I have a local defense attorney filing subpoena duces tecum on my officers for trial to bring everything they have on the case. I tell them we gave them everything in discovery, but they are still doing it "just to be sure." Anyone having same issues? How are you dealing with it.
His last one was for EVERYTHING...so any contact law enforcement had with his client. He agreed it was abusive and limited it to just the case on trial.
Any exculpatory evidence an officer has must be produced without regard to any subpoena, and it seems to make little sense to me that a defendant will want to use anything of an incriminating nature as evidence. Of course, most anything might have potential value for impeachment. But, speculation about that is not sufficient. Herrera, 05-15-00119/21-CR (Dallas 5/23/16) (not designated) and Hughes, 01-11-00282-CR (Houston [1st] 1/12/12) (not designated).
Art. 24.03 requires an assertion under oath that the person is being summoned because he or she has knowledge that is "material" to the case. Although not stated in art. 24.02 with respect to things sought thereunder, caselaw requires a showing of materiality and relevance. Gallardo, 07-16-00086/87-CR (Amarillo 12/9/16) (not designated) and Cruz, 838 S.W.2d at 686. And presumably the thing must be desirable (and admissible) as evidence.
It is only a failure to produce something without legal cause that is in the witness's possession that is subject to any type of enforcement under art. 24.06(3).
A duces tecum cannot be used by a defendant to obtain something before trial. Shipkula, 68 S.W.3d at 221-22; Martin, 960 S.W.2d at 841. This may apply to the State as well. Huse, 491 S.W.3d at 845.
Bottom line: May be questionable whether it is worth moving to quash the subpoenas, although once your judge rules maybe the hassle will cease. But, I think the defense attorney is likely barking up the wrong tree and wasting paper.
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