It’s that time again, the Texas Legislature is back in session and tinkering with the criminal justice system. There’s been discussion of major changes, like an entire re-write of the Texas Code of Criminal Procedure, but it looks like that isn’t happening. Almost as big, though, is the bill Sen. Rodney Ellis has filed: SB 1611, commonly called the reciprocal discovery bill.

First, a little background. In Texas (unlike nearly every other state in the union and the federal system) in Texas neither the prosecution nor the defense are required to turn over much of any discovery (reports, witness statements, documents, et cetera) to the other side prior to trial. It’s the complete opposite of a civil trial where each side gets to depose the other’s witnesses, request documents, et cetera. This discovery-less system has been dubbed by many as trial by ambush (going into trial you may know the general outline of the allegation, but you may have no idea what you’re really walking into).

Some DA’s offices (like Tarrant and Dallas counties) have internal discovery policies that require the prosecutor to turn over discovery, but 1) there’s no uniformity as to what you get county to county, (for instance in Dallas most prosecutors won’t give you witness contact information, going so far as redacting all identifying information outside the name, whereas in Collin county the prosecutors freely give you that information) and 2) there’s no legal requirement they follow their own policy (if an office decided to rescind such a policy there’d be an outcry amongst the defense bar, but there would be no way to stop the change).

On the flip side, defense lawyers have to turn over almost nothing. Other than filing notice if they intend to enter a “not guilty by reason of insanity” plea at trial, the defense isn’t required to give notice or turn over any documentation. The longstanding idea behind this is that the state is the all-powerful entity looking to take away the defendant’s life and/or liberty, so they should have to show their cards.

With the growing number of exonerations through the work of groups like the Innocence Project (they’re not the only game in town, but they’ve done a lot), this trial by ambush system has been exposed for what it is: highly unfair to the defendant. We say that a defendant is entitled to a fair trial and an effective defense, but how can someone get a fair trial with an effective defense lawyer if the state holds secret evidence, withholds evidence that discredits the state’s case, et cetera? The movement to make full and fair discovery Texas law has been gaining steam, perhaps culminating in the best chance for passage this legislative session, but it ain’t coming for free. Statewide, prosecutors have argued that the defense should give up some discovery too. It started with a bill that would’ve required the defense to show just about it’s entire hand, but at the deadline for filing bills, that bill was scrapped and replaced by Sen. Ellis’ SB 1611. So what would 1611 require?

Discovery from the State:

No later than 30 days after the defendant’s initial appearance in court, the state must turn over all evidence relevant to guilt or punishment, including:

  • oral and written witness statements,
  • defendant’s prior criminal record
  • all witnesses’ prior criminal records
  • search warrants, et cetera
  • physical evidence
  • names/addresses of expert witnesses
  • plea deals/etc for cooperating state’s witnesses
  • witness list (including witnesses called to rebut defendant’s alibi) including witnesses’ last known addresses upon a showing of good cause
  • a complete copy of the detective/investigator’s file

Discovery from the Defense:

After receiving discovery listed above from the state, the defense must turn over:

  • written or recorded witness statements
  • physical evidence
  • names, addresses and reports by or for expert witnesses
  • witness list
  • notice if defense intends to raise an affirmative defense
  • location of alibi and alibi witnesses

Personally, while I think the defense is giving up a lot here, I think we’re getting more in return. I practice in a a county where the DA’s have an “open-file” policy and routinely give up most of what this bill requires, but in many counties across the state defendants are not so lucky. It seems to me that it’s high time to put an end to this; if some measure of reciprocal discovery is the price, then I say it’s worth it.

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