What do you all think of a discovery order that requires the State to disclose a defendant's entire criminal history - including all arrests, convictions, etc., however recent or irrelevant? One of our defense attorneys is proposing just such an order. The judge seems to be considering it. I believe that Gov't Code Sec. 411.085 governs the release of such information, AND that the defense has an adequate tool under Rules of Evidence Rule 609, 404, etc. However the defense argument is that the court can order the release of the criminal history in spite of the language of the statute(s). Has this come up before?

Why not just share it with him?

Nearly every court I've practiced in has required me to show a D's complete criminal history to his attorney. It's illegal to make a copy but I've never had a judge refuse a defense request for me to run it for him to read.

Further, about half the judges have ordered me to run cch's on all witnesses, and allow defense attorneys to be able to view that as well. The other half have only required me to disclose any moral turp or felony convictions.

I've always had to make CCHs on the defendant and all witnesses, including officers, available to the defense.

Lisa L. Peterson
Nolan County Attorney

Our judges here all got some letter from the FBI or something warning about the confidentiality of CCH's and the possible criminal penalties for unauthorized viewing and release and so are hesitant to order them copied or viewed.

The compromise they usually strike is that we are usually required to do for witnesses: 1) view the CCH's that we have currently in our possession and provide notice of any impeachment material and 2) ask each witness if they have any criminal history if we don't have a CCH and if the answer is yes, then we are supposed to disclose impeachment material.

With defendants, we usually tell them all that we know....just helps the plea offer negotiations that much more. I do know that actually showing the CCHs without a court order to anyone that has not gone through that class is supposed to be a misdemeanor offense--but I usually write the important items on the case folder so that I remember they are there, anyway.

Ordering a witness's CCH run and disclosed in its entirety to a defense attorney seems way out of the realm of reasonable discovery. There are plenty of items of information on there that have no business being outside of the prosecutor's office.

Our judge requires that we disclose full histories of defendant and witnesses excluding law enforcement.

In this instance I'm a little mystified why you wouldn't be jumping up and down at the chance to demonstrate just what a scumbag the defendant might or might not be. Allegedly...

I agree with JB, GG, and Brody. Is this something really worth fighting?

I always told the attorney everything I knew about their client's criminal history. Odds are that their clients "forget" about certain criminal events. It really doesn't matter for theirs. For witnesses, upon request of the defendant (and because the judge would order it anyway) I would tender what could be used as impeachment evidence (i.e., convictions for crimes of moral turpitude and felonies).

quote:

---

Ordering a witness's CCH run and disclosed in its entirety to a defense attorney seems way out of the realm of reasonable discovery. There are plenty of items of information on there that have no business being outside of the prosecutor's office.

---

But when ordered to do so by a judge, what are the choices?

Also, if your county has a standing discovery order, that counts as a court order.

I look at it this way. If I were charged with a crime, I'd want to know these things about my accusers. If your witness has some impeachable events on their cch, then file a Motion in Limine to at least get the chance to argue it outside the presence.

Yep, if your judge orders it, it gets difficult, and then the next question would be how much of a battle is the issue worth.

We don't routinely have CCHs on witnesses, though. So for the judge to order it, he would have to order us to obtain a document we don't already have, and I've usually gotten the judges to agree that I'm not required to go find impeachment evidence (or any other type of evidence) only to disclose what I have if applicable.

If you've already got it, and judge orders it or asks you to go get it, I would take off all the birth dates, SSN, addresses, etc. that could be used for someone to steal identity just in case that attorney's office is not up to date on their shredding when cases are done. I've seen some friends with identity theft issues and it is a pain to clear up.

Just to be clear, it is the mandated release of the actual documents (or copies) that I oppose.

We do of course routinely tell defense attorneys what their clients' backgrounds are if it's relevant or will help our negotiation position. So in a sense they would seem to have little to gain by forcing us to make copies of the actual CCH... and I don't want to be in the position of releasing something I'm not supposed to be releasing.