In the past, the sticking point has been opposition by the defense bar to the "reciprocal" aspect of the bill, believing the practice abrogates the defendant's Fifth Amendment right against self incrimination. The burden of proof is on the state, the argument goes, and the defense is not obligated to put on witnesses or evidence at all. Meanwhile prosecutors have vehemently opposed codifying an "open-file" policy without the defense giving up something, too - hence "reciprocal discovery." The result has been a years-long stalemate. Here's a summary of what would be required of the defense under the filed bill (see the bill text):
- Written or recorded statements from witnesses the defense intends to call at trial,
- Any criminal record history of defense witnesses, if known,
- Any physical or documentary evidence the defense will present at trial, giving the state an opportunity for independent testing upon a showing of materiality by the state,
- Names of witnesses who will testify, addresses of some,
- Any report prepared by an expert witness who will testify,
- Prior notice of any alibi defense, including location and witnesses.
The fourth and sixth bullets, though, are where I've heard the most complaints from defense counsel when this bill came up in the past. Specifically, there's a concern that prosecutors or the police will engage in witness intimidation, threatening alibi witnesses or others scheduled to testify for the defense.
Another, broader complaint I've heard is that reciprocal discovery fails to take into account how trials actually work and the way defense strategies may change over their course. E.g., imagine that a defendant knows of a witness whose testimony might help his or her case, but the initial defense strategy was simply to put on no witnesses and force the government to prove the elements. Then, during trial, the testimony of a prosecution witness turns out to be particularly devastating and the defense strategy changes. If they then call a witness they hadn't previously disclosed, will they get dinged over it by the courts? Will the witness be allowed? ¿Quien sabe?
For those reasons I tend to sympathize with defense critics of this bill, but also think that the need for open-file legislation is so great that, if it were me, I'd be willing to compromise. Making the defense disclose all witnesses, including impeachment, is way too broad. But having them disclose witnesses related to any affirmative defense, like an alibi or insanity, strikes me as a more reasonable, modest suggestion that would cause fewer practical problems. I don't know whether prosecutors would think that's enough (somehow I doubt it), but make me Philosopher King and that's how I'd split this particular baby.
We've been round and round these debates for too long. With all the focus on the issue following the Ken Anderson court of inquiry, the issue of open files is ripe for legislative action. It'd be a shame if Texas passed up the chance to require them by allowing the perfect to become the enemy of the good.
CORRECTION: This post incorrectly stated that the bill could require disclosure of impeachment witnesses, but in fact it only requires disclosure of witnesses the defense intends to call at trial. Grits regrets the error.