Our office is currently prosecuting a series of cases where Confidential Informants and Undercover Officers did controlled purchases of narcotics from members of the Mexican Mafia. The buys were recorded and the prosecution is for the actual delivery to these informants/undercover officers. How are other offices dealing with these buy recordings under Michael Morton? Are you releasing them to defense counsel? Are we required to under Michael Morton?

We have a serious concern for the safety of these individuals and are trying to figure out how to best protect them and still comply with Michael Morton.

We have successfully used 508 to protect Informants and Undercover Officers where a search warrant is done; however, this is a completely different scenario.

The Morton Act doesn't defeat the privileges in 508 - privileged (but not confidential) information is excepted from discovery under 39.14(a).

Because these witnesses must testify in these cases wouldn't 508(c)(2) apply because the privilege does not apply if there is a reasonably probability the informant can give testimony necessary to a fair determination of guilt/innocence? And in that case would the video have to be turned over? Or would it be sufficient to allow defense counsel to view the videos in our office?

Michael Morton asside...you have to disclose the recordings/videos of the deliveries.

Safety of the individuals, unfortunately, is always an issue in these types of cases. If safety is unusually concerning, i think the only thing you can do is dismiss your case.

I second Abigail's aside. The MMA hasn't changed the discoverable nature of the recordings. We had to hand those over under the old law, too, and the same dilemma attached--is this particular case worth burning a CI and possibly placing him/her in danger?

That said, there's nothing in the MMA that prevents you from asking the defense lawyer if he would be initially satisfied with watching the video in your office first in an effort to avoid proceedings under 508.

Just wanted to say thank you to everyone for the replies and input.

We had a problem with lawyers and/or defendants copying the buy videos & circulating them among their friends to play "name that snitch", so now we don't give them a copy. They have to watch it in our investigator's office or at the jail.

If anyone figures out how to try a controlled buy case without identifying the CI beforehand, let me know. I mean the CI is the only State's witness who can prove up the video, testify as to the buy itself, etc. Something about the confrontation clause too. What am I missing here?

We were trying to figure out if Michael Morton required we give a copy to defense counsel or if we could require they come to our office and watch them.

We are dealing with the same problem of identification of confidential informants. I know we have to identify them and put them on the stand during trial at which point everyone will know who they are. However, I was trying to avoid the defendant's making copies of the videos and circulating them like you have experienced.

I don't see how you have a choice if they want to make a copy of the recordings. You have to permit both the inspection and the duplication of anything that contains evidence. 39.14 specifically prohibits defense attorneys or anyone on the defense team from sharing discovery with third parties... although I have no idea what you should do if you find out that's being violated.

I guess you can ask the judge to order them to comply with 39.14(e) before giving them copies and if you find out they didn't the judge can hold them in contempt? Just spitballing.

The video of the offense is not considered a recorded statement of the defendant or a witness. But, the defendant will certainly argue that it is a tangible thing that constitutes or contains evidence material to a matter involved in the action. It is, however, unlikely to be exculpatory in nature and thus is not "Brady material." And unless it will be used to satisfy the element of the offense stated in art. 38.141 (case involves someone "who is not a licensed peace officer or a special investigator but who is acting covertly on behalf of a law enforcement agency or under the color of law enforcement") it may not be material because it is not "in itself indispensable to the State's case." In re Hawk, No. 05-16-00462-CR (Tex. App.-Dallas 5/31/16). I understand that you would like to use it to bolster the officer's testimony or encourage a guilty plea. Plus, the requirement that the State identify its witnesses and turn over the offense report before trial may make the whole issue moot.

This message has been edited. Last edited by: Martin Peterson,

I'm never liked the word "material" in 39.14(a) because most of the jurisprudence relates to "Brady materiality" which is obviously a backwards-looking appellate standard. It doesn't totally work for pretrial discovery unless the prosecution already knows the defense strategy. The Brady materiality analysis contains an admissibility requirement that shouldn't be part of the Michael Morton Act considering that (1) some of the evidence that Ken Anderson allegedly withheld from Morton was clearly inadmissible and (2) the State Bar says a prosecutor's duty under Texas Disciplinary Rules of Professional Conduct Rule 3.09(d) is broader than "Brady materiality." See WILLIAM ALLEN SCHULTZ v. COMMISSION FOR LAWYER DISCIPLINE (SBOT Case No. D0121247202)

So how can anyone know, BEFORE TRIAL, that any requested evidence could not be admissible or that it might alter the outcome? These are things we can speculate about after trial. If "discovery materiality" is broader than "appellate materiality" then what is the limit?

TRE Rule 401 provides the definition of relevant evidence. If relevant evidence is both material and probative then does 401(a) define "material" and 401(b) define "probative." Do we just have to wait and see what the CCA does?