Our CAC Counselor would prefer for us not to subpoena her counseling notes, as we have explained we are obligated to turn them over to the defense. Also, I understand the reasoning, as we are encouraging children, who are victim's of child abuse, to engage in therapeutic counseling, and then we are turning around and giving the information to the defense, including the perp. How do other counties handle this? Don't you need the notes for preparation? Or not? Do you draft a letter explaining there are counseling notes, if the defense chooses to subpoena?
Someone much smarter than I can probably address this more thoroughly (and with sources), but as I understand it, Brady only relates to evidence in your (and law enforcement's) possession. The CAC counselor's notes are not in your possession. IMHO, by asking for them, you are effectively creating greater risk for yourself. If the counselor indicates to you that there may be something exculpatory, then you can inform the defense and request that the judge view the notes in camera.
Well… I'm not sure that's correct based on the new discovery laws (I think that WAS correct under Brady). I am honestly not totally clear on what the relationship is between the CACs and the state. But if the CAC has a contract with the state, then anything they have is considered to be in the possession of the state under the Morton Act.
Now, it may also be protected under the disclosure rules of 264.408 of the Family Code, or, depending on what is in the actual notes, they may not be material to the case and therefore not subject to discovery under the Morton Act.
But it's important to remember that documents that are in the possession of anyone in law enforcement, under both Brady and the Morton Act, are considered to be in the prosecutor's possession. The Morton Act also extends that to anyone who contracts with the state. This is the case whether the material is exculpatory or not.
EDIT: Upon closer inspection of 39.14(h), there is actually no mention in that section of the language from 39.14(a) "any person under contract with the state." Only "possession, custody, or control of the state." Another anomaly in a curiously worded bill.This message has been edited. Last edited by: Jon English,
Are you? Read Family Code Sec. 264.408. It is a specific exemption to the new discovery requirements and may apply in your case.
Thank you all for the responses. Shannon--- do you believe that exemption applies, even when the notes are exculpatory? I use the term "exculpatory" like a defense attorney--- in that almost anything can be construed as exculpatory. But a common theme is a child outcries to more in counseling sessions. Some people construe this as exculpatory as it creates an impeachment issue.
(h) Notwithstanding any other provision of this article, the state shall disclose to the defendant any exculpatory, impeachment, or mitigating document, item, or information in the possession, custody, or control of the state that tends to negate the guilt of the defendant or would tend to reduce the punishment for the offense charged.
But I understand that "exculpatory" is in the eye of the beholder. Courts have said that if prosecutors aren't sure if material is exculpatory, they should turn it over for a judge and obtain a ruling.
I agree with Jon, and add this reminder that the new law refers to exculpatory, mitigating, and impeaching material because those three terms are not synonymous; they are discrete things, even if the law applies to all of them. So be careful talking about potential impeachment information being "exculpatory", etc., because that can confuse people--especially the public, the press, and slow judges.
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