Okay, all you old timers: isn't it time to have a discovery rule that requires the defendant to reveal his evidence? ABA recommends it. Other states have it. Why don't we?

And wouldn't it be easier to comply with Brady if we knew the defensive theory at trial? It's been my experience that many cases being reversed under Brady are not for the obvious Brady violations, but are often things that nobody considered important at the time of trial. With ample time, a good writ lawyer can develop other defensive theories, and thereby retroactively turn nearly anything into a Brady violation.

Spoken like an appellate lawyer.

How, exactly, do you expect to get such a rule enforced? Many defense attorneys will claim that disclosure of a theory before trial interferes with their ability to represent the defendant.

And, if the ABA recommends something, you better believe there is something wrong with it.

Originally posted by JB:

"Spoken like an appellate lawyer."

I know, I know, you're in "Sales," not "Warranties." But: It seems unreasonable to tell a prosecutor to give over evidence that might benefit the defense without knowing what that defense is. The over-arching theme in the post-conviction world these days is "Truth" (exonerate the innocent, convict the guilty). Perhaps it is time to honor the truth-finding function over the defense attorney's right to represent his client in any way he sees fit. I'm just sayin' . . .

quote:

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It seems unreasonable to tell a prosecutor to give over evidence that might benefit the defense without knowing what that defense is.

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Maybe the Brady material gives the defense an issue they didn't even know they had. Convicting someone is supposed to be difficult and its not designed to be "fair" to the state. Hence the presumption of innocence and the "beyond a reasonable doubt" standard.

quote:

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And, if the ABA recommends something, you better believe there is something wrong with it.

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Amen, Brother JB!

Also, it's one more issue of the defense job we'll have to worry about on appeal or a writ.

I already have to watch over the work of certain defense lawyers to ensure the case remains intact. I'm not trying to be nice to the other side necessarily, but I have enough to do without having to try the same case twice.

Originally posted by AlexLayman:

"Maybe the Brady material gives the defense an issue they didn't even know they had. Convicting someone is supposed to be difficult and its not designed to be "fair" to the state. Hence the presumption of innocence and the "beyond a reasonable doubt" standard."

Well. . . yeah, Brady is designed to give the defense helpful info they don't already know about. But that doesn't mean a trial by ambush should be the order of the day. It's not about what's fair, it's about what's the best way to get to the truth. Seriously, what is wrong with it other than nobody likes the ABA? Are you really concerned that an ineffective defense counsel would give "too much" discovery? Really? I think JB is right that, more likely, defense counsels would ignore it as best they can. But so what?

The rule is fine, in theory, but what would be the remedy for a violation? If you tell the defense they can't put on their undisclosed evidence, then don't you get reversed for ineffective assistance? If you let them put it on anyway, then what incentive do they have to follow the rule?

Perhaps the best compromise would be to allow the State to comment on the defendant's failure to disclose the evidence before trial, as impeachment....

Kim, if I end up having to suffer through depositions because of you I'll tell everyone the truth about how you broke your leg.

I think I've heard that story. Or maybe its the one about a different injury. Both interesting.

On second thought, that bilateral discovery stuff is waaaay overrated. . .

Yeah, that Kim, lots of good stories about her. Maybe this thread could just disappear if I mention the magic word:

toothbrush.

Hmmm, guess I'm really not the all powerful force of evil they make me out to be.

Oh, I dont' know, better ask your minions about that.

Can't talk now, I have a toothbrush stuck in my, uh, jaw. <brrr...shiver>

JohnR, how do you remember this stuff?

You guys have to give me a break. I'm just trying to up my posting stats.

I remember this stuff because I can't remember names and faces.

It was funny to observe the reaction this week of a well known and likeable Austin defense attorney when, after saying that he thought the Legislature might next look at legislating open file policies for DA's offices, I suggested it would be good to include reciprocal discovery in that same bill.

Priceless.

That's what I'm talking 'bout.

IMHO, it's also a fair reply to proposed legislation that would make Brady violations criminal.

[This message was edited by KSchaefer on 07-25-08 at .]

What's up with the toothbrush story? Do we get to hear the rest of that at the annual?