I am receiving increasing pressure from defense attorneys to send them copies of offense reports and video tapes in DWI cases; my policy for the past seven years has been that defense attorneys can come to my office, view the reports and tapes, and make notes, but not copies. I am the CA in a small town 30 to 70 miles from most of these defense attorneys, so they don't like to come to my office. What do the rest of you do, and why?

Kim, you will want to be sure to read the last discussion on this topic. Discovery Policies. I see no problem with forcing the attorneys to come to your office, but we experience the same thing with one of our counties (whose courthouse is 68 miles from our office). We generally try to cart materials (videos) with us to that courtroom for examination by the attorneys there, but that type of solution is not available to you. Good luck figuring out the best way.

I am more than willing to make a copy of the basic report - while it isn't technically discoverable, most are either good enough to convince the defense attorney to plead, or are bad enough that I know I have a weak case.

On videos, I purchased the equipment out of the hot check fund to copy them, but do not have the manpower. My rule is that they video and equipment is here; if you want a copy, make it! Some out of town attorneys have contacted their local friends to make copies for them. THe locals often send their secretaries over, start the copying, and come back in a couple of hours.

My judges require the defense attorneys to make an appointment to come view our file and visit with us about the case and the potential for a plea. They actually schedule it as part of a setting order. This generally works well since we are an hour between Beaumont and Houston, the major sources for our defense bar. Some attorneys honor the settings and some don't. But regardless, we can announce in court that the conference was scheduled and there can be no more talk of not having had access to us or our files.
I firmly support the idea of an open file policy. We don't however, copy our reports. They can sit at a desk in an outer office and read to their hearts' content. He have been making copies of tapes if they provide a blank. But I like Lisa's policy of just providing the equipment. My secretaries spend too much time on it and some attorneys deliver stacks of tapes for all their cases and then complain at docket call that they don't have a copy yet when they should have watched it at the scheduled conference. I might institute that policy.

I have enjoyed, both as a prosecutor and a defense attorney, the policy of our DA. Copies! Unless it is a capital case, you may have a copy of everything in their file. In my mind, it cuts down on motions. They also charge us for the copies, .20 a page. Then we can take the reports, statements, videos, etc... and review them with our clients. Once the client sees how people would testify, in black and white, they usually want a plea (well that could also be because Bud's office screens all cases well). Another DA I work with will give you a copy of the file, for free, but the agreement is that they do not have to file a witness list for trial. If you require a list of witnesses, and file your motion, they only will give you notice of witnesses not mentioned in the reports.

It also cuts down on appointed attorney hourly costs because they do not have to transcribe the file. A murder or agg sx assault folder can be very thick, and you have to take good notes to talk with your clients. All in all, open files with copies are the best all around.

One thing that I have discovered about letting the attorneys copy their own tapes - those who are "short handed" often come make their own, viewing them at the same time and wander over to visit with me about a plea............

This has been a constant problem in my office. For years this office copied the entire file for defense attorneys and mailed it to them in what became known as the "discovery packet." Over the years, the attorneys began to see this as a right and not the great privilege that it was. They began to object during trials that they "did not receive this in the discovery" and would ask for exclusion of the evidence or delays. After hearing this over and over, I blew up one day and changed the policy. We needed to change it anyway because the tremendous increase in caseload over the past decade made it impossible to spend the time copying the files for the defense. My new policy was that the attorney must come to my office on a non-docket Thursday or Friday and make their own copies. We provide the machine and I even bought a VCR with two slots so that the attorneys can watch the tapes and make their own copy at the same time. You would not believe the amount of complaining that I heard when I changed the policy. The attorneys had come to expect my office to do their job for them and the indignation at actually forcing them to do their own work was amazing. Some of them stopped taking appointments in my three counties. Really hurt my feelings. They showed me, didn't they. Bottom line: I was shocked at the number of attorneys who refuse to drive 50 miles to do their job. Of the defense attorneys who do business in my district, only about a handful of them care enough about their clients or their own professionalism to come spend an hour copying a file. We no longer hear any whining about not getting discovery. We have a stamp that is put on the file when the attorney comes into the office to make his or her copies, which requires the attorney or his representative to sign. The attorneys can no longer complain that "I didn't get my discovery." It works much better. I also made it clear to the attorneys that I would consider it appropriate to cut off discovery completely for any attorney who abuses the privilge ... for example, by claiming they did not get discovery when they never showed up to get it. My recommendation to prosecutors: make the attorneys come to your office and get the discovery.

We give them only what they are entitled to. No reports, nothing else. I have received a temendous amount of pressure to loosen up and give them the reports. I have considered doing so. Does anyone stick to the letter of the law on discovery?

I don't give out copies of reports either, nor do I allow the attorneys to read them. I do provide a copy of DWI videos, but I have the arresting agency make the copy on a tape provided by the attorney. I will discuss a case with an attorney in person or on the phone, and I may even quote something from the report. This seems to work well for us.

Over the last few years, there having been a growing number of claims of ineffective assistance of counsel. Many of those claims, particularly as to capital murder cases, focus on the defense bar's failure to conduct sufficient pretrial investigation and discovery.

But who pays the price for that incompetence? The prosecutors who have to retry the case and the victims who have to testify a second time.

Merely copying material and handing it over to the defense bar has not shown to be an effective method for getting the defense bar to do their job. There certainly are many diligent, effective defense lawyers, but it seems the system has to be designed for the slowest mind. Many defense lawyers are not even watching the recorded information.

Consequently, I agree with the approach of requiring a defense attorney to come to a prosecutor's office and obtain discovery through the prosecutor. It confirms for us that the defense attorney has, at least, heard what evidence we have against his client.

We will make a copy of the recordings for the defense attorney (if they contain the defendant's confession), and lab reports, complaints and search warrants. Disclosure of the contents of offense reports and witness statements is discretionary and often depends on the nature of the case and the professionalism of the defense attorney.

Of course, any Brady material is disclosed before trial.

Most importantly, is the conversation that takes place between the prosecutor and defense attorney. Proper discovery simply can not take place without that meeting.

To expedite discovery and resolving pending cases, I allow defense attorneys (not legal assistants, paralegals, etc., in order to get a plea offer communicated) to personally inspect the entire file, except for victim report and computer criminal history information. The local defense bar pays for (and I provide room for) a photocopier. It is up to the defense bar to provide supplies and maintenance. If they bring a blank cassette, we will make a copy of any video for them. I have found that this expedites discovery and making some decision about pending cases. My attorneys will accommodate defense attorneys when they want to discuss a case; I don't want any continuances based on the fact that a defense attorney has not discussed the case with a prosecutor. It seems to work okay.

I have been through variations depending, to some degree, on the judge. We allow defense attorney's or their staff to view our file and copy anything except the offense report. We will copy video tapes if they furnish a blank tape and they are not in a hurry. If they want the tape fast, they can come and do it themselves. We do not copy recorded witness statements mainly do time constraints (However, as more and more of these statements are being recorded digitally along with photos and videos, we will copy on to a CD ROM) Our previous juge held that as long as we maintained an open file policy, this would suffice for discovery. A new judge came on board last year. He used a standard discovery order which worked fine with our open file policy except he had a provision wherein the defense could require us to file a discovery compliance notice. This listed everything the defense was allowed to examine. When the defense bar began filing requests for these discovery compliances in every case, we closed our files. My reasoning was, if we had to spend all of our time documenting what we gave the defense attorey, we might as well just give them formal (and very limited) discovery. After about six months, several members of the local defense bar came and ask to go back to the old way. I agreed and have not had any further problems.

I turn over a complete copy of the police report and witness statements if the defense attorney signs my Discovery Agreement. It requires the defense attorney to accept the obligation to inspect my file to make sure it was correctly photocopied and for future supplements, additions, etc.; waives the right to file discovery motions unless denied further discovery for a particular item after making a specific written request to me for it; and agrees to provide names of expert witnesses,etc. It has worked well; cases move a lot faster.

For videos, if they supuply a blank tape, we make them a copy.

Ken, I like that discovery agreement idea very much. Since we are giving them more than they are entitled to by law, I don't see why we shouldn't get something from them in return. How about an agreement that they waive pretrial, except for motions to suppress, which they must agree to hear during trial. I guess you could make an exception if there is a real suppression issue and hear that one prior to trial on a case by case basis. Seems to me this would save a lot of time and wasted settings.

We have an open file policy in Travis County. Except for confidential address info on victims/witnesses, our confidential notes if any regarding weaknesses etc, and witness statements, we make the whole file available to attorneys when we come to court or if they make appointments with us. Videos are available for them to copy with their blanks, on machines the defense bar maintains in our office, between 9a-4p.

My thoughts: if your case can't stand up to a defense attorney's scrutiny it doesn't belong in court. If they can't kill your case by interrogating the cops about the minor inconsistencies in the report, PC etc, then it's a good case. The quicker they realize how strong your evidence is, the quicker they plea.

As an aside, Tim, I don't care for doing that because I lose my right of appeal. Got burned pretty badly on that once in a DWI where, right before voir dire started, my meth got suppressed... had a cutesy little girl who looked pretty good on SFSTs and without the meth, we didn't have a chance. (She blew one sample and then refused, so of course no BT result... but the intoxilyzer memory said she blew a .17!)

The ones that get away are the worst!

g

Yeah, I agree that holding the motion to suppress until trial can sometimes be a problem. You might want to reserve the right in the agreement to hear a motion prior to trial if you think it might be suppressed. It also could be problematic if you have a judge you can't read or who tends to suppress evidence. Fortunately, I don't have that problem so I can be confident that hearing the motion to suppress during trial is going to work out ok. I also agree with you about showing your hand to the defense. If your case is too weak to survive the scrutiny of a defense attorney, it probably shouldn't have been filed. I also know that some prosecutors have a different philosophy about open files. They believe the defense should get nothing more than they are entitled to have by law. I think that's a valid opinion, and sometimes, with some attorneys, I consider adopting that policy myself. It's a time issue for my office. I have one assistant prosecutor and we just don't have time to deal with all the pretrials.