You might already be aware that when you are charged with a crime that the prosecution is supposed to turn over certain evidence to defense lawyers. But what evidence? How much, and when? What does it mean for your case?
Here’s what you need to know.
The prosecution must, upon a timely request from our defense lawyer, produce and permit inspection and electronic duplication, copying, or photographing of the following:
- Offense reports
- Designated documents
- Written or recorded statements of defendant or witnesses, including witness statements of law enforcement officers but not including the work product of counsel for the state in the case and their investigators
- Designated books, accounts, letters, photographs, tangible evidence
- All exculpatory evidence
You as the defendant are only allowed to have certain information after addresses, names, telephone numbers, and DoBs have been redacted, but your lawyer can see all of it.
Your attorney must ask for this information. The prosecution will not volunteer it. Once your attorney does, the prosecution is supposed to turn it over to you as quickly as possible.
The state must disclose the existence of additional evidence as it is found to give the defendant the chance to ask for it.
As your defense lawyers, we ask for this evidence as quickly as possible.
What happens if prosecutors do not disclose evidence?
Your defense lawyer may object to evidence which was not properly disclosed.
In the 2021 case Watkins vs. The State of Texas, the Court of Criminal Appeals agreed that 34 pieces of undisclosed evidence were inadmissible.
The failure to disclose evidence may also be brought up on appeal. For example, a Brady Violation, based on a 1963 Supreme Court ruling in Brady v. Maryland, is a violation wherein prosecution fails to turn over exculpatory evidence.
A Brady violation can be used to launch and win an appeal.
In addition, prosecutors who fail to disclose or who withhold evidence upon a discovery request can be disbarred. This consequence is relatively rare, which leads some prosecutors to try withholding evidence anyway. Nevertheless, the Texas State Bar held that a “prosecutor’s ethical duty to disclose favorable information and evidence to the defense—pursuant to Texas Disciplinary Rules of Professional Conduct 3.09(d) and 3.04(a)—is broader than the prosecutor’s legal, constitutional duty of disclosure imposed by Brady v. Maryland and its progeny. That’s because the ethical duty to disclose allows a prosecutor no discretion to withhold favorable information or evidence because he subjectively considers it either immaterial or inadmissible.”
Why Disclosure Matters
Disclosure and discovery let us make accurate decisions about your case. It suggests avenues we can pursue to conduct our own investigations into the existence of exculpatory evidence. It gives us information on whether we should help you fight the case all the way to trial or suggest that you take a plea bargain.
Make sure you work with defense lawyers who pursue every scrap of evidence. Contact us to get help with your criminal case today.
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