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Texas Appleseed and the Texas Defender Serviced released a report on Wednesday that highlights the lack of uniformity among District Attorneys in Texas as to what material they disclose to defendants. While some DA’s offices practice open-file discovery (where defendants are allowed full access to the state’s evidence prior to trial), others provide little pre-trial discovery at all. The report suggests, therefore, that access to justice can depend, in part, on where the case is filed.

A troubling finding of the report was that some District Attorneys’ offices require defendants to waive certain rights in order to obtain open file discovery. For instance, the Victoria County DA’s office requires defendants to waive claims of inadequate notice, opportunity to review, and insufficient time under the Code of Criminal Procedure among other claims.

The report, Improving Discovery in Criminal Cases in Texas, comes at a time when Texas lawmakers are set to consider changes to Texas’ criminal discovery statute in light of numerous high-profile exonerations that would have been avoided if the prosecutors involved had practiced open-file discovery.

Anthony Graves, exonerated in 2010 after 18 years of incarceration (including on Death Row) is supporting efforts to reform Texas’s laws:

My experience is everyone’s worst nightmare. The State should do everything it can to make sure that what happened to me never happens to another person.

Currently, Texas prosecutors’ sole disclosure obligation is to provide defense attorneys with evidence that tends to negate the guilt or mitigate the punishment of the accused. To be entitled to further discovery, defense attorneys must file a motion with the court showing “good cause.”

In contrast to Texas’ laws, the report finds:

  • 84% of states do not require a court order before the prosecution must disclose;
  • 92% of states place an explicit continuing obligation to disclose on prosecutors and the defense;
  • 68% of states require pre-trial disclosure of expert reports;
  • 62% of states require pre-trial disclosure of witness statements;
  • 98% of states require reciprocal or mutual discovery from the defense; and
  • 62% of states require the pre-trial disclosure of the defendant’s full criminal history.

Download the report here.

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