Criminal Discovery Rules Allow the State to Hide the Ball

When someone gets arrested in Austin, Texas and comes to see me for help with their case, one of the things they are usually surprised to find out about the system is the length of time it takes to get a copy of the police report – several months for a misdemeanor, sometimes never on a felony.

That’s right: I said sometimes never on a felony – at least until after a witness has testified during trial, and has used the report to refresh his memory.

We are actually fortunate in Travis County that the prosecutors, at least on misdemeanors, are so generous with sharing “their police report” with the defense lawyers. The law in Texas does not require that they do so.

Yesterday’s ACLU press release brought this topic to mind (Secret Evidence Allowed in Criminal Courts Unfair). They have brought suit in Ohio to change the criminal discovery process in that state:

“Allowing prosecution and defense equal access to all evidence creates a level playing field in courts,” said ACLU of Ohio Legal Director Jeffrey Gamso.  “Under the current system, prosecutors have a huge advantage over the defense because they can investigate and prepare evidence that the other side may not know about until it is presented at trial. The Constitution guarantees that every person is entitled to a fair trial, but such rules greatly decrease the ability for a person accused of a crime to mount a defense.”

Obviously, at least from the major media outlet perspective, this becomes most important in cases of actual innocence, because those who are wrongly convicted receive (perhaps justifiably) the most press. 

Yet there is another more practical reason (besides fairness) why Texas and other states should be required by statute to share their entire file with defense attorneys: not doing so wastes time and money. From the same ACLU release:

Evidence shows that if the accused know all of the evidence against them, they are more likely to resolve the matter without a trial saving jurors, judges, court appointed counsel and prosecutors’ time and money.

This should be a no brainer. There is no good reason to deny the defense full access to all of the prosecutor’s information.  It should never be an issue of whether or not the defendant is guilty.

Travis County does a good job overall with this, especially when compared to other Texas counties, but the local rule on open discovery needs to be extended to even the most serious felonies here, as well as apply to “minor” felonies and all misdemeanors.

If the defense lawyer is allowed to copy the entire police report in a first time misdemeanor marijuana case, does it make sense to hide the ball when it comes to murder?

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Comments (6) Read through and enter the discussion with the form at the end
MELANIE WALKER - February 26, 2008 9:59 AM

WHAT IS A CRIMINAL DISCOVERY PACKET? WHAT IS IN A CRIMINAL DISCOVERY PACKET?

delores - April 15, 2008 2:17 PM

what is a 1245? We were told by a austin lawyer that my son could get a 1245, for two cases, one would drop and he would not be convicted and the other case he would be convicted for. theft under 1500.pay a fine, restitution,2yr probation, community service. he could not be offered deferred adjudication because of the two cases. Is that true and is this the best advice my son is only 19 in college and made stupid choices twice in one year when he was 18 and in high school. Are there other options?

kristal - June 20, 2008 9:51 AM

On March 13, 2008, I was involved in an assault that took place in the H-E-B parking lot at Mcneil and Parmer. My ex's family had been keeping my daughter from me for almost two months. I pull up to a local H-E-B and there they are. I proceeded to get my child when my ex's sister(which was 8 month pregnant) grabs me with my daughter in my arms. As I lean over to protect her the mother then jumps on my back. Pretty sad huh. Well I eventually break loose and leave the H-E-B. Later ,y door is kicked in by APD Saying i kidnapped my daughter. When the idiots figure out I have legal guardianship, they then arrest me for assault on my ex's mother. I am still in process of my criminal court. The H-E-B will not release the video, so what do I do? There are false affidavits saying I assaulted these women. How can I get the camera footage to prove my innocence? When arrested I was told they were going to go request the footage, did the hell no!!! APD is a bunch of crooked assholes. Thanks

Jody - July 23, 2008 12:27 AM

I had a question about medical malpractice. I read that you have 3 years. what if I didn't find out proof of a hospitals negligence on paper until now? I went in to ER for pain in 1998 and given an ultra sound and told that I had no gallstones on the scan. A month later I almost died from over 50 gallstones clogging ducts to liver pancreas etc. Almost died. I just found a record that states that at the time of surgery they reviewed my scan taken that day with the one a month prior which is when I went to the ER the first time for pain. I had the stones on the first scan and they made a mistake and told me I had nothing and released me. Is it too late to make them pay for their error? They knew what they did and said nothing.

JOHN STEVENSON - April 25, 2012 7:37 AM

What is the motion, demand, request, whatever that the Defense files to get full access to the evidence that the prosecution has prior to trial? Is it normal to do this?

JOHN STEVENSON - April 25, 2012 8:06 AM

What is the motion, demand, request, whatever that the Defense files to get full access to the evidence that the prosecution has prior to trial? Is it normal to do this?

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