Another year, another bad idea

Once again State Senator Rodney Ellis (D-Houston) has introduced his bill calling for reciprocal discovery in criminal cases - and, once again, it's a bad idea.

Over on the civil side plaintiffs and defendants are obligated to share their evidence with each other so that by the time a case makes it to trial (and very few make it that far), both sides know exactly what's going to be said and presented before the court. The ostensible purpose of the civil discovery rules is to encourage the parties to come to a negotiated settlement before trial.

Since both sides know what evidence the other side has in its arsenal, both sides can make a fairly accurate assessment of where their case stands and where their opponent's case stands. Having near perfect information should allow the parties to craft an agreement by which both sides get some of what they want without running the risk of a jury gutting one of them.

But over at the civil courthouse they're just arguing about money. They're arguing about what amount of money will "make a plaintiff whole" after suffering an injury due to negligence, breach of contract or fraud. At the end of the day someone writes a check (or not) and everyone goes home.

That, of course, isn't how it works at the criminal courthouse. For one, the parties don't start off on equal footing. A criminal defendant is presumed innocent unless the state can prove each and every element of the alleged offense beyond all reasonable doubt. That's a good deal different that the parties starting off even with one side only needing to present a quantum of evidence more than the other side in order to win.

While the legislature and the courts have shown a clear preference for negotiated settlements in civil cases, a criminal defendant has a right to be tried by a jury of his peers. While most judges would be more than happy for every case to be pled out, that would not be in the interest of every defendant.

A criminal defendant also has a right to keep his mouth shut. He can't be forced to testify and he needn't present any evidence at all. In the civil courthouse the defendant has to talk. He has to present evidence. While a criminal defendant can be found not guilty without ever putting on any evidence, it's impossible to win a civil case without putting on a case.

Requiring a criminal defendant to turn over evidence to the state in exchange for a peek at what the prosecutor has, would gut the Fifth Amendment protection afforded criminal defendants. Forcing a defendant to turn over documents to the state would, in no uncertain terms, be the same as requiring a defendant to testify and/or put on a case at trial. In one fell swoop we'd be dismantling one of the more important rights we possess.

In the counties in which I've practiced over the years the district attorneys have various versions of an "open file" policy that allows defense attorneys to review offense reports, witness statements, lab reports and the like. I know there are counties out there in which defense attorneys don't see some of these documents until trial - but just because some defendants in the state have to jump through extra hoops in order to prepare their cases doesn't mean we need to gut the constitutional protections for the rest.

The answer is not to require reciprocal discovery across the state. The answer is to spell out just what documents and evidence defendants are entitled to review prior to trial. At a minimum, every criminal defendant should have access to the offense report, witness statements, lab reports and any photographs, video and audio recordings.