Criminal Discovery Comes to Texas

On the things people have the most difficulty understanding is the lack of discovery in criminal cases in Texas. The criminal discovery process is the exact opposite of the discovery process in civil cases. If you sue someone you get to request everything they have, ask questions and take depositions. By the time you go to trial you should know what everyone will testify to - and how they are going to do it.

Prosecutors  have steadfastly against providing discovery in criminal cases. Despite that, many prosecutors still provide some information. Some go so far as to provide copies of everything to defense lawyers. Others have what is called an "open file" policy, where you get to look at the file, but don't get copies. That is the case in Waco and McLennan County, where copies of reports are not provided - at least in felony cases.

That is all about to change thanks to Senate Bill 1611 - which has been dubbed the Michael Morton Act. This legislation amends Art. 39.14 of the Texas Code of Criminal Procedure. The statute now requires the prosecutors to furnish counsel with "offense reports ...recorded statements of the defendant or a witness, including witness statements of law enforcement officers".

The statute also deals with the disclosure of exculpatory information, which has always been required under Brady. Now the State must document what is provided.

There is also an additional protection - before accepting a plea, all the parties must acknowledge in writing, or on the record in open court, what what was provded in discovery. No doubt that is designed to the prevent the standard response - we gave that to you.

This is a significant step forward for the criminal justice system. While we  have to see how it will play out, it certainly appears to meet the goal of making sure all parties know what the evidence is. It will be a burden on prosecutors - and to some on defense lawyers - to document everything the looked - but so what. That's a good thing.

 

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