The state’s current discovery laws, “may increase the likelihood of wrongful convictions,” says the report, “Improving Discovery in Criminal Cases in Texas.”
Texas Appleseed and the Texas Defender Service, both non-profit advocacy groups, created the report, with pro bono help from lawyers at Locke Lord.
The report recommends amending the state’s criminal discovery statute to: provide criminal-defense lawyers with automatic access to discovery without a motion; require prosecutors always to disclose police reports, witness statements, expert reports and criminal histories; require some disclosures by the defense; set deadlines; and impose an “explicit continuing obligation to disclose.”
Locke Lord partner Charley Davidson of Houston, an editor of the report, didn’t immediately return a telephone call or email seeking comment.
Locke Lord attorneys interviewed over 60 prosecutors and criminal-defense lawyers for the report. It also analyzes open records requests on the discovery policies in 43 Texas counties — large and small, urban and rural. The researchers compared those policies to American Bar Association best practices, and standards from other sources. They also studied the Texas criminal discovery statute and compared it to statutes in other states.
The report finds that the Texas criminal discovery statute requires few disclosures by prosecutors and criminal-defense lawyers, compared to the best practices. It says some Texas counties have open-file policies meeting best practices, however, the rules vary county-to-county, “meaning access to justice can depend…on where the case is filed.”
Some Texas counties require defendants to waive some rights before opening the prosecutor’s file; others make criminal-defense lawyers copy documents by hand.
Lawmakers this session will consider bills—Senate Bill 91, among others—proposing reciprocal discovery in criminal cases. [See, “Possible new legislation that would impact lawyers and judges,” Tex Parte Blog, Jan. 2, 2013]