Tuesday, November 9, 2010

Discovery before trial

I've mentioned this issue before, in passing, that as prosecutors we have a duty to share a lot of information with defense counsel before trial (a process called "discovery"). That mention was here, when I was checking off my pre-trial tasks.

But a defense lawyer in Virginia just posted about the same issue, saying how state's-oriented the system is there. And reading his blog entry I was very surprised because here we do things very differently.

Check his post out here and then read on.

We have what we call an open-file policy, which isn't 100 percent true but almost is. I'll list out the major pieces of information and show how (or if) we provide these to the defense. Also, bear in mind that unlike Jamison's jurisdiction, we provide this info well before trial: weeks usually, and in some cases months before:

Police report -- defense counsel fills out a form and we provide a complete copy of the offense report (we do redact out sensitive information). Usually the first thing they ask for and get.

Defendant's statement -- any written or recorded statement is usually the second thing defense counsel asks for, and gets.

Videos -- this would be in-car videos, or store surveillance tapes. I have my investigator make a copy and provide it to defense counsel. Some ADAs don't like to give out copies, instead making the tapes available for viewing at our offices.

Criminal histories -- my investigator will run the CH of the defendant and I'll provide a copy to the defense. Same goes for copies of CHs for witnesses (though not until we are sure they are actually going to testify).

Photos -- if there are not many, I will provide copies. If I have a lot, like in a murder case, I'll invite defense counsel to my office to look through them, and I'll try to let them know which ones I intend to offer at trial.

Forensic reports -- I usually provide copies of these when asked to. I always make them available for inspection.

Notices -- we provide a list of potential witnesses, as well as a list of experts we intend to call at trial. We also send out a notice listing all the offenses and "bad acts" we believe the defendant has committed that we'll seek to have admitted at trial, either during the guilt phase or the punishment phase.

Exculpatory/mitigating information -- under the Constitution we are required to share with the defense any information that (put simply) could help the defense.

And what do we get in return?


Diddly squat.

Yep, that's right, in Austin we do not have "reciprocal discovery," which is to say the defense doesn't have to share with us any witnesses, any evidence they might come across, or anything else.

In fact, I've tried several cases where the defense calls a witness and I'll look at my co-counsel and say, "Who?" On the one hand it's frustrating because no one likes to have to ask questions completely unprepared, but on the other hand it does make life interesting. And interesting is good.

Oh, and just to be clear: the State has the burden of proof. We're trying to convict someone of a felony, so it's right and proper that any inequities in the discovery process tilt in his/her favor and against us. I think a system where the defense has last-minute or restricted discovery isn't particularly fair and I'd feel very uncomfortable limiting a defense lawyer's access to basic information.


  1. I suppose requiring that witness lists be mutually disclosed would not offend my ideals or sense of fair-play; i could see why we'd want all evidence come out as early as possible that would let the case be avoided or dismissed. Still, while i'm surprised (shocked?) at the story from VA, nice to see a good post that captures a sense of our ideals in practice.

  2. In Florida we have a similar open file policy where we give the defense everything as soon as we get it from LE and they send their blanket discovery requests. They are however required to list any potential witnesses, typically just name and typically buried within a laundry list of "witnesses" who know little to nothing. Our office is more giving than others in the state but it does foster a good working relationship with many of the local defense attorney's, which as I am sure you know makes life a bit easier.

  3. DAC, you will recall a case I recently had in your court, in which someone from your office at a higher pay grade than yourself said I could view the videotape but couldn't have a copy.

    If you know, and if you're at liberty to say, what's the rationale for that? In that particular case it might have made my job a little easier if I could have shown my client why her conduct was perceived the way it was perceived, (or in other words, that she behaved VERY stupidly), rather than just having to explain it to her and having to have her take my word for it.

  4. Don, not speaking to that particular decision because I can't, obviously. I think our policy is that we give you access to view things like videos, and giving you copies is kind of going the extra mile. I imagine in cases where copies are not given, the ADA is resorting to the default position. In some cases there is a fear that videos might, for example, make their way into the wrong hands, or even end up on Youtube or something. I'm pretty sure that wasn't the case, we know you well enough to trust you on something like that, but it's often easier/safer for an ADA to just stick with the default "access/view-only" policy. That make sense?

  5. How much info are you responsible for from a crime lab, aside from the lab report, in regards to discovery?

    Let's say for example that the Austin DPS forensic lab had a major systemic meltdown during a time when your evidence was being analyzed in the lab (e.g. unknown source of contamination found throughout the DNA lab, rampant lost/stolen drug evidence, lab-wide erroneous omission of negative results from lab reports, etc.).

    Are you required to disclose this potentially exculpatory info to the defense? (Maybe a better question is, would the crime lab disclose this information to you?) How does a DA know what information is exculpatory, and what is not, in regards to the crime labs operations?

    Crime labs have yearly audits detailing the problems found in the labs (strangely, found by auditors, but often not by the people who actually work in the lab on a daily basis). Also, routinely, problems are discovered and documented by analysts, but these documents are not always included in the case file from the lab (i.e Corrective Actions documents and other internal memos). Have you found that most defense attorneys are savvy enough to find and use these documents on their own for cross-examination of expert witnesses, or do most defense attorneys stipulate to the work product or accreditation of the labs?

  6. Anon: now that's what I call a question. I'll answer as best I can. As you note we do provide the lab report showing the results of testing. Now, if there's contamination, yes, we will be informed by the lab. (Let me say that this hasn't happened to any of my cases, so I"m speaking a little hypothetically here.) And, of course, I'd notify defense counsel.
    I've never seen one of those audits but I understand they deal, often, with issues that don't directly affect the accuracy of the samples tested, so I wouldn't be surprised if I didn't hear about those.
    As to how we know what is exculpatory and what isn't, that's a good question. If I have any doubt I'll talk to my colleagues and, frankly, the usual position we all take is: If you're wondering whether it qualifies as Brady (i.e. exculpatory) then it probably is.
    The question about defense attorneys is hard for me to answer because I just don't know what kind of research and background investigations they do. In the few DNA / blood test cases I've had, only one lawyer has tried to use internal reports from the past to discredit the analyst.
    Let me know if anything needs clarifying...

  7. Do I have to give the prosecutor my defence evidence before trial? The prosceutor has filed a discovory motion for me to give him my defence vidence to him before trial, is that legel? I'm in Fulton Missouri. Curcit court


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