The lead officer (yes, that's right!, I said officer)in the case that we're just about to try entered into a pretrial diversion about five years ago that was satisfactorily completed. He says he was never even arrested on the charge, just entered into the agreement at the county attorney's office. Do we need to turn this information over to the defense counsel as Brady material?

The safest approach is to disclose such an issue and then file a motion in limine, seeking to prevent the defense from using it or mentioning it until there is a hearing before the court on its admissibility.

On the surface, it does not appear the diversion would be admissible for impeachment. But, defense attorneys can be very creative in arguing the relevance of such matters. You should allow the defense an opportunity to pursue and present their arguments.

While you might believe such arguments are wrong, and have great reason for supporting your arguments, by allowing the trial court to make that decision, you avoid any subsequent allegations of prosecutor misconduct.

In general, evidence which is not admissible is not Brady material even though it might logically impeach the credibility of a witness. Reveal this fact about the officer in the current case and you can expect it to re-surface often. Motions in limine are great tools, but in my experience they rarely work for the State (and you will still likely be briefing the issue on appeal- as a denial of the right to cross-examine). Then again, a breach of Tex.Discip.R.Prof.Conduct 3.09(d) can be a serious business, so maybe you do have to lean the other way. Maybe try an ex parte disclosure to the court?

Just a note to tell you that you probably have already disclosed. I posted something on this forum recently because I was curious about a legal issue and within the next 24 hours got a call and an email from both attorneys trying the case asking me about it. I think the defense is watching.

I agree with Tim, I think chances are good that once you air a case specific question/issue on this forum, the chances are high that your secret is no longer.

I also strongly agree with John, err on the side of caution, establish your reputation as a square shooter then your honesty and integrity will never be an issue with the defense bar or any court. It's the fair thing to do. And it's the right thing to do.

Ask yourself, would you, if you were the defendant, want to know what you know? Even if you wouldn't, our duty is to see that justice is done.

That's why we're not allowed to say in voir dire that we as prosecutors have a different constitutional duty than a defense attorney. It is our job to see that justice is done. (Flute playing ends)