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.