Thursday, May 14, 2009

Civil rules of discovery can help you in a criminal case

Texas Rule of Civil Procedure 176. "Subpoenas"

176.1 Form. Every subpoena must be issued in the name of "The State of Texas" and must:

a. state the style of the suit and its cause number;
b. state the court in which the suit is pending;
c. state the date on which the subpoena is issued;
d. identify the person to whom the subpoena is directed;
e. state the time, place and nature of the action required by the person to whom the subpoena is directed;
f. identify the part at whose instance the subpoena is issued, and the party's attorney of record, if any;
g. state the text of Rule 176.8(a); and
h. be signed by the person issuing the subpoena.

176.3(b) A subpoena may not be used for discovery to an extent, in a manner, or at a time other than as provided by the rules governing discovery.

Texas Code of Criminal Procedure, Article 39.14. "Discovery"

39.14(a) Upon motion of the defendant showing good cause therefor and upon notice to the other parties, the court in which an action is pending shall order the State before or during trial of a criminal action therein pending or on trial to produce and permit the inspection and copying or photographing by or on behalf of the defendant of any designated documents, papers, written statement of the defendant (except written statements of witnesses and except the work product of counsel in the case and their investigators and their notes or report), books, accounts, letters, photographs, objects or tangible things not privileged, which constitute or contain evidence material to any matter involved in the action and which are in the possession, custody or control of the State or any of its agencies...

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Tired of hearing the prosecutor tell you he can't produce the documents you requested because they aren't in his possession or under his control or custody? Then take advantage of the rules of civil procedure.

The Texas Rules of Civil Procedure provide for abundant discovery as the civil courts prefer not to have to deal with "trial by ambush." The rules provide tools for both plaintiffs and defendants to see all of the documents and evidence that will be presented at trial with the hope that this discovery will lead the parties to settle their disputes without the need for a lengthy trial.

These rules also offer the opportunity for criminal defense lawyers to "go in the back door" and obtain necessary evidence to defend their clients. Prosecutor tells you he doesn't have the sheriff department's inventory guidelines? Issue a subpoena to the sheriff's department for those procedures. Prosecutor won't produce a video tape or audio tape because he says he doesn't have it? Subpoena it from the police or sheriff's department.

In Texas you don't even have to go through the court to issue the subpoena. You can draft on your own and have your investigator serve it to the proper custodian of records. Sure, the prosecutor may get perturbed because of the route you're taking to get the records you need, but there's nothing he can do about it because the District Attorney is not a party to the subpoena. If the agency on which you served it wishes to fight it, they may -- but they must show the court why the requested documents aren't relevant to the case.

Down in Galveston County, the district attorney's office seems to want to have it both ways. They will tell you they don't have possession or custody of the documents you request when it suits them and, if you try to subpoena them, they will tell you that you can't have them. Unfortunately for the district attorney, it doesn't work that way. You either have possession, custody or control of the documents or you don't.  

You can also take advantage of your state's Open Records Act. Prosecutor tells you he doesn't have the arresting officer's civil service file? Issue an open records request to the law enforcement agency. Prosecutor says he can't give you any documents related to the warranty on the state's breath machine? Issue an open records request to the agency in charge of maintaining the machine.

When gathering evidence in a criminal case, be creative in your approach and don't forget that the rules of civil procedure may give you an additional tool in putting your case together.

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