I need a case(s).

Defense investigator, appointed by the court, has tangible evidence/documents that he received from the victim in the case, prior to trial, at the investigator's request. The State was not made aware of either the evidence/documents or the providing of them until immediately prior to trial.

A subpoena duces tecum is issued to the investigator. Prior to receiving the subpoena, the Investigator turns the evidence over to the defense attorney.

The evidence consists of copies of cancelled checks which victim supplied defense investigator with the intent that the checks proved the crime occurred, refuted a defensive theory of defendant, and that State know about these cancelled checks.

The State through subpoena and reasonable effort has not been able to locate the checks in the bank in question.

First, you might have the defense attorney and his investigator read TPC 37.09. Aren't they concealing evidence with the intent to impair its availability as evidence in an investigation?

Second, defense counsel might look at Rule 3.04 & 4.01(b) of the Rules Of Professional Conduct. See 48 TEXAS PRACTICE § 8.4 ("If the lawyer takes possession of the evidence itself,[FN22] however, or indeed does anything to alter its incriminating character or make it more difficult for police or prosecutorial authorities to locate,[FN23] the evidence is clearly subject to production.").

You could file a motion to compel. See Henderson v. State, 962 S.W.2d 544, 555-58 (Tex. Crim. App. 1997) (lawyer could be compelled to surrender map drawn by client and allegedly showing where kidnap victim might be found, when client had given conflicting accounts as to whether victim was still alive, but it would not have been appropriate for prosecutor to tell jury from whom police had obtained map). Keep in mind that Henderson was a harder case because it was a communication from the client as opposed to physical evidence.

Thanks David. I'm going to Court in the morning on a Motion to Compel. I greatly appreciate your assistance.

If I remember the Henderson case, the State claimed it was possible that the child victim was actually still alive.

So it was therefore also possible it was an ongoing crime... to which the defense attorney was concealing evidence.


I rember that the continous crime was part of the State's argument but I don't recall if it was critical in the judge's decision to compel the map.

Isn't it also as simple as the owner of the property requesting that it be returned to him? The defense counsel has no right to retain custody.

Here's an interesting story on this topic -- search warrant used to search defense attorney's office.

http://www.nbc5i.com/news/16920841/detail.html?rss=dfw&psp=news

The "privilege" to maintain physical evidence of a crime? My memory of the attorney/client privilege is that is protects "communications." A lawyer's office is not sanctuary for physical evidence. That much we know. No doubt a "strike force" of defense attorneys will soon be shouting that rights have been violated.

In the linked article above it mentions that there was a hearing scheduled to determine if the attorney would be compelled to hand over the documents but that a search warrant was executed a few days before the hearing.

Hitting the office before the hearing, hmmm. What would you call Watergate in Bastrop? Maybe "Rivergate"?

Not us, my fine feathered friend. The search of the attorneys office happened elsewhere. I think it was in Big D. That's the mighty Trinity there, Wesley.

Isn't it possible that an argument could be made that it is work product and thus protected?

Quick definition from Wikipedia:

Unlike the attorney-client privilege, which includes only communications between an attorney and his client, work-product includes materials prepared by persons other than the attorney himself: The materials may have been prepared by anybody as long as they were prepared with an eye towards the realistic possibility of impending litigation. Additionally, it includes materials collected for the attorney such as interrogatories, signed statements, other information acquired for the prosecution or defense of a case, "memoranda, briefs, communications . . . other writings prepared by counsel for his own use in prosecuting his client's case . . . mental impressions, conclusions, opinions, or legal theories.

It seems to me that any evidence that might have been uncovered by a defense investigator is work product. Investigators collect all kinds of things and it seems to me that they have no obligation to turn stuff over to the prosecution just because it might be incriminating. There is no reciprocal discovery rule in Texas.

quote:

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Originally posted by R_Smith:
It seems to me that any evidence that might have been uncovered by a defense investigator is work product. Investigators collect all kinds of things and it seems to me that they have no obligation to turn stuff over to the prosecution just because it might be incriminating. There is no reciprocal discovery rule in Texas.

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The defense need not turn over true work product (like the information generally defined above that may be contained in notes or reports). However, physical evidence (such as the murder weapon) is entirely different. Not only is concealing such a "thing" to impair its availability as evidence a felony under Penal Code Sec. 37.09(a)(1) and (d)(1), but it is a violation of Texas Rule of Disciplinary Procedure 3.04(a).

Evidence is not work product. The work product doctrine is intended "to stimulate the production of information for trials, and it rewards an attorney's creative efforts by giving his work product a qualified privilege from being shared with others." Pope v. State, 207 S.W.3d 352, 358 (Tex. Crim. App. 2006). That dovetails with the idea that true "work product" encompasses "material prepared or mental impressions developed in anticipation of litigation or for trial" or "communication made in anticipation of litigation or for trial" by a party, the party's attorney or their representatives. Cf. Tex. R. Civ. P. 192.5(a)(1), (2). "While the work product doctrine protects the communication of parties, attorneys, or agents, the underlying factual information is not protected." Pope, 207 S.W.3d at 358. How evidence may be characterized or impeached at trial, and materials developed for those purposes, are work product. The evidence itself is not.

Oh. I see Shannon beat me to the point.

quote:

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Originally posted by R_Smith:
It seems to me that any evidence that might have been uncovered by a defense investigator is work product.

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If that were true, then all a criminal need do is call his lawyer right after he commits the crime, have his lawyer's investigator come gather up all the evidence, and then deny access to it to the police. That's not the type of thing the work product doctrine was ever meant to accomplish.