I know some offices read Texas Govt Code 411.083-.085 as prohibiting the disclosure of Criminal History information to the defense under any circumstances. Some offices still provide all CCH information to defense for the defendant and witnesses, while some just provide it for witnesses when it contains impeachable offenses. The Government Code seems to forbid it without a court order.
In light of the Michael Morton Act, has there been any guidance on when CCH information can be disclosed. I am always for giving over everything. The MMA requires broad disclosure and there are several bits of language one could argue would apply to criminal histories of both the defendant and witnesses.
Has there been an AG opinion on the issue or any formal guidance from DPS?
Originally posted by Andrea W: The Government Code only forbids handing over the TCIC printouts, as far as I know. We summarize the contents to hand over to the defense -- offenses, dates, cause numbers, dispositions.
So you retype the whole thing in every case and provide it on a notice or do you just redacts everything on the printout and hand it over?
Govt Code 411.083 forbids disseminating "Criminal history record information" which it says means information collected about a person by a criminal justice agency that consists of identifiable descriptions and notations of arrests, detentions, indictments, informations, and other formal criminal charges and their dispositions.
I read that to include the information, not just the printouts.
39.14(a) only allows withholding requested information if it is protected by privilege or if it is not material. Most of the protected item in the Government Code are considered "confidential" which is a lower level of protection than privileged and therefore must be disclosed if requested, unless it is not material. Most of the guidance for materiality are found in Brady jurisprudence that would be difficult or impossible to apply to pretrial discovery unless the defense strategy was somehow obvious to the state. And besides, the Bar says that "Morton is broader than Brady."
39.14(e) and 39.14(f) expand the circle of confidentiality out to include the defense attorney. This confidentiality applies not only to evidence deemed confidential by the Government Code, but also to everything disclosed to the defense that is not already public. An ethics opinion says a defense attorney must abide by (e) and (f) even if the client discharges the attorney and demands his file.
39.14(h) creates an affirmative duty to disclose anything that is exculpatory, impeachment, or mitigating even if it is not requested by the defense and even if it is privileged. "Notwithstanding any other provision ..."