What is your office policy on discovery? In particular, what types of information do you provide through an informal request.
Everything in the file. No copying, they can view any videotapes we have.
We let defense atty's copy everything that isnt in the work product folder. Everything but notes and victim info and ch runs. They have a copy machine on one of our floors and members of the tarrant county criminal bar can check out the file, we hold their bar card, and they take the file , minus wp and copy it. We've had this policy for a long time now with few problems.
By the way Congrats John! Hope you'll still have time to train.
I have allowed the defense attorneys to put a copy machine in my office. They supply the paper and materials, as well as maintenance. They can copy anything in the file except work product and victim impact statement (which are removed prior to being provided the file). I do not permit copying of any juvenile files, but defense attorneys are free to see the entire file. I have had no problems.
Does anyone put any restrictions on witness and victim information (phone numbers and addresses, for example).
Does anyone provide more restrictive discovery for cases involving child abuse (in which the defendant is more likely to fabricate a story to fit the outcry)?
In answer to your first question: Our office has a "closed file" policy, unless the defense attorney waives all discovery, including pretrial suppression hearings (unless we agree there is a need for such a hearing)and Rule 404(b) notice. If they waive all that, we give them a Xerox copy of the offense report, statements, def's rap sheet, etc.
We exclude from discovery our own office notes, unless we feel it may be helpful. I also tell defense attys. that I don't guarrantee that we've copied everything in the file, and they are free to look in our file to double-check. If the cops give us supplemental reports or witness statements, we'll make those available as well, but we tell the def. attys it's their job to ask us for it. If we remember to, tho, we'll send them the new stuff as it comes in.
We inform them of the existance of any video tapes, and offer to make them a copy. We ask as a favor they give us a blank video tape or a check for $6.00 (none have stiffed us).
All of our regular local attorneys are happy with this program. Once in a while we'll have an outside attorney show up, and he'll be leery of accepting our deal. I always suggest he talk to one of the local defense attorneys, who usually convinces him we're not pulling any punches.
We ask the police agencies to supply us with extra copies of their reports, so we don't have that much copying to do.
I can't recall when we last had a discovery hearing. The policy works extremely well.
Terry, your policy seems to be enlightened considering I view the purpose of open-file discovery to be to encourage a plea bargain rather than a trial and perjury and to avoid the hassles of discovery deadlines, etc. If your judge is not called upon even to enter a standard discovery order, I imagine he or she likes it too. How do you handle witness lists? I suppose they are just part of your file. Unfortunately our judge is very strict about those (even though our intentions are always good and the defendant could probably not show any surprise). Aren't there also some cases saying an attorney is ineffective if he fails to file a discovery motion? Our defense attorenys certainly seem to think so.
We have a strict closed file policy.
The defense attorney does not get a copy of anything in the file until a discovery order is signed. We have three district courts and three county courts at law that handle misdemeanors. All except one county court have agreed discovery orders. These are most of the time signed by the prosecutor and the defense attorney without problem. The one county court that does not have an agreed discovery order requires a hearing on the matter. (Normally never requested)
Of course all Brady material is given before trial.
Without exception, offense reports are never handed to the defense attorney before trial. Video and audio tapes are copied for free if the defense attorney brings a blank tape.
404(b) is not given unless requested.
This does not seem to slow pleas in our county. Our misdemeanor numbers have stayed very low in comparison to other counties our size.
So far we have had no appeals claiming that an atty. who waived Discovery and got our file was ineffective. However, I don't think it would stand up, if there was such an appeal. This is a tactical trade-off that the appellant courts won't second guess. The defense is not entitled to the offense report until the officer testifys at trial, and this is usually the most important thing the defense atty wants to see, so he got something very valuable in return for waiving discovery.
As for witness lists, we don't agree that they are entitled to that. We want to keep our options open at trial. But I frequently inform defense attys who I expect to call.
I don't like a strict closed file policy for two reasons. First, most cases are resolved by pleas, and the guy who most often makes the plea happen is the defense atty. The more info he has to contradict the nonsense he hears from his client, the better able he is to work a plea. Secondly, when you go to trial with a closed file and court-ordered discovery, your ability to change course in trial is somewhat restricted. Furthermore, there is the potential for unexpected Brady problems. For example, it may not occure to you to report an obviously false statement to defense counsel, but on appeal it can be made to look like you hid potentially valuable evidence. If all the false leads, etc. are in the offense report, the defense has been forewarned, and there is no Brady problem.
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