I have a defense attorney requesting copies of all community supervision records on his defendant. I always thought these records were confidential. However, after reading recent discovery case decisions, I am wondering about that. We are taught that those records can be introduced at a hearing as business records. If that were to be the plan, wouldn't they have to be disclosed upon defense request?
If you’ve got ‘em, and you’re going to introduce them as part of a revocation hearing, then I agree that you’ve got to make sure that the defense gets them as soon as practicable.
If you don’t have ‘em, you can’t be made to acquire them and turn them over to the defense. You can’t be made to generate evidence that you don’t have.
Off the top of my head, I think the confusion is that probation records are confidential in the sense that they aren’t subject to the Public Information Act (although I’m not sure off the top of my head what the exception is), but that doesn’t mean they’re not subject to discovery once your office has them in your possession.
The issue under 39.14 is whether information is "privileged," not confidential. It seems there might be an argument that 39.14 was not intended to apply to the administrative proceedings under 42A.108(b) or 42A.751(d), but a warning in that regard was issued in Freeman, 554 S.W.3d at 818 n.3. I would be a bit concerned that the CSCD supervising officer is "a person under contract with the state" in deciding what is within your "possession, custody, or control."
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