Thursday, February 5, 2009

Waiting on an offense report...

I walked into the courtroom for County Court at Law No. 1 on the 8th floor of the Harris County Criminal (In)justice Center this morning on a first appearance on a "total refusal" DWI this morning all atwitter at the thought of being handed a copy of the offense report upon request. After all, that's what Harris County District Attorney Pat Lykos promised during her campaign.

During a candidate forum at South Texas College of Law on February 19, 2008, the following exchange took place:
Mr. Blow-dried Anchorman: "Would you implement a policy mandating that defense attorneys be allowed to photocopy all prosecution documents to which they have access, Judge Lykos?"  

Judge Lykos: "Yes, in fact the office should copy it for them and that way if there is any information in there that may endanger a witness, it can be redacted. But, yes, it should be supplied to them. That's justice."
Now I would first like to point out how very impressed I was with how Mr. Blow-dried Anchorman was able to word the question without letting it end with a preposition. I'm also impressed he was able to say words like implement. 

I would also point out that there was no mention in Ms. Lykos' response to how long it would take to implement her policy.  From her words it would appear that she felt justice demanded that criminal defense attorneys be given copies of offense reports - and, to borrow a phrase - justice delayed is justice denied.

So, did I get my copy of the offense report(s) filed against my client? 

Of course not. I asked the assistant prosecutor for my copy and she told me they didn't give out copies of offense reports. I told her that her boss announced during her campaign that she would give copies of offense reports to attorneys. She told me that the office policy was that no copies of offense reports would be provided. I asked her why that was the policy. She told me that she didn't know and that it wasn't her place to question office policy.

Well, to paraphrase Miami criminal defense attorney Brian Tannebaum, if a prosecutor can't make decisions on her own, then she's just a clerk.

Now I was curious to find out what the policies were in different jurisdictions. I knew that criminal defense attorneys weren't even allowed to look at offense reports in Williamson County (Texas) until the officer testified at trial.  On the other hand, both Galveston County (Texas) and Jackson County (Texas) allow criminal defense attorneys to make photocopies of offense reports.

Jeff Alford, a criminal defense attorney in Western Kentucky, told me that the prosecutors he deals with have an open file policy and that he gets everything in the file -- except their notes.

Trace Rabern, a criminal defense attorney in New Mexico, says that the state has an open-file policy, but "that only gets you what they know." She was not too comforted by that.

I would like to hear more about the policies in other jurisdictions and the reasoning (if any) behind those policies.


ambimb said...

By "offense reports" I assume you mean police reports? Most county attorneys in Montana have the "open file" policy -- upon request they provide copies of everything they have except their notes. You can also arrange to go and view their file to make sure you got everything. Of course, this doesn't mean you never have to litigate certain things or file motions to compel when your own investigation indicates there's more than they're admitting, but those cases are the exceptions, not the rules.

Paul B. Kennedy said...

Thank you for your comment. In Harris County there is an "open file" policy. We get to see the offense reports as well as everything else in the state's file, except work product,but we don't get photocopies of any of it. We have to take notes.

donzell said...

In the part of Georgia where I practice, we are able to get police reports before the preliminary addition, the DA's office has an unofficial "open file" policy where we can review their file prior to arraignment, but we cannot make photocopies. After arraignment, the "open file" policy still applies, and they provide us with copies of all their materials sans work product.

Anonymous said...

Oregon mandates mutual discovery by statute. ORS135.800 et seq

charcoaleyes said...

Brooklyn (Kings County, NY) has open file discovery where the DA's copy the paperwork and give it to you in court.

WI has the same system but you do need to file a discovery demand.

Paul B. Kennedy said...

I have a problem with mutual or reciprocal discovery because I believes it serves to lessen the state's burden of proof - and by lessing the state's burden of proof we are violating the presumption of innocence.

Anonymous said...

In New Hampshire by court rule we are entitled to open file discovery from the state. We are also required to turn over witness statements (minus work product) for all witnesses we intend to call. Unfortunately, some courts are requiring us to turn over statements we have obtained from witnesses that the state is calling, but not the defense. As you can imagine, this is a probelm because it requires a defendant to furnish evidence against himself. This has yet to be directly taken up by the NH supreme Court.

Anonymous said...

In Crawford County, KS, we just elected a new county attorney, a former member of the defense bar. To our surprise, he is now requiring, in order to get discovery prior to prelim, the defense discovery order must include the defendant's agreement to provide inspection and copying by the prosecution of all papers, photos, etc. which are to be defense exhibits at ANY hearing; WORSE STILL, defense must provide to the State, 30 days prior to trial, a list of witnesses and exhibits which the defendant intends to call or introduce at trial. We are planning an uprising. Please advise if you have suggestions!

Andy Cowan said...

Here in Mass we get police reports as a matter of course at arraignment. We are also entitled to 911 tapes, police radio tapes, statements (and in indicted felony cases, grand jury minutes) of government witnesses, and access to physical evidence, all photographs and trial exhibits the Commonwealth intends to use, and of course anything of an exculpatory nature. The Commonwealth is supposed to provide complete discovery at or before the pretrial conference (30 or 60 days after arraignment, depending on whether the client is in custody), but as a matter of practice we often don't receive it until 2-3 weeks before trial, or later.

Anonymous said...

In NJ -- in theory -- you get the entire state's file with the caveat you have to ask for it & if you do you in return must give any witness statements you have. The appellate courts have suggested there is a potential problem with the rule. The def. discovery rule is more honored in the breach than the observance. Also discovery from the State is often not much better than that in Texas, in that you might not get a police report until AFTER the witness is off the stand (which has happened more times than I care to remember and then held to be "harmless").