Texas is currently looking to revise it’s discovery rules, and it has a few defense counsel gnashing teeth at the proposed changes to reciprocal discovery. Reciprocal discovery are obligations placed upon defense attorneys to provide prosecutors with certain information, statements, and notifications prior to trial.
For a good overview of the Texas rule and links to other opinions, take a look at what Gideon (anonymous pseudonym of a computer in a Public Defender office in New England which, years ago, achieved self-awareness) at A Public Defender has to say about it.
Gid and I share the same view. Discovery rules are a give and take. I can’t think of a time when I’ve given-up something that wounds my client’s case. At the same time, discovery has yielded many, many benefits to my cases. Granted, the military rules are very liberal and vigorously enforced by military judges–especially in favor of the defense.
Note: I’ve attached the text of military reciprocal discovery rules at the end of this article, if you’re really, really bored.
What I think is a bigger benefit of this discussion is that it is crossing jurisdictional lines. I’ve met many lawyers who become mired in their chosen jurisdiction and forget that anything outside of their state/county/parish exist. Gid juxtaposed the TX rules with those of his state, and I’ve done the same with mine. Were it not for the Texas hubbub, I wouldn’t have reviewed the Rule for Court-Martial.
Too often, we merely accept our local/state rules because we are familiar with them.There’s comfort derived from the same because you know how it works, and how it won’t. That doesn’t make it right, or the best system. It helps to leave the house now and then.
With that said, here’s my take on the TX reciprocal discovery (juxtaposed with Rule for Court-Martial 701).
Sec. 2. DISCLOSURE BY DEFENDANT. (a) As soon as practicable after receiving the initial disclosure […] the defendant shall disclose […] and permit inspection, photocopying, and photographing of the following materials and information:
(1) any written or recorded statement by a witness, […] if the defendant intends to call the witness at the trial;
Yep, already have to do this. RCM 701(b)(1)
(2) any record of a criminal conviction admissible for impeachment […] of a witness, […] the defendant intends to call at the trial, if that information is known to the defendant;
Nope, not doing it. Prosecutors can go to their fancy-schmancy database (or that of their LEOs) and find it themselves.
(3) any physical or documentary evidence that the defendant intends to use at the trial and, on a showing of materiality by the attorney representing the state, the opportunity to test that evidence;
This is a fun one in the military. Defense counsel has a choice to make. If a formal discovery request is made for things outside the prosecutor’s automatic obligations, the defense counsel triggers additional reciprocal discovery obligations. Make good choices, defense counsel. RCM 701(b)(3)
(4) the names and addresses of the witnesses called to present evidence[…] the defendant intends to call at the trial; and
Why this isn’t weaved-into (1) is not known to me. Again, RCM 701(b)(1)
(5) any report produced by or for an expert witness the defendant intends to call at the trial.
As with (3), defense counsel should make good choices. RCM 701(b)(4)
(b) On a request by the state, a defendant planning to offer evidence of one or more defenses listed in Chapter 8 or 9, Penal Code, or evidence of an alibi defense, shall file a good faith notice of intent to raise the defense […] Any notice provided under this subsection is for purposes of discovery only and is not admissible at trial unless the court finds that the contents of the notice were not made in good faith.
Disclosure of certain defenses is old news for military practitioners, with a few additional caveats and duties. RCM 701(b)(2)
So, the TX rules are certainly not shocking to my conscience, but they might be if I’d been immersed in the previous discovery rules for years or decades. To me, they appear to be the usual give and take that generally benefits the accused far more than the government.
As promised, here’s the rules that bind me in my jurisdictions (from Rule for Court-Martial 701; please ignore any strange hyphens, as they are a result of cutting and pasting from the Manual for Courts-Martial):