Scott Henson writes about possible pending legislative attempts mandating reciprocal discovery in Texas, where presumably both sides, prosecution and defense lawyers, would have to turn over any evidence they have to each other. Instead, he suggests:

The reform needed here isn’t "reciprocal discovery," but simply to mandate that all Texas prosecutors maintain an "open file" policy to let defense counsel view and make copies of any documents they deem relevant to their defense. The system works well where it’s been implemented, and where it hasn’t it’s a source of constant grousing and wasted time for the already clogged courts.

I agree. They are several problems, right off the bat with the idea of reciprocal discovery. 

First, in jurisdictions where turning over Brady material is already a problem for the prosecutors, I’m not sure that legislating that they turn over “their whole file” will work either. Don’t get me wrong – I love the idea of it. I’m just pointing out that when the State can’t always be trusted to turn over exculpatory evidence, aren’t we going to have the same problems knowing that they’ve turned over the whole file?

At least it will make the “May I have a copy of the police report?” problem presumably go away.

But secondly, my fear is a spate of criminal defendants having to use the state and federal appeals process complaining that their lawyer didn’t turn over evidence “in a timely fashion” that should have been used in trial – and thus was barred from introducing it. That’s what the “reciprocal” part of reciprocal discovery means. I haven’t seen any proposed legislation, but it will probably include a provision disallowing evidence that was not turned over to the state.

Defendants should have almost no bars on the type of evidence they want to bring in to trial, whether it is exculpatory, mitigating, or really, of any quality. Scott is right. Legislation requiring the State to allow full defense access to the evidence is the only common sense solution.

  • Anita Guajardo

    My a name is Anita I came to the realization of the broken down Texas Prison System when my 16 year old son was charged with murder on May 14, 2005 and then with the aide of juvenile detention officers on May 29, 2005 my son was let out. He was found on June 11, 2005 sitting on bench at a High School in San Diego, California almost 1,200 miles away from home. He was extradited back to Abilene, TX two weeks later after Governor Rick Perry signed his ticket back to Texas.

    He was certified to stand trial as an adult on December 19, 2005 and was transferred to the Taylor County Jail and incarcerated amongst adult men. So my nightmare begins into a journey that enlightened me into the racial disparities of the Texas legal System. I started collecting stories while waiting to visit my son at the Juvenile Detention Center, and any where else I had the opportunity to, my son was also collecting stories when one day he met Moishe a 15 year old youth whom was brought in to the juvenile detention center on July 11, 2005 and was also being charged with murder.

    On October 11, 2006 a lawsuit was filed in the Northern District Court of Texas under Moishe Curtis Turner by his
    mother and next best friend, Deborah Johnson and Juan
    Manuel Albarado by his mother and next best friend Anita Guajardo, challenging the long sitting District Attorney James Eidson in his personal capacity and not as District Attorney of Taylor County and his Closed File Policy.

    Moishe Curtis Turner (black youth) was certified to stand trial as an adult on October 19, 2005 and transferred to the adult County Jail in Taylor County Abilene, Tx where he has been denied his education and put in lock-down behind tobacco many times; he is still awaiting his trial.

    Juan Manuel Albarado (hispanic youth) was certified to stand trial as an adult on December 19, 2005 and transferred to the adult County Jail in Taylor County Abilene, Tx where he has been assaulted twice by adults
    and put in lock-down continuously for tobacco; he is still awaiting his trial.
    ____________ ________ Anita Guajardo

  • Donna

    Let us not forget the 2006 Adam Walsh act, preventing cross examination of witnesses, access to computer data by forensics specialists, and the Oregon law which does not require the notes, forensics reports or other such data be turned over in a timely fashion (two weeks before trial at the latest), and failure to do so is not necessarily grounds for an extension of time – even.

  • Ace

    Quit playing the race card as far as im conserned both your kid and Moishe Turner are both murdering pieces of shit and they deserve everything that happens to them

  • michayl mellen

    11-23-09

    to Ace:
    hide behind your fake name and throw stones with your ignorance. The point is simple, the system is broke and I feel from your “Prosecutorial” comment that you may be part of the problem.

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