Tuesday, September 18, 2007

Justice Project: Expand discovery in criminal cases

The Austin-based Justice Project has just published a new study arguing for expanded discovery in criminal cases. Writing on Texas Kaos, Justice Project director Edwin Colfax says that:
In Texas, discovery laws are practically non-existent. Unlike many other states. Texas has no statutes that mandate automatic discovery. The defense must file a motion requesting access to information including documents that pertain to the case, witness names, addresses, and statements, information on experts, and materials related to sentencing. There are no clearly defined timelines for discovery to occur prior to trial, leaving defense counsel without ample time to review the materials and prepare for trial. And there is no requirement for certification that show the parties have exchanged the necessary materials. While some jurisdictions have voluntarily adopted more expansive discovery practices, the lack of statewide standards means too many Texans are getting less than the fairness the deserve.
The lack of strong discovery laws is part of what generates expensive, time consuming mistakes that seem to soak up so much of the justice system's energy and focus. Colfax and the Justice Project have done a mitzvah to draw attention to the problem.

Here's the pdf of the report, about which I may have more to say when I've had a chance to read the whole thing. UPDATE: See a related post from I Was The State.


Anonymous said...

Mr. Grits,

I have a question for you but I cannot locate your email address. Professor Berman suggested that I email you so I hope it is not too much of an imposition. It is about an interview with a judge in Texas whom he said you might be able to provide some background on. If you could email me so I could provide the judge's name, I would greatly appreciate it. My email is danisek.1@osu.edu

Thanks, Ben

Anonymous said...

I support expanded and open discovery, but it needs to be reciprocal discovery as in federal court. The defense should be required to list witnesses in advance and give notice of whatever defense is to be relied upon. It ought to be fair to both sides.

Gritsforbreakfast said...

Ken, the reason for expanded discovery for the defense is to protect the constitutional rights of the defendant. I'm curious, what if any constitutional interest is served by making it reciprocal, or is that just a bargaining chip for prosecutors? I can see the harm to defendants' rights if DAs don't disclose, but what jurisprudential interest is served by forcing defendants to disclose more than at present? It seems to me the system sometimes concerns itself with "fairness" toward the defendant, but toward the prosecutor? I'm not sure I see it; the deck is already well-stacked in your favor.

Anonymous said...

How about the truth, a novel concept.

Anonymous said...

How about the 5th amendment right to remain silent and not incriminate yourself? That applies to Ds, but not prosecutors.

Anonymous said...

The reason for reciprocal discovery is to prevent trial by ambush by either side. There is no self-incrimination issue involved in revealing what witnesses you intend to put on the witness stand.

What is wrong with knowing in advance that a defendant intends to present an alibi defense? The idea is to allow both sides to be prepared for trial and to allow a jury to get the true picture of the case so a proper decision is made.

Stangely enough, the State is entitled to a fair trial just as the defense is. Expanded discovery is about more than just protecting the defendant's rights; the goal should be an accurate verdict based on what really happened, instead of one side being in the dark.

Gritsforbreakfast said...

Fair enough, Ken, though right now of course it the defense that suffers trial by ambush.

I think the defense lawyers' response to your question, "What is wrong with knowing in advance that a defendant intends to present an alibi defense?", would be "What part of the 'right to remain silent' don't you understand?" If the 5th amendment sanctions defendant silence, how does that jibe with required disclosure?

I know they do it in federal court, but the federal courts have also defenestrated huge chunks of the bill of rights in criminal cases, so that's not entirely convincing to me. You say the goal should be "truth," but I don't think that's entirely right - the goal for discovery laws IMO should be balancing the search for "truth" with the limits placed upon the state in the Constitution.

I actually don't know what is the right balance to strike. I think Judge Criss' discovery order isn't an unreasonable approach, but it wouldn't give the prosecution defense theories like you want, and I have a gut sense - IANAL, so more a feeling than an argument - that to do so crosses a line that shouldn't be crossed. best,