Our defense bar is very unhappy we are using a 39.14 waiver (which only waives further discovery of inculpatory evidence AND NEVER exculpatory evidence). Anybody else dealing with this?

Do we need a waiver?

Should it blow up a plea if counsel won't agree or acknowledge the waiver?

I've also heard some judges won't allow a waiver? Anybody run into this?

I was pretty sure I had thought this all through already, and a waiver was the way to go when we enter a plea. Things are getting messy, though. Anybody out there running into any new related 39.14 issues?

We've had minimal pushback on similar language. I plan to tweak it a little bit to ensure no one can read it as a waiver of exculpatory/impeaching/mitigating.

We've had more pushback over our inclusion of language acknowledging their duty to redact.

This message has been edited. Last edited by: JohnR,

I am unclear on what is being waived. If there has been no request made under 39.14, then there is nothing to waive (no discovery right aside from Brady has come into existence). If a request has been made, then are they waiving full compliance or any defective compliance with the request? If informal discovery is being provided, then 39.14 is waived merely by the failure to make a request (the triggering event).

Most of the letters of rep we receive include a request pursuant to 39.14. All of our local attorneys must have discussed it.

All we are asking is the waiver of any further right to inspect or copy discoverable items other than Brady and/or subsection (k) items.

Does anyone have any language they would be willing to share that they use to have defendants waive rights to further discovery, post-case disposition?

Discovery requests for material evidence under 39.14(a) CAN be withdrawn but 39.14(h) creates an automatic affirmative duty for the state to disclose exculpatory, impeachment, or mitigating evidence, even in the absence of a discovery request.

Article 39.14(n) basically says that discovery rights can't be waived. Only "equal or greater" discovery rights for the defendant are acceptable. This is the exception that proves the rule.

There is nothing ambiguous about "the state shall promptly disclose" language in article 39.14(k). No waiver could satisfy the "equal or greater" requirement.

39.14(n)  This article does not prohibit the parties from 
agreeing to discovery and documentation requirements 
equal to or greater than those required under this article.  

Edit: full text of 39.14(n)