Reciprocal Discovery: Federal Rule 16 vs. Texas SB 91

Grits for Breakfast asked, in a comment, "Do you find reciprocal discovery a hindrance in your federal cases? If not, what’s the difference?"

Before I answer that, let me say that the federal criminal justice system should in no wise be considered a model for other jurisdictions. Federal court is a plea machine, in which all of the rules are geared toward pressuring factually innocent people to give up their Constitutional rights and plead guilty.

That said, reciprocal discovery has never been a hindrance to me in my federal cases. 

In federal court, reciprocal discovery is mandated by Federal Rule of Criminal Procedure 16(b):

(b) Defendant's Disclosure.

(1) Information Subject to Disclosure.

(A) Documents and Objects. If a defendant requests disclosure under Rule 16(a)(1)(E) and the government complies, then the defendant must permit the government, upon request, to inspect and to copy or photograph books, papers, documents, data, photographs, tangible objects, buildings or places, or copies or portions of any of these items if:

(i) the item is within the defendant's possession, custody, or control; and

(ii) the defendant intends to use the item in the defendant's case-in-chief at trial.

(B) Reports of Examinations and Tests. If a defendant requests disclosure under Rule Rule 16(a)(1)(F) and the government complies, the defendant must permit the government, upon request, to inspect and to copy or photograph the results or reports of any physical or mental examination and of any scientific test or experiment if:

(i) the item is within the defendant's possession, custody, or control; and

(ii) the defendant intends to use the item in the defendant's case-in-chief at trial, or intends to call the witness who prepared the report and the report relates to the witness's testimony.

(C) Expert Witnesses. The defendant must, at the government's request, give to the government a written summary of any testimony that the defendant intends to use under Rules 702, 703, or 705 of the Federal Rules of Evidence as evidence at trial, if—

(i) the defendant requests disclosure under subdivision (a)(1)(G) and the government complies; or

(ii) the defendant has given notice under Rule 12.2(b) of an intent to present expert testimony on the defendant's mental condition.

This summary must describe the witness's opinions, the bases and reasons for those opinions, and the witness's qualifications[.]

(2) Information Not Subject to Disclosure. Except for scientific or medical reports, Rule 16(b)(1) does not authorize discovery or inspection of:

(A) reports, memoranda, or other documents made by the defendant, or the defendant's attorney or agent, during the case's investigation or defense; or

(B) a statement made to the defendant, or the defendant's attorney or agent, by:

(i) the defendant;

(ii) a government or defense witness; or

(iii) a prospective government or defense witness.

Contrast that with the defense discovery that would be required under Texas SB 91:

Sec. 2. DISCLOSURE BY DEFENDANT

(a) As soon as practicable after receiving the initial disclosure under Section 1 from the attorney representing the state, the defendant shall disclose to the attorney representing the state and permit inspection, photocopying, and photographing of the following materials and information:

(1) any written or recorded statement by a witness, other than the defendant, that is related to the offense charged, if the defendant intends to call the witness at the trial;

(2) any record of a criminal conviction admissible for impeachment under Rule 609, Texas Rules of Evidence, of a witness, other than the defendant, the defendant intends to call at the trial, if that information is known to the defendant;

(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;

(4) the names and addresses of the witnesses called to present evidence under Rules 702, 703, and 705, Texas Rules of Evidence, and the names of all other witnesses, other than the defendant, the defendant intends to call at the trial; and

(5) any report produced by or for an expert witness the defendant intends to call at the trial.

(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 with the court and the attorney representing the state not later than the 30th day before the date the trial begins or as soon as practicable after the date the defendant receives a disclosure under Section 1 to which the defense is responsive, whichever is later. If the defendant intends to raise an alibi defense, the notice must include the place at which the defendant claims to have been at the time of the alleged offense and the names of the witnesses the defendant intends to use to establish the alibi. 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.

(c) After the filing of the indictment or information, the court may require the defendant to submit nontestimonial evidence to the state. This subsection does not limit any law enforcement agency or prosecutor's office from seeking or obtaining nontestimonial evidence to the extent permitted by law.

Sec. 3. EXCEPTIONS TO DISCLOSURE.

(a) Neither the attorney representing the state nor the defendant is required to disclose materials or information that is:

(1) recorded proceedings of a grand jury, except as provided by Rule 615, Texas Rules of Evidence;

(2) a work product other than an offense report by law enforcement personnel, including a report, memorandum, or other internal document of the attorney representing the state, the attorney representing the defendant, or an investigator or other agent of the attorney representing the state or the attorney representing the defendant that is made in connection with the investigation, prosecution, or defense of the case; or

(3) privileged under a rule of evidence, an express statutory provision, the Texas Constitution, or the United States Constitution.

(b) This article does not authorize disclosure of the name, address, or telephone number of a victim in violation of Chapter 57.

(c) A victim impact statement is subject to disclosure before the testimony of the victim is taken only if the court determines that the statement contains exculpatory material

So. Broadly, under the federal rule we have to let the government see our trial exhibits; we have to provide the results of any test, experiment, or examination that we intend to use in trial; we have to provide summaries of the findings of experts whom we plan to use at trial. (We also have to give notice of alibi (FRCP 12.1), insanity (FRCP 12.2), and public-authority (FRCP 12.13) defenses.) Other than scientific and medical reports, we do not have to reveal reports made by our agents, or statements made to our agents. There is no specific timeline—it is left to the judgment of the trial court. If we do not comply, the strongest medicine the rule provides is exclusion of the undisclosed evidence.

Under the proposed state rule we have to provide discovery "as soon as practicable" after receiving discovery.

We must give up any witness statements, witnesses' criminal histories (which, incidentally, the State can more easily obtain than we),  any evidence we intend to introduce at trial, the names of all of the witnesses (including experts) we intend to call at trial, and experts' reports.

We have to give notice of all defenses under Chapters 8 and 9 of the Texas Penal Code, including insanity and public authority, but also mistake of fact, duress, entrapment, and justification (including necessity, defense of self, defense of others, and protection of property, among others).

We can be required by the court to "submit nontestimonial evidence to the State"—in other words, the court can order defendants' property and papers seized without the probable cause required for a warrant.

We can be held in contempt for failing to comply. Our defenses can be barred if we violate the rule…but the State's case can't be dismissed if the State violates the rule.

I have italicized the things that SB 91 would mandate that are not true in federal court.

Defense lawyers have nasty little surprises—NLSes—for good reason. Those who favor SB 91 say, "we can't trust prosecutors to open their files to us otherwise." I say that we can't trust these same prosecutors not to intimidate witnesses (see Robb Fickman's account of witness intimidation here), much less not to woodshed the cops after we've laid our case bare, changing the official story so that our defenses are no more. ("Woodshedding" is the process of vigorously preparing a witness to testify, often by pointing out the weaknesses in the witness's story in light of the other evidence in the case.)

I am not opposed to compromise—I might give up a little so that defendants in counties with insecure DAs would suffer less their elected officials' attempts to feel more manly. But I don't think I exaggerate when I say that SB 91 in its current form would eviscerate the defense function in Texas. That any defense lawyer—even one suffering closed files in the county with the worst-endowed DA in Texas—would support this abomination is stunning to me.

About Mark Bennett

Mark Bennett got his letter of marque from the Supreme Court of Texas in May 1995. He is famous for having no sense of humor when it comes to totalitarianism.
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2 Responses to Reciprocal Discovery: Federal Rule 16 vs. Texas SB 91

  1. David Kiatta says:

    I noticed that the term “offense report” is not defined. Seems like the prosecutors that DOB want to disclose police notes can simply change the label. Also, allowing the prosecutor to decide what is material in Brady is just plain ridiculous.

  2. bryan simmons says:

    A bad bill. I hope that TCDLA’s lobbyist is advocating our position effectively. I think I’m going to go register as a lobbyist next session and make appearances when I feel like my organizational lobbyist is not meeting my expectations. How any lawyer who does criminal defense work would support that piece of shit bill is beyond me. The defense bar is going the way the old plaintiff’s/personal injury bar went–try to get along and hope the forces arrayed against us will be nice to us after they get this one last concession…

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