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- in Criminal Law Developments
- by Stephen Gustitis
To date, the rules governing a criminal defendant’s right to discovery in Texas were draconian. Unless evidence was plainly “exculpatory or mitigating,” the first time a criminal defendant saw a police report was after the officer finished testifying during trial. Even in jurisdictions with an “open file” criminal discovery policy, prosecutors were reluctant to provide the defendant with copies of discovery documents containing sensitive and private information about alleged complainants and witnesses. Most times, if the disclosure occurred at all, it was accompanied with an agreement that sensitive information would not be revealed to the defendant or released to others outside the defense team. These agreements were a fair trade for the defendant, helped defense counsel provide zealous representation, and fostered trusting relationships between worthy criminal justice adversaries.
In contrast to prior law and practice, the “Michael Morton Act” became effective in Texas on January 1, 2014. The new Texas criminal discovery statute now commands prosecutors to “open their file” to the defense and keep records of the evidence they disclose in attempts to reduce wrongful convictions. The new law requires disclosure of all police reports, witness statements, and any other evidence material to the prosecution. Significantly, the Act imposes an obligation on defense counsel to protect sensitive information contained therein.
Criminal defense lawyers are now obligated to redact certain information provided by prosecutors through discovery. Texas Code of Criminal Procedure, Article 39.14(e) states: “Except as provided by subsection (f), the defendant . . . may not disclose to a third party any documents, evidence, materials, or witness statements received from the State under this article [ . . . ].” Subsection (f) states: “The attorney representing the defendant [. . .] may allow a defendant, witness, or prospective witness to view the information provided under this article, but may not allow the person to have copies of the information provided, other than a copy of the witness’s own statement. Before allowing that person to view a document or the witness statement of another under this subsection, the person possessing the information shall redact the address, telephone number, driver’s license number, social security number, date of birth , and any bank account or other identifying numbers contained in the document or witness statement.”
These new Texas rules make criminal discovery for Bryan-College Station defense lawyers a fair trade for the defendant. The rules make information gathering transparent and thorough, even though dissemination of information is limited to only those who need to know. Importantly, our clients may not “need to know.” We criminal defense lawyers should be careful to act responsibly and abide by the new rules. This law has been a long-time coming. There was strong prosecution opposition to the law because sensitive information was placed at risk. We should also call to mind what the legislature gives, it can also take away. Let’s embrace the new system as a tool to settle cases and provide effective assistance of counsel. We have an important obligation to the new system and to its integrity.