In this case, we agreed to discovery and have an open file. Tuesday before trial (6 days before trial), I discovered a videotape, which could be used as rebuttal evidence (to prove the defendant was a liar if he were to testify). Well, he did, and I did, and he got convicted and got the max. Now the defense attorney says I should have disclosed the video when I found out about it. What do you think? Does a defendant have a right to discover rebuttal evidence?

On what grounds does he complain? Is the complaint that you violated a discovery order for statements of the defendant, or that it was exculpatory evidence for which you had an ongoing duty to disclose? Chip Wilkinson's book "Legal Ethics & Texas Criminal Law" has a very good discussion of the Brady issues an dhow to break that down, if that is indeed the complaint..

First, as Rob pointed out, it kind of depends on what is on the video and what your discovery orders were.

Second, if your orders said anything about "anticipated" rebuttal evidence, not just rebuttal witnesses, you might have an issue (even though you can't anticipate necessarily whether the defendant is going to testify, if you know of evidence that you would use on rebuttal if he did testify, then you have anticipated it). OTOH, if your orders said anticipated rebuttal witnesses, if you provided a witness list that included the person you used to prove up your tape, then there should be no problem in my view. But it totally depends on what your discovery agreement was.

Good luck!

p.s. and if there are no formal discovery orders, then shame on the defense attorney for not doing them as a CYA. Even in our open-file county, many defense attorneys file motions for discovery and have them ruled on (usually without a hearing by agreement to most things they're seeking) just to avoid a grievance later if there was something they didn't find out about and they didn't exercise every available means to get that information. It goes to show how not having written orders can create confusion and wayward assumptions.

[This message was edited by Gretchen on 08-28-06 at .]

This was an Indecency with a Child by Contact case. We sometimes have defense attorney's sign a page in our "open file" that they waive discovery in lieu of an open file (as was done in this case). Tuesday before trial the victim's mother mentioned the video in passing. But I did not know of the video in detail until after the defendant testified that he was never around the girl and did not date the mother, when I asked the mother how we could rebut this defensive theory. She said she had a home movie of the defendant and the victim. So we called the mother with the video in rebuttal (the mother did not testify in case in chief). What do you think? Read the story below...

web page

Unless the defense attorney told you in advance that hey, my guy says he never knew these people, I don't think that it's reasonable for you to have anticipated that he would say he never met them before. It was VERY likely you could guess he'd say he never did it to the girl, and that he just digs her mom, but I would not have guessed he'd say he just never knew them. Even if you could guess that (you clairvoyant, you), you have the live witness testimony so I would think that any possible error in introducing the tape would be harmless. Did the attorney object at the time the tape was offered? Did the judge do a balancing test on the record?

We did this all while the jury was on a break. The judge let the mother go home to get the video. The defense attorney objected, generally, then outside the presence of the jury we had a hearing to see if I could prove up a predicate and he objected that the proper predicated was not met. The judge overruled that, of course, but had no reason to perform a balancing test based on that objection. The defense attorney did state on the record that he had told me long before trial that his client said he was never around the girl - so he thinks I should have known; but never mentioned the discovery issue (only after trial).

Check private topics. I responded there.

where is that?