Not to open old wounds but to get to the "how to" of this thing I would like to hear some thoughts and opinions. First: Does anyone think the new law requires prosecutors to be proactive in the obtaining of information. "the State shall produce . . . evidence material to any matter". In the past there have been occasions of where I was aware of evidence that could be material but did not require the officers to provide it to me because I did not intended to use it at trial, for example, the 911 call, reports of an earlier event that had bearing but would not help establish any fact that I needed for my elements [but not Brady]. In the past I have told the defense if they want it they can issue their own subpoenas. Will that still be permissible or do I now have a duty to locate and turn over all information in possession of the State of Texas or anyone under contract with the State. Second: does the new law expand that which the defense is entitled? I know that work product & privileges still exist but what about things like officer personnel files and grand jury testimony? Third: what does the language "as soon as practicable" mean. May I wait until the matter is indicted, twenty days prior to trial or does it mean that as soon as the defense requests it I must turn it over and continue to turn over as the case evolves. This part is important to design the system for turning over. If it is a one time thing late in the game fairly easy. If we have to turn over each item that comes in over the course of the case, the tracking of the turn over accurately will be a little more difficult. Fourth: how do you document the "providing" to things that are not actually given to the defense, i.e. criminal histories, child interviews, etc. Lastly: any ideas how to track the post conviction turn over requirements of subsection (k) particularly if the defense attorney withdraws immediately after the case.

Not entirely clear why they kept the "constitute or contain evidence" language from the existing law after removing the good cause requirement. But, our position should certainly be that only the items specifically mentioned in the preceding laundry list are subject to disclosure. It would be an absolute nightmare if the prosecutor must now marshal evidence desired by the defense merely because it is allegedly "material to any matter involved in the action." That phrase has never been construed to my knowledge. Of course, an interesting question would be whether things in the list must actually constitute or contain something that can be introduced as evidence. We already know offense reports are not admissible as evidence. Your timing and post-conviction issues are great questions, but all we have to answer them is the statutory language, so we cannot possibly know the answers with any precision, for a while.

Another point should be driven home. The trial courts should no longer be involved in scope of discovery issues. There is no right to discovery apart from the statute and Brady-Bagley, and the motion practice under the present statute will be eliminated come January 1.