for the defense - Voice For The Defense Online

Rick Hagen
Nothing Changed
President’s
Message
“I
won’t let you look at the file, but I’ll read it to you.” That statement oftentimes is the
generosity defense lawyers receive from prosecutors who have a closed file policy, what
I call bedtime story discovery. Other prosecutors have what I call “a look but you can’t touch”
policy, allowing defense lawyers to take notes from their files but not allowing copies. In
some jurisdictions the file is completely closed and the defense receives nothing until trial.
Mean ing ful discovery reform is long overdue.
While discovery policies vary across the State, there are fair-minded Texas prosecutors
who have an open file policy. Bless them. Any type of closed file policy increases the costs
to the taxpayer in court-appointed cases. More importantly, closed file policies increase the
chance that a Brady violation will occur and that the innocent are convicted.
Article 39.14(a) of the Texas Code of Criminal Procedure, in part, currently provides the
following: “[T]he court in which an action is pending shall order the State before or during
trial of a criminal action therein pending or on trial to produce and permit the inspection
and copying or photographing by or on behalf of the defendant” various documents in posses
sion of the State. In 2005, the Legislature inserted the word “shall” in the above clause to
replace the word “may.” As a result, nothing changed.
The statute must be amended to provide for complete discovery before trial, and substan
tially before trial. Article 32.01 of the Code of Criminal Procedure provides that a person
can be detained in jail for 180 days before being indicted. That law allows the State six months
to prepare a case while the person accused remains in jail. If six months is enough time for
the State to prepare, we also need complete discovery well in advance of trial.
In 2003, during the 78th Legislative Session, an effort was made at discovery reform.
The reform effort in 2003 was publicly opposed by prosecutors operating under closed file
policies. They need to rethink their opposition.
Closed file jurisdictions impose a tremendous amount of pressure on a prosecutor regard
ing Brady material. Prosecutors are oftentimes not in a position to know whether or not
certain evidence meets the definition of Brady and can unintentionally withhold evidence that
8 VOICE FOR THE DEFENSE July/August 2008