Monday, February 25, 2013

Reciprocal discovery is a wolf in sheep's clothing

There's a battle a-brewing in Texas. A bill, sponsored by State Senator Rodney Ellis (D-Houston), is making its way through the legislative process that would greatly alter the means by which discovery in criminal cases is conducted.

Texas already has reciprocal discovery under the civil rules. Discovery in civil cases is nothing more than an over-the-top game of "you show me yours and I'll show you mine." The parties in a civil dispute share witness lists, expert lists, exhibits and theories of the case. The point is to make the facts and issues so crystal clear that one side of the other presses for an out of court settlement.

On the criminal side, however, discovery is conducted differently from county-to-county. Most district attorneys have what's known as an "open file" policy. That means that defense attorneys are able to view the state's evidence throughout the course of the case. Offense reports, witness statements, photographs, videos. You name it - so long as it's not considered work product, the defense gets to see it.

Other counties hold on to a "closed file" policy. In those jurisdictions you only get what the DA is willing to let you see. If you want more, you'll have to see the judge.

The missing piece in a closed file county, then, is the lack of an offense report. Now whether you get a copy of the offense report or you just get to take notes, attorneys in open file jurisdictions have an advantage as they know the names of all the officers involved and they can see where the state's case is weakest. And, since Brady material is somewhat in the eye of the beholder, that lack of an offense report puts the defense attorney behind the 8-ball.

And this is the why of Sen. Ellis' reciprocal discovery bill. Defense attorneys in closed file counties want to be able to see the offense report. Organizations such as The Innocence Project want to be able to see and compare offense reports.

But to compel the defense to provide information to the state about its case serves only to shift the burden of proof. There is no reason for the defense to share any information prior to trial. As a defense attorney, do you really want the state to know the names of all of your potential witnesses? Do you really want the prosecutor to have free reign to intimidate your witnesses?

The state has the burden of proof. The state gladly assumed that position when a prosecutor filed either an information or an indictment in your client's case. As the defendant is presumed innocent unless proven guilty, there is no need for the defendant to tell the state anything. There is no need for the defendant to give the state any information at all.

Over on the civil side the parties are considered to be starting their case from the same point. At the end of the trial, the judge will ask the jury to determine, by a preponderance of the evidence, who proved their case. It's all a contest about who can move the ball past the 50-yard line. But that's not what criminal law is all about. Our clients get a head start at trial. It's not a level playing field - and it's not supposed to be. Our Founding Fathers were less worried about a false arrest than they were a fall conviction.

The real battle should be over open-file versus closed-file jurisdictions. Those few holdouts from producing offense reports should be required to turn then over to the defense. Reciprocal discovery, as propounded by Sen. Ellis, would force the defense to share its most intimate secrets with the state. And so, while the idea seems attractive to a good many folks (particularly non-lawyers who haven't the slightest idea what really goes on in a courtroom), it will do far more harm to criminal defendants than good.


Gideon said...

Well, but that's misleading:

1. Open file policies are policies. They can change at a moment's notice. Do you really want to rely on that, rather than on a court rule? I don't.

2. I'm pretty sure the bill doesn't ask you to fork over your witnesses the day you're appointed. I have a rule that says we have to provide a list of potential witnesses. I do so, on the morning on jury selection.

Don't resist it because it sounds bad. It's a damn good idea to have mandated discovery so we're not at the whim of benevolent (and in your case elected) prosecutors.

Paul B. Kennedy said...


We do have mandated discovery in Texas - Article 39.14 of the Code of Criminal Procedure. There are also additional provisions found in the Rules of Evidence.

What's at play with SB91 is access to offense reports. Is it worth having to hand over material and lose the element of surprise just to get your hands on an offense report?

Gritsforbreakfast said...

Paul, how do you account for the fact that nearly every other state and the feds have some version of reciprocal discovery? Have the bad outcomes you predict occurred there?

Gideon is right that the bill goes further on prosecutor disclosure than the rules you cite. And like Gideon, every lawyer I've talked to who's practiced in those states says the sky-is-falling rhetoric is WAAAY overblown.

The Texas defense bar IMO is making a critical strategic error. Saying 'no way no how' just loses your seat at the negotiating table when the bill passes over your objections, whereas right now, based on the Michael Morton momentum, etc., for once TCDLA could actually modify and improve the bill if they'd try.

Your approach will end up letting the prosecutors modify the bill like they want while the defense bar sits on its hands and cries about losing "the element of surprise," even as you complain loudly all the while about "prosecution by ambush." Bad optics. Bad politics.

Paul B. Kennedy said...

Sen. Ellis' bill is a bad bargain for the defense. If Sen. Ellis was really concerned about criminal defendants, he would have modified CCP 39.14 to include offense reports and witness statements.

A defendant has no burden of proof. A defendant need not present any evidence at trial. This bill would require a defendant to provide the state with the names of his or her witnesses and any physical or documentary evidence the defendant intends to introduce at trial.

This bill pretends there is some equivalency between the state and the defendant. There is none. The state is attempting to take away the liberty of a person. Any attempt to portray this bill as "leveling the playing field" is deceitful and dishonest.

The only thing the defense should be required to disclose is an affirmative defense. The state can already get information on defense experts and their reports if they file a motion with the court.

The state is already required to turn over Brady material - yet there is no way to enforce it and no sanction against the state for its failure to do so. This bill would reap a windfall for the state with little or no benefit to the defense.

Gideon said...

You keep saying the same thing, but I just don't see where it's true. What element of surprise are you talking about? Witness lists? C'mon, are you serious? Do you rely want to rely on the good will of prosecutors to keep going with "open file" policies? That's nonsense and a disservice to clients.

Let me ask you something: say you're introducing an exhibit at trial. Currently, when do you show it to the prosecutor? And how often is it going to break open the case? I'll tell you when I do it: a few minutes before I'm introducing it in court. That's it. Even with a similar rule.

You're acting like all of a sudden now you'll have to disclose your entire defense strategy months before any potential trial and bend over backwards. It's a bit dramatic and kind of ridiculous, to be honest. I don't know the specific details of how Texas courts operate, but I can tell you that we do just fine here in CT with this "reciprocal discovery" which really isn't that.

Paul B. Kennedy said...

According to the bill an attorney who doesn't produce the material described can be held in contempt. Well, just who do you think is going to be held in contempt? Not the prosecutor.

Now if you don't mind the DA sending over an armed investigator to interview one of your witnesses in an attempt to intimidate them, then handing over a list of your witnesses is fine.

The defense gives up far more under this bill that it gets in return. Now maybe this is how everyone else practices criminal law outside Texas - and if it is, that's okay. But this is not the way we practice in Texas.

Texas already has very liberal discovery rules, there is no reason to change them by forcing the defense to give information to the state.