Criminal defense in Austin Texas.

Discovery in Texas

Posted By on November 19, 2008

I came across this in Grits for Breakfast the other day:

Theoretically, every prosecutor is required to disclose exculpatory evidence, known as Brady material, to the defense.

In reality, defendant have no way to enforce this right. The problem is that defendants in Texas have very little right to discovery. Parties in a car wreck, or a divorce case in Texas, have a much greater right to discovery than criminal defendants.

For example, police reports do not have to be turned over to the defendant. Grand jury testimony can also be withheld. That is why Brady violations are nefarious. When a prosecutor purposefully denies Brady material to a defendant, the defendant may NEVER learn about this evidence. Ergo, innocent defendants may never be freed, or learn of the evidence that could free them.

The original was by Robert Guest.

People are sometimes incredulous when I tell them police reports are not part of discovery under Texas law.  But it’s true:

Art. 39.14. DISCOVERY. (a) Upon motion of the defendant
showing good cause therefor and upon notice to the other parties,
the court in which an action is pending shall order the State before
or during trial of a criminal action therein pending or on trial to
produce and permit the inspection and copying or photographing by
or on behalf of the defendant of any designated documents, papers,
written statement of the defendant, (except written statements of
witnesses and except the work product of counsel in the case and
their investigators and their notes or report)
, books, accounts,
letters, photographs, objects or tangible things not privileged,
which constitute or contain evidence material to any matter
involved in the action and which are in the possession, custody or
control of the State or any of its agencies. The order shall
specify the time, place and manner of making the inspection and
taking the copies and photographs of any of the aforementioned
documents or tangible evidence; provided, however, that the
rights herein granted shall not extend to written communications
between the State or any of its agents or representatives or
Nothing in this Act shall authorize the removal of such
evidence from the possession of the State, and any inspection shall
be in the presence of a representative of the State.

–Texas Code of Criminal Procedure

That civil litigants have a greater right to discovery than criminal defendants is sort of ridiculous, but that’s still how it is in Texas.


2 Responses to “Discovery in Texas”

  1. Can you provide more information on this? take care

  2. I found your blog on google and read a few of your other posts. I just added you to my Google News Reader. Keep up the good work Look forward to reading more from you in the future.

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