So, our breath test supervisor failed to submit documentation on 4 discovery requests that were agreed to, and summarily ordered by the Court. D counsel is arguing that the expert testimony be excluded completely based on her failure to comply with the 4 requests.

Is he right? Anyone dealt with this before? In trial as we speak.

Are discovery issues required to be brought up prior to trial? Or, can the D atty sit on the unanswered discovery requests until after the jury is seated and then move to exclude testimony?

Unless there is a good reason the State did not comply with the discovery order, and unless you can come to an agreement about a continuance long enough for them to inspect the evidence and prepare a defense, the weight of authority indicates the judge should exclude the evidence.

Thanks for the info. I guess my only real question is whether or not D atty is required to bring up the lack of discovery compliance prior to trial.

Sounds like that answer is no.

Thanks again.

Jon,

Let me clarify - I understand that the non-produced documents would be excluded based on lack of discovery, but is there any authority that the expert's personal testimony would be excluded as well?

D atty's argument is essentially this: Since Tech Supervisor failed to produce the requested discovery items prior to trial, the Technical Supervisor herself should be excluded from testifying during the trial. I.E. any and all breath test evidence should be excluded based on the lack of discovery document production.

If the answer is the same, then it's the same. I don't think I explained the situation properly earlier though. Oops.

Take a look at this case and see if you think the info points you in the right direction: Oprean v. State, 201 S.W.3d 724, (Tex. Crim. App. 2006). It might help you figure out what you should argue to try and get the 4 reports in (the "willfulness" issue), and it should also help you argue that since this is all about the trial court's discretion, it wouldn't be reasonable to exclude the entire testimony of the expert. Hope that helps!

I am going to say there are arguments available to oppose the "weight of authority" Jon referred to. See pages 6-12 of this brief, which addressed a similar argument by the defense attorney that "you didn't give me this, so you don't get to use that." Violation of Discovery Order

Thanks alot, yall.

It's all moot now, but this is informative with regard to future issues.