After attending the excellent one day session put on by TDCAA in Houston addressing among other things "Brady" concerns, I need some ideas about how to document what has or has not been provided to defense counsel. We have an open file policy and we keep track via a sign out sheet who views our files. But on a number of occasions I have had defense lawyers claim during trial that they have not seen documents or read things in offense reports that were clearly a part of our files. We are in a sort of "you can bring a horse to water but you can't make the drink" situation or admit they have seen certain things. How do others document that all documents have been provided to defense counsel? I can point to our well known open file policy but after listening to the Brady presentation, I think I need to document things a little more specifically. Any ideas on how to approach this without having to sit down with defense counsel and get him/her to sign off individually for each document provided.

By the way...Clay Abbott did what I though was impossible...he actually made an ethics portion enjoyable. Move over Ted Poe...we may have a new final speaker for baby prosecutors school

At my last jury trial, after we selected our jury and before court recessed for the afternoon, I simply recited into the record that the defense attorney had signed our discovery agreement and had been given access to our file. I then recited into the record what my file contained and identified each agency report (and supplement) that I had in the file along with each witness statement (written or recorded). I then had the defense attorney agree on the record that he had been allowed access to--and made copies of--those items.

The best suggestion that I am aware of is to copy all documents to a disc and provide that (perhaps going so far as to make a duplicate disc to eliminate any claim about omissions). This is time-consuming and not inexpensive (because a high speed scanner is nice to have). In the end, swearing matches about the issue seem almost impossible to avoid. Everything is paperless in Tarrant County to begin with and I have not heard any valid complaints about their system.

The interesting thing to me is that I have found our files only rarely contain information pertinent to a defense or mitigation, yet we must apparently assume any file has that potential. I guess we can be thankful most cases are resolved by guilty plea and that that seems to make it harder to raise a Brady claim. One reason I became a prosecutor was to avoid the discovery and other pretrial battles inherent in civil practice. I was naive.

For some years, defense lawyers have claimed that an open file policy will prevent discovery disputes.

For a recent discussion by a judge, click here.

But, as we know, we still have to document the discovery because not all defense lawyers are diligent about exercising their responsibility to go look at everything.

And, we still have a duty to make sure that we have received everything. That duty is perhaps even more difficult to document and complete, because it depends on third-party entities to understand and comply with Brady.

Beyond all of this, there will always be information that has not been reduced to writing or a recording. Such verbalized Brady must somehow be documented and passed on.

It is difficult to come up with a perfect policy that will accomplish all of this in every case.

In my former life, we had a stamp that said "provided to defense on _________". It was real tiny, and very unobtrusive, so every document could be stamped. You can get the same stamp with a date portion, but I just used a date stamper. Took about 3 minutes to stamp a whole file. I would have counsel sign an acknowledgement of full discovery, as well. I only had to use it with certain defense counsel, who would often make spurious claims. On verbal Brady material, I would email or otherwise send a confirmatory memorandum to opposing counsel that the information had been provided.

In my current life, I don't get to try many cases (boo hoo), but have noticed that the Webb County defense bar is infamous for saying they never got discovery. The guys at the DA's Office have begun memorializing (either in writing or on the record) that all discovery has been provided, or, if an attorney had not bothered to show up, getting that on the record, too. They often complain about Brady material, and argue to the judges that we didn't provide evidence that they had gained in their "investigation", usually meaning the BS story their client had provided. In such cases, we extend an opportunity for their client to sit down and tell us everything they know that will exonerate them, or mitigate the punishment. No one ever takes us up on that. Wonder why?

Our office has begun scanning the offense reports, statements and other documents we typically provide into a single PDF file. The file is then emailed to the defense attorney along with an initial plea recommendation. At the end of the day-you can go into your Microsoft Outlook folder under the "Sent" tab and pull up any discovery packet to see exactly what documents are provided.

Another neat tool I use is "PDFill PDF Tools". It allows you to watermark and/or put page (Bates Stamp) numbers on each scanned page of a document you provide. The program is frequently given away for free--and even at full price is only $20 or so.

The Parker County system is basically what I suggested (but saves time and money on buying and burning CDs). Possible downside is you have to have a valid email address for defense counsel and they may still claim the email never arrived. Maybe the date of delivery is better documented than using a disc though.

Of course, none of this was even thought of when Brady was written. It is still my belief that an open-file dispels the need for so much documentation and formal discovery worries, but merely making the trough available for drinking certainly does not guarantee timely disclosure or dishonest claims of non-disclosure. An open-file policy arguably opens up claims of ineffective assistance, for habeas use. Obviously this is all the end result of growing leniency by the courts in deciding what is "Brady material" and willingness to believe defense claims (i.e., disbelieve the prosecutor's version).

It is a good practice to make a verbal record in court at a pretrial hearing or during a guilty plea that the defense lawyer received open file discovery and received access to all the records. Ask the defense lawyer to confirm on the record. If he won't, then don't proceed until he can or will.

Recently had a defendant, 10 years after trial, claim that his lawyer didn't convey to him a pretrial plea offer. Couldn't find any record in our files but did find a transcript of a pre-trial hearing during which defendant, on the record, refused all offers and demanded a trial.

As neither the prosecutor nor the defense lawyer could remember what happened, it was a good thing to have the record and admission in court.