If we have in our possession NCIC copies of witnesses criminal histories, must we provide defense counsel with photocopies if there is potential exculpatory, impeachment, or mitigation information? If not, must we do so after a court order? May we redact DOBs, SS #s, etc.to protect witnesses?
I understand we must give access to the information, but must we provide photocopies? We've been ordered to do so by our county judge, and DPS attorneys are okay with it. Anybody know what FBI and DOJ think? (other than the attached letter.) Thanks.
DOJ_NCIC.pdf (226 Kb, 28 downloads) letter from DOJ to DPS on NCIC dissemination
As an alternative, you might assume that the exclusive means of getting pretrial discovery is found in art. 39.14, which now generally provides for a direct request to the State, compliance by the State with the request, and then proof of compliance being filed with the court. The court normally has no role in the discovery process, as described in the 2014 amendment. There is no longer any general basis for a court to order production of materials, much less "discretion" to expand the scope or means of discovery.
However, the only real protection against such an order is by petition for writ of mandamus. Otherwise, there are the risks that the court will proceed on the theory that it could enter the order, that the order is valid, and that some sanction for a failure to comply will be imposed. You may be left without any remedy for such a sanction, if you choose to completely ignore the order. You can, of course, always ask the court to reconsider its order. I would not let the DPS decide this issue for you.
The privacy concerns of witnesses are clearly being disregarded by such a broad order.
I believe that we are still prohibited from providing photocopies of the NCIC forms, but you should provide a summary of the information (offense, date, disposition, etc) to the defense.
Posts: 1116 | Location: Waxahachie | Registered: December 09, 2004
Of course, a petition for writ of mandamus may not provide any relief either. See In re State, No. 11-15-00025-CV (Tex. App.- Eastland Apr. 2, 2015, orig. proceeding)(order). Ultimately, you just have to guess how far your judge is willing to go. So long as evidence that you need is not excluded at trial as a result of the pretrial discovery issue, you can try to follow the applicable law. But, there is no easy choice to be made (think Hobson), especially if the judge is going to take personal offense or get a stiff neck.
