TDCAA TDCAA Community Criminal Brady-include consulting expert's opinion re sanity at time of offense?
Does Brady require disclosure of a prosecution's consulting psychiatrist's opinion re whether D was insane at time of offense, if the opinion is not helpful to the prosecution? D was examined by the prosecution's consulting psychiatrist year after the offense re defense of insanity--PTSD.
Yes. It's favorable to the defense.
A good rule of thumb once stated by someone wiser than I was that if you have to ask if something is Brady material, then it is.
A better rule is open file, imho. Completely open. Solves all problems.
My team once had to spend 20 pages of writ response and bring a witness back from Russia in order to respond to a non-existent, inadmissible, and unfavorable opinion from an expert. It was a beating. Better to turn it over and then defend the ineffective assistance of counsel claim when the defense doesn't achieve anything with the report.
+ 1 on open files. BUT open files are not a total panacea. Be acutely aware that Brady violations can occur even with an open file policy. Take a look at Chip Wilkinson's TDCAA publication "Brady Duties & the Pre-trial Disclosures of Evidence" at 15.
I've read those cases, Mr. S, and just looked at them again. Isn't there a case out there about going one step further and providing a copy of the state's file as satisfying Brady as long as it is properly supplemented?
When I provide a copy of the state's file pretrial to defense counsel, sans tcic and ncic, in my response letter I include the following statement if I find no Brady material:
" I am tendering you a copy of the State's file and although the undersigned is not aware of any exculpatory evidence, the file is being provided to you for notice of any evidence that may be so interpreted by you."
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