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?