I can't make this up, folks. This is happening today. Murder trial in progress. Parking lot shooting between to "clubs". The factions are kept in separage hallways. First morning of trial some of one "club" go down to vending machines in basement where one person burglarizes the machine. Others see this occur. Report made to SO and DA's office. Not much credibility given until one person shows employee of DA's office where the culprit hid the cash taken from the machine, a good size roll of ones. Courthouse security videos can only show that certain people traveled a route that could take them to the vending machines, or elsewhere. No one has been arrested, but the matter is under active investigation. WHAT DUTY, IF ANY, DOES THE STATE HAVE TO DISCLOSE THIS TO THE DEFENSE? Can't really get my mind around a boolean search string to pull this up in WestLaw. Has anyone had this happen before? How did you handle it? I'm posting on appellate board too.

OK, I'm not a lawyer but... That is really brazenly bad behavior to occur inside the courthouse!

So the witnesses are thieves or the witnesses club-mates are thieves?

I think this goes to the credibility of the witness because anyone willing to take such an action in the courthouse clearly has no respect for the courts. (ie: not intimidated by perjury)

How the jury feels about the witness, especially if the witness is a victim, could influence both guilt/innocence and the amount of punishment.


If you feel like disclosing the event would hurt your case then, almost by definition, it would help the defendant.

[Edit: fixed spelling]

I presume the people accused belong to the victim's "club"? It is not clear in your description.

If so, if the any of the persons accused of burglarizing the machine are witnesses you will be calling, then of course you have to inform the defense about the active investigation as it impacts on possible bias for the State by the witness for the State, same as you would have in any other witness who was under active investigation by the State. (Though this witness may not know he/she is under investigation and so there would be no question of a bias. But the potential bias is the reason for the need to disclose. Just like a witness who is pending indictment.) Of course, the basis for impeachment is not "you are a terrible person because you just did this" but only, "is it true you are under a pending investigation for a crime in this county right now? Is that impacting your testimony?" (Not general impeachment for being a criminal - see TRE 608 and 609, but rather impeachment for bias - see Maxwell v. State, 48 S.W.3d 196, 198-200 (Tex. Crim. App. 2001), which deals with deferred but the principal is there of pending criminal charges.) I think you should definitely hold a hearing as to the limitation of what can be asked in impeachment and of course, the potentially accused witness needs to be informed of his/her right to remain silent and it would be best to appoint an attorney. The court definitely would have to be informed of this situation and the extent that this can be used by the defense should be narrowly tailored to that which is permitted by law (not just a "you are so bad" impeachment).

But if the person(s) is (are) not a witness(es),
and the only thing the defense could use it for is to say "this club is a bad group of people," I don't see that as admissible (outside of a direct impeachment of a witness as above) and so I don't think it would have to be disclosed under Brady. (Yes, if the defense is, "I shot in self-defense because they are so bad I was scared of them, knowing their reputation" somone could try to make an argument but my reponse would be that the defendant only knew what he knew on the day of the shooting and could not have based his decision to shoot on something that happened months later at the trial. IF any info on the club is admissible, it should only be as to the defendant's knowledge at the time to show his state of mind - not something occuring much later). But obviously I don't know the circumstances of your case. You need to consider what might be legitimately useable by the defense or whether the evidence "might lead to" admissible evidence.

If it belongs to the other side (defendant's club), I don't see that it needs to be disclosed (and again, would be hard to get into evidence, I think, unless it was somehow admissible as impeachment against that one person, but that is harder to see on the other side). That would not be impeaching or mitigating or exculpatory if it is the defendant's own club members.

Of course, the best (and CYA) rule is to just disclose it. One can make fine distinctions about what "must" be disclosed(and we do on appeal when trying to uphold a conviction), but the best practice in real life - when you can still DO something about it - is to give the defense anything that you even QUESTION whether it might be Brady material. Any negative impact on your case will pale in comparison to getting it reversed because you kept the info back.

[Edited to reflect agreement with GG and additional commentary.]

[This message was edited by Cynthia Morales on 08-14-07 at .]

The best policy is to disclose it all, regardless of whether it is the victims group or the suspect group, and then seek a motion in limine to keep it all out of this trial.

You'll probably never know who did what until much later.

I agree w/ GG.

But also, don't tell the witnesses that they're being investigated for the burglary of the coin-operated machines until they're done testifying.
That should rule out any possibility of bias and keep this stuff out of your murder trial.

Reading GG's response, I think my last line should have been "the cya rule is just disclose it." It is by far the safest response. And I second (third, I guess) the motion in limine and the not telling them of the investigation (and so there can be no possible bias as they did not know).

The interesting, er, at least somewhat interesting thing about our profession is the weird issues that develop during trial based upon the behavior, or lack thereof of the witnesses and/or the defendants.

You would think that someone with the sense the good Lord above gave a goose might be smart enough not to burgle a coin-op during the day in the courthouse. Where there are cameras, lots of people, and where you might be hittin' the witness stand.

I often wonder what Ringo Starr would do in a situation like this.

Gotta tell you guys, it's nice to know that there is an army out there to supply when needed! Thanks for all your thoughtful comments. I'm lobbying strong for full disclosure before the witness takes the stand, (which we've put off, I think, until tomorrow), and have prepared a limine motion for my elected so that we can avoid the pitfalls later when the defendant has a LOT of time to think about what all his pals told him after the trial. Hope it works. I'll keep you posted. No film at 11 though, I hope.

While you and I were laboring over this novel set of facts, the elected took it on hisself to make the disclosure and nip the matter in the bud via order of the trial court. A wise move, and not as previously indicated. This I discover at the end of day meeting, making the limine moot. Thanks again for the help.

I know your elected and he is a real nice fella and, I suspect, a pretty dang good prosecutor.

You�re right, he is a helluva prosecutor, and a nice guy. (You can�t tell him I said that). I�ts the hell bent for leather guys though, that need the old geezers to worry about the nicities. When he went back after lunch it was one of those �hell no� deals, but obviously he reflected on the situation and did exactly the right thing. Just didn�t tell me so I could move on to something else. Heat of the battle and all. By the way, I tried to email you this, but our ISP apparently doesn't play well with Yahoo. Time to shut this string down.