Part 7: Securing Formal and Informal Discovery
In this section we will discuss the procedures for discovery, how they have changed in recent years, and how you can be successful in securing all the discovery to which you are entitled. “Discovery” is the part of the criminal trial process when your defense attorney gets a chance to peek into the State’s case. Unless you have had an examining trial, this might be the first time your criminal defense attorney interacts with the State’s prosecutor concerning your case. While many attorneys treat discovery as merely a pesky task to be completed, experienced attorneys know that this initial interaction with the State can reveal important information about the opinions and biases the State has about your case, as well as holes in the State’s case that can be used for your defense.
How Does Discovery Happen?
Even though most State prosecutors offices now informally provide discovery in every case as a matter of habit, it is still worthwhile for defense attorneys to formally file a written motion requesting that the State make their records available and specifying everything that should be produced. An informal request will generally secure copies of the offense report(s), officer and witness statements, an evidence list/log, and toxicology reports when available. Whereas in a formal request (i.e., a Motion for Discovery) filed with the court, your defense attorney can ask the State to not only supply copies of items they already have such as video/audio recordings and photographs, but to also compile and produce information such as witness lists and contact information, summaries of expected expert testimony, prior criminal records and evidence the State intends to use during the punishment phase. Another advantage to formally requesting Discovery from the State is that if the court hears your motion and grants your requests, then the State is compelled to comply. Failing to do so can mean exclusion of non-disclosed information at the time of trial (also known as suppression of the evidence), which can eventually lead to the result you want: a dismissal of your case.
After you and your Criminal Defense Attorney have reviewed information gathered during the investigation and again during the discovery process, your attorney will begin to develop a “theory of the case”. This includes ideas about which elements of the offense can be proved by the State, which witnesses could help or hurt your case, and the likelihood of success if the case goes to trial. Similarly, the State will also begin to develop such theories but anything written by the State regarding their theories and trial strategies will not be disclosed to defense because it is what’s known as Work Product, and is exempt from Discovery disclosure.
New Discovery Rules Lead To More Transparency
Let us take a minute to explain that the criminal discovery process has not always been this straightforward. Even though the Texas Code of Criminal Procedure 39.14, which governs the discovery process, has been in effect since 1965, it has been greatly improved in only the last few years to protect defendants and make the process more transparent.
Beginning in the 2013 Legislative Session, the Texas Legislature made extensive efforts to force State prosecutors to provide discovery information to defendants, rather than allowing them to hide important and potentially exculpatory* and mitigating evidence. The Michael Morton Act (effective in 2014 and expanded in the 2015 Legislative Session) specifically sets out what must be provided by the State once the defendant or his attorney has made a formal request. It also provides that the State must “produce and permit the inspection and the electronic duplication, copying, and photographing” of the requested material. This change greatly benefits the defense because the old practice was to only make the information available for inspection: Criminal Defense Lawyershad to set an appointment to view the State’s file and take copious amounts of handwritten notes, rather than receiving their own copy of everything. These changes and many more came in the wake of revelations that many innocent people had been convicted by over zealous prosecutors who purposely hid State’s evidence from the defense team that could have otherwise prevented the conviction or mitigated the punishment. CCP 39.14(h) goes a step further than Brady v. Maryland by requiring the State to disclose any exculpatory, impeaching or mitigating evidence “as soon as practicable”, rather than waiting until the case proceeds to trial. This allows the defense to consider such evidence even before a plea agreement is made and thus make a more informed decision.
Cofer Law Protects Your Rights To Discovery
As we discussed in Part 6 of this series, Cofer Law, P.C. always conducts our own investigation of the case and never relies solely on the State to provide information. The reasoning is two-fold: our Fort Worth Criminal Attorneys and investigators are often able to find information that has been overlooked by the State, and we cannot always rely on the State to turn over everything the defendant is entitled to receive (even though CCP 39.14 now exists to prevent this situation). The reason for this is that although it is the prosecutor’s responsibility to disclose “information in the possession, custody, or control of the state”, sometimes the different arms of law enforcement do not communicate effectively with one another. This is advantageous for the defense because it can lead to suppression of the non-disclosed evidence, and a mitigated punishment or dismissed case. If you are involved in a high-profile case or are dealing with a particularly litigious prosecutor, it will be important to have experienced attorneys on your side who are intimately familiar with the rules of discovery and evidence, and prepared to hold the State to their required duties. Don’t hesitate to contact us if you believe you aren’t being treated fairly by the State or that the State is withholding information. We know how to enforce these laws that have been put in place to protect you.
*Exculpatory evidence is “evidence favorable to the defendant in a criminal trial that exonerates or tends to exonerate the defendant of guilt.”
