I initially rejected the idea of writing a post on this topic because I think it’s stupid. (Although I like Bennett’s tangent on ethics.) The defense ought to get Xeroxed copies of offense reports. This whole “we can’t give it to you because your scumbag client is going to nuke us all if we do” argument is… stupid and tiresome and I’ve blogged on it before. Like Scott, I can only write the same thing so many times without boring myself.
Besides, Travis County has a decent if imperfect system where defense lawyers get ORs in most cases. Perfect, if you have to ask, would be getting it in every every every case.
So I was going to skip it, until this last comment caught my eye:
Grits, the OR never gets entered into evidence…therefore, it does not become a public record. Even if we do win a case.
Apparently this anonymous prosecutor never read Texas Rule of Evidence 614, or had it used against him:
RULE 612. WRITING USED TO REFRESH MEMORY
If a witness uses a writing to refresh memory for the purpose of testifying either
(1) while testifying;
(2) before testifying, in civil cases, if the court in its discretion determines it is necessary in the interests of justice; or
(3) before testifying, in criminal cases;
an adverse party is entitled to have the writing produced at the hearing, to inspect it, to cross-examine the witness thereon, and to introduce in evidence those portions which relate to the testimony of the witness. [Emphasis Added]
If it is claimed that the writing contains matters not related to the subject matter of the testimony the court shall examine the writing in camera, excise any portion not so related, and order delivery of the remainder to the party entitled thereto.
Any portion withheld over objections shall be preserved and made available to the appellate court in the event of an appeal.
If a writing is not produced or delivered pursuant to order under this rule, the court shall make any order justice requires, except that in criminal cases when the prosecution elects not to comply, the order shall be one striking the testimony or, if the court in its discretion determines that the interests of justice so require, declaring a mistrial.
It doesn’t happen often, but I have had occasion to introduce an offense report after a police officer used it to “refresh his memory”. The reason it doesn’t occur frequently is that it’s only the adverse party that can do this, and as you might expect, police reports don’t always contain gems for the defense.
Except sometimes they do. I’ve got a case pending right now with what Bennett likes to call the “Nasty Little Surprise”. It’s a possession of marijuana case where I can prove that at least one very important line in the OR is a complete fabrication on the part of the officer. It’s not even necessary that the witness deny making the statement; simply that he refreshes his memory with the document, which he certainly will do.
So, if you want to, have it admitted. And allow yourself an extra chuckle if the prosecutor wasted some of his voir dire on “Why you the jury aren’t allowed to see the police report”.