. 33(A)(6) motion when the motion alleges “substantive grounds for relief” and leave is appropriately granted;
• The trial court in Hatton erred by skipping directly to the merits and denying leave without properly addressing the “unavoidably prevented” standard.

In Bostick, the Court clarifies that:

“[W]hile an evidentiary hearing—one in which the trial court considers affidavits or other sworn statements submitted to support the defendant’s motion—is required, the decision whether to hold an oral evidentiary hearing is left to the discretion of the trial court.” (¶ 19)

Thus, Hatton is limited to requiring some form of evidentiary hearing, not necessarily a live, in-person hearing.

C. The Dissent’s Position (Justice Brunner)

Justice Brunner, in dissent, would have vacated the trial court’s summary denial and remanded for a full evidentiary hearing with clear indication on the record that:

• A hearing (oral or nonoral) was held;
• The court considered the new evidence; and
• The court issued findings of fact and conclusions of law that could be meaningfully reviewed on appeal.

She emphasized:

• The constitutional dimension of postconviction processes once a state creates them;
• The unreliability of a “summary” one-sentence denial where the record contains no evidence that any hearing occurred;
• The strong indicia of reliability of the initial hospital identification of McCann (timing, detail, corroboration by vehicle stop); and
• The need for procedures that “surface and correct” miscarriages of justice.

In her view, the majority impermissibly presumes that some kind of evidentiary hearing took place, contrary to the record, and effectively raises a new requirement—defendants must request a particular type of hearing—that is not contained in Crim.R. 33(A)(6).

IV. Key Precedents and Authorities Cited

A. Crim.R. 33(A)(6) and 33(B)

Crim.R. 33(A)(6) authorizes a new trial based on “newly discovered evidence material to the defense” which the defendant “could not with reasonable diligence have discovered and produced at the trial.” It provides:

“When a motion for a new trial is made upon the ground of newly discovered evidence, the defendant must produce at the hearing on the motion, in support thereof, the affidavits of the witnesses by whom such evidence is expected to be given, and if time is required by the defendant to procure such affidavits, the court may postpone the hearing of the motion for such length of time as is reasonable under all the circumstances of the case. The prosecuting attorney may produce affidavits or other evidence to impeach the affidavits of such witnesses.”

Crim.R. 33(B) imposes strict timing rules:

• Ordinarily, motions based on newly discovered evidence must be filed within 120 days of the verdict.
• To file later, a defendant must show by “clear and convincing proof” that he was “unavoidably prevented” from discovering the evidence in time.
• Once the trial court finds unavoidable prevention, the motion for new trial must be filed within seven days of that order.

In Bostick, the trial court had already granted leave under Crim.R. 33(B), so the Supreme Court’s focus shifted to what Crim.R. 33(A)(6) requires once a properly supported motion is before the court.

B. Pruszynski v. Reeves, 2008‑Ohio‑510

The majority quotes Pruszynski for the proposition that where a statute or rule uses the word “hearing” without defining it, the nature of the hearing is left to the trial court’s discretion, provided that it is evidentiary in some fashion.

“In numerous instances, the General Assembly has used the term ‘hearing’ without defining it. In those cases, we have left the nature of the hearing to the discretion of the trial court. The common characteristic of those hearings, however, is that they must be evidentiary hearings of some kind.” (¶ 15)

Pruszynski also described an evidentiary hearing as involving the “presentation of evidence by affidavits, depositions, and other documents,” and distinguished that from an oral evidentiary hearing. (¶ 17)

C. Hooten v. Safe Auto Ins. Co., 2003‑Ohio‑4829

In the civil context, former Civ.R. 56(C) required that a motion for summary judgment be served at least 14 days before the “time fixed for hearing.” In Hooten, the Court interpreted “hearing” in this context:

“[T]he ‘hearing’ referred to in Civ.R. 56(C) may be either a formal, oral hearing … or a ‘nonoral,’ informal one,” and “[w]hether to grant a party’s request for oral hearing is a decision within the trial court’s discretion.” (¶ 14)

A “nonoral” hearing can consist of the submission of memoranda and evidentiary materials for the court’s consideration. This civil analogy is used in Bostick to support the notion that Crim.R. 33(A)(6)’s “hearing” can likewise be nonoral, provided it involves consideration of sworn evidence.

D. State v. Hatton, 2022‑Ohio‑3991

Hatton held that when a defendant satisfies Crim.R. 33(B)’s “unavoidably prevented” standard and shows “substantive grounds for relief,” the defendant is “entitled to an evidentiary hearing” on the new trial motion. (Hatton, ¶ 28, 36)

In Hatton, the trial court erred by:

• Conflating the leave standard with the merits of the new trial motion; and
• Refusing leave without a hearing despite a sufficient showing of unavoidable prevention.

Bostick does not retreat from Hatton’s requirement of an evidentiary hearing, but clarifies that such a hearing need not be oral.

E. State v. Calhoun, 1999‑Ohio‑102

Although a postconviction-relief case, Calhoun is referenced (through Hatton) for the principle that a defendant is entitled to an evidentiary hearing when the allegations and supporting materials demonstrate “substantive grounds for relief.”

The dissent in Bostick relies on this line of authority to argue that once such substantive grounds are shown, a summary denial with no evident hearing is inadequate.

F. Due Process Authorities Cited in the Dissent

1. Harris v. Nelson, 394 U.S. 286 (1969)

In the habeas corpus context, Harris held that courts must provide procedures “to insure that miscarriages of justice within [their] reach are surfaced and corrected” and that petitioners are entitled to “careful consideration and plenary processing” of their claims, including full opportunity to present relevant facts. Justice Brunner invokes this as an analogy for how courts should approach Crim.R. 33(A)(6) motions.

2. District Attorney’s Office for the Third Judicial Dist. v. Osborne, 557 U.S. 52 (2009), and Gutierrez v. Saenz, 606 U.S. 305 (2025)

Osborne held that when a state creates a postconviction mechanism, due process may require certain procedures “essential to the realization of [that] right.” Gutierrez (2025) is cited as reaffirming this proposition.

Justice Brunner uses these cases to argue that:

“[W]hen a State has created the right to a postconviction process, a defendant may be entitled to certain other procedures ‘essential to the realization of [that] right.’”

She contends that, in Ohio, meaningful realization of the Crim.R. 33(A)(6) right requires more than a one-line denial—it requires a discernible evidentiary hearing and a reasoned decision.

3. Neil v. Biggers, 409 U.S. 188 (1972)

In assessing the reliability of eyewitness identifications, Biggers directs courts to consider factors such as:

• The opportunity of the witness to view the criminal at the time of the crime;
• The witness’s degree of attention;
• The accuracy of the prior description;
• The level of certainty demonstrated; and
• The time between the crime and the identification.

The dissent points out that Griffin’s initial hospital identification of McCann (made shortly after the shooting, with specific details and corroboration) bears strong reliability under Biggers, and thus the new evidence is far from trivial; this, she argues, heightens the need for a robust evidentiary process.

4. Abuse of Discretion Standards

The dissent cites:

• State v. Grad, 2024‑Ohio‑5710, ¶ 47; and
• State v. Adams, 62 Ohio St.2d 151, 157 (1980)

for the familiar proposition that a trial court abuses its discretion when its decision is “arbitrary, unreasonable, or unconscionable.” She characterizes a one-sentence, unexplained denial—without clear indication of a hearing—as arbitrary and unreasonable in the Crim.R. 33 context.

5. Presumption of Regularity

The majority invokes State v. Phillips, 1995‑Ohio‑171, ¶ 67, for the principle that trial court proceedings are presumed regular unless the record demonstrates otherwise. On this basis, the majority presumes that the trial court properly considered the evidence submitted with the motion, despite the lack of an explicit description of a hearing.

V. The Court’s Legal Reasoning

A. Scope of Review: Limiting to the Accepted Proposition

The majority begins by narrowing the case: although Bostick’s briefing discussed the materiality and impact of the police report, the Court emphasizes that it granted review of only a procedural proposition—whether a trial court must conduct an evidentiary hearing (particularly an oral hearing) on a Crim.R. 33(A)(6) motion based on newly discovered evidence.

Citing State v. Wilcox, 2024‑Ohio‑5719, ¶ 16, the Court declines to reach issues beyond the scope of the accepted proposition, including the ultimate weight of the new evidence or whether there was a “strong probability” of a different result.

B. Interpreting “Hearing” in Crim.R. 33(A)(6)

The majority’s core interpretive move is textual: Crim.R. 33(A)(6) refers to a “hearing” at which the defendant “must produce … the affidavits of the witnesses by whom such evidence is expected to be given,” and allows postponement to permit counsel to secure such affidavits. The State may respond with “affidavits or other evidence.”

From this, the Court reasons:

• The rule contemplates a process centered on affidavits and documentary submissions—not live witness testimony as a default;
• When the rule says “hearing,” it is referring to an evidentiary consideration of these materials, not necessarily a formal oral proceeding;
• This understanding is reinforced by Pruszynski and Hooten, which recognize that “hearing” can include nonoral, paper-based evidentiary review conducted at the court’s discretion.

The Court thus draws a distinction between:

• An evidentiary hearing: consideration of sworn evidence (affidavits, depositions, documents) in resolving the motion; and
• An oral evidentiary hearing: a live proceeding with witnesses, cross-examination, and a courtroom session.

Crim.R. 33(A)(6), in the majority’s view, requires the former but leaves the latter to the trial court’s discretion.

C. Reconciling and Clarifying Hatton

Recognizing that Hatton spoke of a right to an “evidentiary hearing” after leave is granted, the majority clarifies:

“To the extent that our decision [in Hatton] can be read to require such a [oral] hearing, we clarify … that while an evidentiary hearing—one in which the trial court considers affidavits or other sworn statements submitted to support the defendant’s motion—is required, the decision whether to hold an oral evidentiary hearing is left to the discretion of the trial court.” (¶ 19)

Thus, Hatton is not an oral-hearing mandate; rather, it mandates that trial courts do more than summarily deny without considering sworn evidence.

D. Application to Bostick: No Abuse of Discretion

Having established that an oral hearing is discretionary, the Court then examines whether the trial court abused that discretion by deciding Bostick’s motion without one.

The majority points to several considerations:

• No request for oral hearing: In his motion for a new trial (essentially a re‑filing of his leave motion), Bostick did not request an oral hearing. The only reference to hearings in his motion was an acknowledgment that trial courts have broad discretion whether to hold one.
• Long pendency with no further action: During the more than one-year period while the motion was pending, Bostick did not ask to submit additional evidence nor request a live hearing.
• Appeal arguments: In the Eighth District, Bostick’s complaint was that the court denied his motion “without a hearing,” but he did not argue that he had been prevented from presenting evidence or that he had any witnesses or new affidavits to offer at a live proceeding.
• Presumption of regularity: Absent evidence to the contrary, the Court presumes that the trial court considered the police report, counsel’s affidavit, the State’s response, and all submissions when it denied the motion. (¶ 20 n.4, citing Phillips.)

The majority thus concludes that it would be “hard-pressed” to find an abuse of discretion where:

“One would be hard-pressed to conclude that a trial court abused its discretion when it declined to hold an oral hearing that was never requested.” (¶ 20)

On that basis, the denial of the motion without an oral hearing is upheld.

E. Rejecting the Dissent’s Structural Demands

Justice Brunner would require that:

• The record explicitly reflect when and how the evidentiary hearing (even if nonoral) was conducted; and
• The trial court issue findings of fact and conclusions of law when denying a Crim.R. 33(A)(6) motion supported by substantial new evidence.

The majority expressly declines to impose such requirements, noting:

• Crim.R. 33(A)(6) does not mandate findings of fact and conclusions of law;
• The rule does not require the trial court to specify the date on which it considered particular pieces of evidence; and
• It would be improper “judicial fiat” to add such obligations into the rule. (¶ 19 n.4)

The Court adopts a minimalist view: the rule requires that the court consider the evidentiary materials; it does not require a particular level of written explanation or record detail, although such detail may be best practice.

VI. The Dissent’s Legal Reasoning and Concerns

A. No Evidence of Any Hearing in the Record

The dissent’s first and most forceful point is that:

• The trial court’s entry is a summary, one-sentence denial;
• There is no transcript of any hearing;
• The entry does not indicate that a hearing (oral or nonoral) occurred; and
• Therefore, it is improper for the Supreme Court to presume that an evidentiary hearing took place at all.

Justice Brunner observes that “summary” means “without the usual formalities,” and argues that one cannot infer compliance with Crim.R. 33(A)(6)’s hearing requirement from a silent, terse entry. In her view, the majority’s assumption that a nonoral evidentiary hearing occurred is unsupported by the record.

B. Due Process and Postconviction Procedures

Relying on Harris, Osborne, and Gutierrez, the dissent stresses that:

• Once Ohio has created the procedural avenue of a Crim.R. 33(A)(6) motion, due process entitles defendants to certain “essential” procedures to make that process meaningful.
• Those procedures include “careful consideration and plenary processing,” and an “full opportunity for presentation of the relevant facts,” especially when a miscarriage of justice is alleged.
• A bare, summary denial—without indication that the court actually reviewed the evidence—does not meet that standard.

The dissent does not argue that an oral hearing is always required, but insists that:

“An entry denying a motion for a new trial under Crim.R. 33(A)(6) should reflect that an evidentiary hearing was held. If the entry does not reflect this, we can neither divine nor concoct what the court may have done.” (¶ 25)

C. Strength and Nature of the New Evidence

Justice Brunner also places considerable emphasis on the substance of the new evidence:

• Griffin’s initial hospital statement naming McCann as the shooter;
• His familiarity with McCann (“Bud”) and description of McCann’s car;
• Subsequent police actions (stopping the described car, arresting McCann, confirming nickname and presence at the scene).

Under Neil v. Biggers, such an immediate, detailed identification carries a presumption of reliability, arguably greater than a later trial identification after passing time and intervening events. The dissent argues:

• This report powerfully supports the defense theory that McCann was the shooter;
• It could have been used to impeach Griffin’s trial testimony and to challenge the adequacy of the State’s investigation; and
• It clearly constitutes “substantive grounds for relief” and a prima facie claim for a new trial.

The stronger and more potentially exculpatory the new evidence, the more problematic a summary denial appears.

D. Best Practices and Proposed Requirements

Drawing on prior concurring opinions in State v. Miller, 2023‑Ohio‑3448 (Kennedy, C.J., concurring) and Hatton (Donnelly, J., concurring), the dissent underscores that:

• Summary denials are “not the best practice” and impair meaningful appellate review;
• Trial courts should hold hearings “as a regular practice” when new evidence undermines the theory of guilt used at trial; and
• Trial courts should issue findings of fact and conclusions of law in denying such motions.

Justice Brunner would go further and effectively require, at a minimum:

• A record notation of the type and date of the evidentiary hearing (oral or paper-based);
• An opportunity for both sides to present or contest evidence; and
• A reasoned decision with findings and conclusions capable of appellate review.

E. Critique of the Majority’s “No Request, No Error” Approach

Finally, the dissent criticizes the majority for placing weight on the fact that Bostick did not request a specific type of hearing:

“Nothing in Crim.R. 33(A)(6) requires Bostick or someone in his position to request a particular type of hearing. Judicially modifying the language of Crim.R. 33(A)(6) to require that a movant specify what type of hearing the court should hold will shake the public’s confidence in the reliability of the justice system in Ohio.” (¶ 31)

In her view, it is the court’s responsibility, not the defendant’s, to comply with the rule’s hearing requirement and to create a record showing that it has done so.

VII. Simplifying Key Legal Concepts

A. What Is a Motion for New Trial Based on Newly Discovered Evidence?

A Crim.R. 33(A)(6) motion asks the trial court to set aside the conviction and grant a new trial because:

• New evidence has surfaced after the trial;
• The defendant could not have found this evidence earlier with “reasonable diligence”; and
• The evidence is “material to the defense” and, under Ohio case law, creates at least a strong probability that the result would be different in a new trial.

Typical examples include:

• Previously undisclosed police reports or forensic results;
• New eyewitnesses or recantations of prior testimony;
• New scientific evidence undermining prior forensic conclusions.

B. Motion for Leave and “Unavoidably Prevented” (Crim.R. 33(B))

Because Crim.R. 33(B) imposes a 120-day limit for newly discovered evidence motions, a defendant who discovers new evidence late must first obtain “leave of court” by showing:

• He was “unavoidably prevented” from discovering the evidence within 120 days of the verdict; and
• He proves this by “clear and convincing evidence” (a high probability standard, more than a mere preponderance, less than beyond a reasonable doubt).

Only after leave is granted does the court reach the merits of whether the new evidence warrants a new trial.

C. Evidentiary vs. Oral Hearings

In everyday terms:

• An evidentiary hearing is any process in which the court formally considers evidence—affidavits, sworn declarations, depositions, documents, or live testimony—to resolve a motion.
• An oral hearing is a live, in-person (or sometimes remote) court session where lawyers appear, argue, and may call and cross-examine witnesses.

Bostick holds that Crim.R. 33(A)(6) requires the former but leaves the latter to the trial court’s discretion.

D. Abuse of Discretion

“Abuse of discretion” is a deferential standard of appellate review. A trial court abuses its discretion when its decision is:

• Unreasonable – there is no sound basis in the record;
• Arbitrary – based on whim, not judgment; or
• Unconscionable – grossly unfair or shocking.

Under this standard, appellate courts do not simply substitute their judgment for the trial court’s; they intervene only when the trial court clearly errs in how it exercises its choice among permissible options.

E. Presumption of Regularity

Courts operate under a “presumption of regularity”: unless the record affirmatively shows otherwise, higher courts presume that lower courts followed the law and considered the materials before them. This presumption works against defendants who argue that a court failed to consider evidence where the record is merely silent.

F. Withheld Exculpatory Evidence (Brady-Type Claims)

Although the Supreme Court did not reach the merits, Bostick’s claim fits the pattern of a Brady violation:

• Under Brady v. Maryland, 373 U.S. 83 (1963), prosecutors must disclose evidence favorable to the accused that is material either to guilt or punishment.
• A police report containing an initial identification of a different perpetrator is classic exculpatory (or at least impeaching) evidence.
• If deliberately or negligently withheld, such evidence can form the basis for a new trial if it is “material” (i.e., there is a reasonable probability it would have affected the verdict).

That underlying theory amplifies the stakes of the procedural ruling in Bostick.

VIII. Impact and Implications

A. Clarified Rule: Evidentiary Hearing Required; Oral Hearing Discretionary

The doctrinal core of Bostick is now clear Ohio law:

• Mandatory: A trial court must treat a Crim.R. 33(A)(6) motion as an evidentiary matter and consider sworn evidence (affidavits or similar materials).
• Discretionary: Whether to convene an oral hearing with live testimony and argument is up to the trial court.

This removes any lingering ambiguity from Hatton and prevents litigants from arguing that oral hearings are invariably required once leave is granted and substantive grounds are alleged.

B. Practical Effects for Trial Courts

For Ohio trial judges, Bostick offers both flexibility and guidance:

• Courts can manage heavy dockets by deciding many Crim.R. 33(A)(6) motions on the papers, especially where:
  • The affidavits are thin or obviously cumulative;
  • The new evidence is plainly immaterial or non-credible on its face; or
  • The motion fails even if the facts in the affidavits are taken as true.
• However, trial courts must ensure that:
  • They actually review all affidavits and exhibits;
  • The record shows what materials were before the court; and
  • The process, though possibly nonoral, is genuinely evidentiary.
• Although not required, issuing brief written reasons or findings will:
  • Strengthen the presumption of regularity;
  • Facilitate appellate review; and
  • Guard against the kinds of due-process concerns raised in the dissent.

C. Strategic Considerations for Defense Counsel

Defense counsel filing Crim.R. 33(A)(6) motions after Bostick should adjust strategy:

• Always request a specific type of hearing if needed.
  While not legally required, failing to request an oral hearing will make it difficult to argue on appeal that the trial court abused its discretion by not holding one.
• Maximize the evidentiary record on paper.
  Because courts may resolve motions nonorally, affidavits should be detailed, corroborated, and as comprehensive as possible. Counsel should anticipate that this may be the only evidence ever considered.
• Identify what a live hearing would add.
  If asking for an oral hearing, counsel should explain:
  • What witnesses would be called;
  • What new information they would provide beyond the affidavits; and
  • How cross-examination is necessary to resolve credibility issues that cannot fairly be resolved on paper.
• Preserve objections and due-process arguments.
  If the court denies a motion summarily, counsel should consider filing a motion for reconsideration or clarification, explicitly raising the lack of hearing and lack of record as potential due-process issues.

D. Implications for Prosecutors

For prosecutors, Bostick emphasizes:

• The continuing duty to disclose exculpatory evidence, both pretrial and in postconviction contexts;
• The availability of affidavits and documentary rebuttal at the Crim.R. 33(A)(6) hearing stage;
• The strategic value of fully joining issue on the papers, knowing that the court may rule without a live hearing.

The decision also bolsters finality by avoiding a mandatory-oral-hearing rule that would significantly burden courts whenever new evidence surfaces.

E. Appellate Review and the Presumption of Regularity

Bostick makes clear that:

• Appellate courts will presume that trial courts properly considered all materials unless the record affirmatively suggests otherwise;
• A silent record will usually be construed against the appellant, not against the trial court;
• Consequently, appellants will need to show more than the absence of an oral hearing to demonstrate abuse of discretion.

At the same time, the dissent’s concerns may influence lower courts to create somewhat more developed records, even if not explicitly required.

F. Tension Between Efficiency and Robust Postconviction Review

At a broader level, Bostick reflects an ongoing tension in criminal justice:

• Efficiency and finality: There is a strong institutional interest in preserving final judgments and avoiding repetitive or resource-intensive hearings, especially given the volume of postconviction filings.
• Accuracy and fairness: At the same time, late-discovered exculpatory evidence—particularly evidence that someone else may be the true perpetrator—implicates fundamental concerns about wrongful convictions and the legitimacy of the system.

The majority’s approach leans toward efficiency (discretion, presumption of regularity, no mandatory oral hearing or findings), while the dissent presses for a more robust, transparent process whenever serious new evidence surfaces.

IX. Conclusion: Key Takeaways from State v. Bostick

State v. Bostick, 2025‑Ohio‑5559, is primarily a procedural precedent, but one with substantial practical consequences:

1. Crim.R. 33(A)(6) requires an evidentiary hearing but not necessarily an oral one.
   Trial courts must consider sworn evidence (affidavits, documents, etc.), but have discretion to forgo live testimony and argument.
2. Hatton is clarified: the right to an “evidentiary hearing” on a new-trial motion after leave is granted is satisfied by a meaningful paper-based process; an in‑person hearing is not automatically required.
3. Oral hearings are discretionary and reviewed under an abuse-of-discretion standard.
   Failure to request an oral hearing significantly weakens any claim that the trial court abused its discretion by not holding one.
4. The record’s silence favors the presumption of regularity.
   Absent explicit evidence to the contrary, appellate courts will presume that trial courts have complied with Crim.R. 33(A)(6) and properly evaluated the evidence, even where the entry is summary.
5. The dissent highlights due-process and transparency concerns.
   Justice Brunner’s opinion underscores that summary denials without clear evidence of a hearing risk undermining confidence in the justice system, especially where powerful exculpatory evidence is alleged.

For practitioners, the decision underscores the importance of:

• Building a comprehensive evidentiary record on paper;
• Explicitly requesting an oral evidentiary hearing where live testimony or credibility assessment is important; and
• Pushing, where appropriate, for reasoned written decisions to safeguard meaningful appellate review.

In the broader Ohio legal landscape, Bostick cements a flexible, trial-judge-centered model for handling new-trial motions based on newly discovered evidence, balancing efficiency with a baseline requirement of evidentiary consideration. How vigorously trial courts and appellate courts implement the dissent’s cautions about summary denials will shape the real-world protection that Crim.R. 33(A)(6) affords to defendants who uncover significant new evidence after conviction.