SB 560 mandates that the state provide defense attys., at least 60 days before trial, with the statements of all of the witnesses she expects to call at trial.

In theory, the State can demand the same of the defense, and they have a 20 day time limit. But as a pratical matter, you can expect the courts to blow off any discovery violations of the def., while holding the State to a 2 mo. deadline. Even if the courts did hold the Def. to the deadline (do you really expect the courts to keep out vital defense evidence simply because the Defendant's atty. failed to inform the State of the evidence within 20 days of trial?) the fact is most defendants don't have any witnesses of any consequence, so the State gains nothing by this provision.

What this bill will do is potentially prevent the state from adding new witnesses discovered within the 60 days prior to trial. It will create booby traps that will make criminal trials more like civil trials, in which each side plays "gotcha" on the discovery rules rather than being focused on the facts. It will make criminal trials even less fair and accorate because it will deprive juries and judges of important information, and it will make criminal prosecution a grind instead of a joy.

And what does it gain society? More crooks will go free, but it will not provide any additional protection for the truly innocent person who is wrongly accused.

The fact is, it is in the State's interest, in the great majority of cases, to show the defense the evidence the State has available. This is so, because it is the defense atty. who "sells" the plea bargain to the defendant, and the more he knows about the State's evidence, the more he can rebut his client's lies and wishful thinking.

But there are defense attys. who will use this info to fashion bogus "evidence" to use at trial, and prosecutors need to have the authority to close their files to such people.

Believe me, this is a terrible, terrible bill. We all need to contact our senators and reps and the governor's office about this one.

I agree with Breen. While there have been a very few cases in my 15 year career where I would've liked to have had some pre-trial discovery from the defense as far as witness statements go, those matters usually took care of themselves during cross examination. I do believe, as someone famous once said, that Cross Examination is the greatest search engine for the truth.

I think the legislature gets in these situations where they fear that since they can't solve or adequately address some problems (health care crisis/insurance, prison overcrowding, low teacher pay, etc.) that they feel the need to venture into areas better left alone so that it looks like they are actually accomplishing something.

And David, don't be too jihad'ed!

Mr. Breen knows of what he speaks. We were prosecutors in the Peoples Republic of New Mexico, where "mutual discovery" is the law of the land. The rules were enforced against the State, but often not against the defendant.

so, do I understand this to mean that even if the Def. provided you with a witness list w/in 20 days, you would not be able to call rebuttal witnesses since you wouldn't know about them 60 days prior or does this not apply to rebuttal?

The bill does say "or as soon as practicle" or words to that effect. So if you discover a new witness within the 60 day period, you could try to use him. The def., of course, could always object about a lack of notice, and you'd have to spend court time hashing out how much notice the Def. got, and how practical it was to get notice to the def. earlier. This is a hearing we currently do not have to waste time on. And of course, some trial judges are so worried about being reversed, they'll keep out the new witnesses "out of an abundance of caution."

As for the claims, "well, at least we're getting mutual discovery," don't kid yourself.

How many times does the def. have a "statement" from a witness prior to trial? If the statement was given to the def. atty., it may not be discoverable. The fact is, you could prosecute for 50 years and never get a defense witness statement.

As anyone who has watched enough criminal trials knows, the vast majority of defense witnesses fall into one of 2 catagories: most are totally irrelevant to the issues at hand, while the rest usually do far more damage to the def. than they help.

If a defendant really has a witness that casts doubt on his guilt, most def. attys are eager to let the prosecutor know what he has to say, so that the prosecutor will dismiss the case before trial.

Finally, if a def. atty. failed to give the State notice, do you really expect courts to keep the defendant from calling these witnesses? How fair would that be? It won't happen. We gain nothing but trouble from this bill.

The author of the bill has given no reason for this bill, other than the fact that there are different discovery policies within DA's Offices. We therefore need the micro-management of the legis. to make everybody operate the same.

The question is left unanswered: How does this bill improve criminal trials in Texas? It doesn't. Instead, it creates a major booby-trap for prosecutors, which will result in important testimony being kept from the fact finder. How does that advance the cause of justice? Just to comply with the order will create major headaches for prosecutors, and will cause lots of valuable court time to be spent arguing over whether or not the D got notice of the state's witnesses, and, if its within 60 days of trial, whether the notice he recieved was "reasonable."

In the vast (and I mean vast) majority of cases, the def. knows who the State will call, and what they are likely to testify about. This is a very, very dangerous bill, and we need to make a major effort to kill it. It is bad news. If the legislature really wants to improve criminal trials, they should work to remove notice restrictions, as well as improve the jury pool by restricting jurors to those who are registered to vote. In fact, any legislator who is sincerely interested in improving the criminal justice system, would do well to first consult with some of his constituants' attys.--you know, the one's who represent the people of Texas in the criminal courts.

[This message was edited by Terry Breen on 04-13-05 at .]

We believe the bill reported from the committee is no longer in play. Call TDCAA and ask for a faxed copy of the new version of SB 560 if you want to see it.

California's got reciprocal discovery.

The good:

1. Defense and People have witnesses and evidence, and know what's coming, except for the Defendant's lies. I think this is effective for justice; surprises are often unfair from both sides.

2. You can interview the defense witnesses before cross-examination.

3. You can forecast the defense better, because of number 2.

4. California's rule is 30 days before trial. That's better than 60. Thirty's enough.

The middle:

1. California has long required turning over the police reports at a very early stage; I realize some jurisdictions don't have that.

The bad:

1. As a general rule, the remedy for late prosecution disclosure is that the judge places nasty evidence sanctions on you.

2. As a general rule, late defense discovery (even day of trial) is allowed. The prosecution's only remedy is to ask for a continuance, which can be a pain for your civilian witnesses. Often, the prosecution will just suck it up and let the defense roll with what they have rather than dragging in the poor civilian witness again.

The bad parts are, indeed, bad. But all in all, I think reciprocal discovery is quite workable. Sure, the defense cheats. What's new? But this system makes it harder for guilty criminals to cry about the mean old system grinding them up. OK, not harder to cry, but fewer listen.

--JRM, who recognizes that having listeners for criminals' whining is more a problem in California than Texas.

This bill does seem to open up a Pandora's box!!

I am currently in the middle of a trial where a cop was on duty at night, speeding at least 20 miles an hour over, and did not have on any lighting whatsoever (he was tailing his buddy who was trying to find a car that may have been doing donuts) when he killed an occupant in a vehicle that turned in front of him (she could not see him coming).

The investigating agency has covered up the facts or distorted them in the cops favor. They only gave us information when it was too late for us to give notice for trial. We also found witnesses within days of trial. This was not our fault. I am not speaking for my office, but it seems that this bill would make it more difficult to get in some vital evidence??

By the way, anybody handled a case like this before and have any good suggestions??

I was in Austin last week when the discovery bill was being discussed...Shannon, Rob, John, and Troy were on top of things PRONTO. It was awesome to see how they gathered information from other states' reciprocal discovery rules and within moments had a counter-proposal that included, among other things, requiring the defense to provide alibi information.

These guys are REAL troopers, working long hours to make sure prosecutors are protected against laws that further restrict our ability to prosecute.

If you haven't been to Austin to see how things are going, you should spend a day visiting legislators' offices and attending committee meetings with one of these guys.

See the version of the bill passed by the senate at this link: SB 560 engrossed version

By making discovery automatic and including offense reports and witness statements, we will give the defense many new ways to seek reversal of cases for technical violations. As a witness or victim in a case, I would not be happy that my personal information is being copied and handed out. And that certainly makes yet another Rule of Evidence pointless.

A change in discovery law to this magnitude will lead to enormous litigation. And what, exactly, would the State get for all this? Nothing but reversals. If you believe you will obtain more information from the defense, you are fooling yourself.

[This message was edited by John Bradley on 04-20-05 at .]

Wow, I can see how our legislature intended to 'correct' the misperceptions of Texas Justice by saying everyone disclose everything, timely, and let the chips fall where they may. Here is how I read it. You now must let me photocopy, basically, your entire file (as most files are just police reports, expert reports and photos). I must now tell you how I plan to defend my client by giving you things that I probably would not have given you.

One of the best DAs offices I worked with, I won't say who, let us have photocopies of the entire file (save and except work product) for a fee. No one was ever able to successfully argue to our Judges 'unfair surprise', and they had a great conviction rate. So, I really don't ever buy the argument as to why we can't photocopy the State's relevant file.

The problems are going to run on both sides, each arguing and litigating. I have always believed that I can present any defense, and I do not have to tell the prosecutor (save and except insanity) what my defense is, although I usually give it to them in a nutshell. By forcing me to disclose any or all defenses early, I think you impinge on my client's RIGHT TO REMAIN SILENT. I do not have to present a defense, and lots of times may decide not to. However, what happens if a witness for the State gives me ammunition at trial (because it is true that the witness will eventually say more than what is in the witness statement, and more than what he elects to say to the defense attorney), and I decide at that moment, based on the witness testimony to hammer out a defense. Am I precluded from calling any witnesses then because I didn't think of it earlier, or didn't have the ammunition until trial? I think the defendant may have a constitutional argument here.

However, with that said, from the same legislature that tells us we are being too hard on criminals and too soft on cheerleaders, are you REALLY hoping for something realistic? Next time, get out your pencils and go to the polls.

"We�ve heard several positive comments and a few objections, but the bill is now headed over to the House and it could be greased to go right through, as far as we know. Tell us what you think." Quote from the 4-23 TDCAA weekly leg activity update.
So, let's hear some more comments. I think I understand the objections well enough but I don't see a bunch of positive comments ahead of me in this thread. I'd like to hear more if they're available. Also, it sounds like the train is coming down the tracks pretty fast. Is it too late to do anything? As for my 2 cents worth, I think the "mutual" reciprocity will be a one-way street as a practical matter so it won't help the State much. And there are a lot of traps which are detrimental to the State. But it sounds like something is going to happen and this bill could be worse I suppose. Let's hear your thoughts, folks. I'm scared of the bill but what should or can we do with it in its present posture if we want to derail it?

I've had complete open file since the day I started prosecuting. At one time, I made a copy of the file and sent it to the defense. I no longer have time to do that but I still let them copy the whole file. I think this practice is probably the rule in Texas, not the exception. Frankly I just don't see the problem here. Having said that, if you don't like something that's happening at the legislature the only way to stop it is to go to Austin and organize. This is one of those areas where TDCAA has a hard time representing prosecutors as a whole because we don't all agree on how this should come out.

I have a practical question to ask of those of you who are allowing copies of their files to be made: Are you charging for copies? We have 3 worn out copy machines in our office which are constantly jamming or breaking down. Do y'all have a dedicated copier for defense attorneys? We have an open file policy in our office. I've let defense attorneys bring their own scanners or portable copiers in the past, but I just don't like the idea of wearing out our copiers or tying up my secretary's time copying stuff for the defense. If the clerk's office can charge for copies of their records why can't we? I know most defense attorneys are court appointed but the way I see it, I'd rather the expenses be paid out of the defense attorney's fund rather than our budget.

The authority to charge for copies comes not from the Code of Criminal Procedure, but from the Local Government Code which sets out the permissible charges for copies (as well as the regulations of the Building and Procurement Commission that delinate the authorized charges for copies under the Public Information Act). We now have a dedicated copier for defense attorneys, for which they must purchase a venda-card. They pay 10 cents per page for copies. The DA does the same here. So far, it seems to work fairly well and current rates indicate that the system will pay for itself (thus, the county won't be financing defense discovery ... at least on the front end. They'll include the copy prices in their expense claims, anyway.)

You might have to make them available, but as a witness in our great State, they do not have to talk to them. In fact, the only words out of a child's mouth should be "I don't want to talk to you" and this could be done closed circuit TV. Case closed.

On the subject of copy fees, I have paid 10 cents a page, and if the fee is over 20.00, I have recaptured the cost in my Attorney Fee Claim Form for appointed attorneys. If it is under $20.00, it's just the cost of doing business to me.

SB 560 is a terrible bill and needs to be killed. I agree with the comments that it creates boobie traps for the state and will not be enforced against the defense. We need to mobilize the defense bar against this terrible bill. I was just discussing it in my office with a defense attorney, and he made the comment, "I often don't know what my defense is or who my witnesses will be until I see what the State puts on in their case." I don't see the defense jumping up and down saying, "Please let the prosecutor come over and copy my file!"

Look, I don't believe that this bill is correct in its current form. I will say it again, the Defendant has a right to remain silent, and not put on a case at all. That right remains until after the State puts on their case, then the Defense must decide it's course. In theory, that sounds good, but it may not be practical. It is true that as a Defense attorney, you may not decide your true defense until after, or during the State's presentation. I just think that the bill unfairly infringes on the Defendant's ultimate right to remain silent, and to present no defense at all, and if he does it is up to him and no one else. To force me to disclose who I would call infringes on my clients ultimate right to remain silent and not answer the charges.

Don't be surprised if you get a family tree as a witness list. After all, we may get to punishment, I'd call as many of the family members as I could.

Lee, I have the same concern about the expense of making copies. I have brought this to the attention of our county judge so he can contact our rep. and senator. This is not an expense that my office will, or is able, to bear. Our defense bar is not large enough to buy and maintain a copier, nor do I have a place for one. If we charge by the copy (which I do not like b/c my staff will still use their time to make the copies) that expense will just be charged back to the county since 90% of our cases are court appointed.