Defense lawyer wants all witness statements and officer's incident reports from any criminal file where the victim of a murder was an accused (regardless of the office (District or County atty) or county as those reports may lead to information that is mitigating to defendant's punishment (by showing that victim has the character trait of being the aggressor (404) or that he has a reputation of being violent (going toward the self defense or the punishment mitigation in that the defendant did the community a favor by killing the victim).
Do you have to go get this information from all of the police agencies, other county's district/county attorney's offices or even your own county's other prosecutorial office - and even possibly the CPS files that may have some inkling to the victim being of bad (violent) moral character?
Bruce A Hoffer
Those can be fact-specific, case-by-case determinations. Here are some past threads that touch on some of those issues:
Are you responsible for my file?
Morton and control of the state or any person under contract ...
CAC counselor's notes and Brady
You can also call TDCAA and speak to a research attorney for a more detailed response.
I agree with Shannon that the frustratingly short answer is “it depends.”
Like I said in the thread Shannon linked, 39.14 basically has this catch-all provision that seems to say anything in the possession “of the State” has to be shared on request.
There’s no further explanation in statute of who “the State” is, but there’s some case law (most of which is pre-Morton) which says the State is anyone who is part of the “prosecution team.” Which would lead to the conclusion that some other prosecutorial office not involved in your case specifically isn’t “the State,” and so you aren’t responsible for the information they have in their files. I can get you all the case law I have on that if you want to shoot me an email.
However, the other question I always ask myself in these cases (which you probably already have) is “does the defense have a point? Is that information I’d actually like to have myself in order to give myself all the facts I need?” Or more importantly... if I successfully argue that it’s not my responsibility to obtain those documents, is the defense just going to go do it themselves anyway? Because then you’re at a disadvantage if you don’t have them. You’re running the risk that you’re missing information you’re going to need to be as fully informed as the defense.
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