Discovery in criminal cases in Texas has a tortured history. The State’s discovery statute, Article 39.14 of the Texas Code of Criminal Procedure, was enacted in 1965. As the Texas Court of Criminal Appeals (CCA) has often noted, the statute did not confer upon a criminal defendant the general right to discovery.
Disclosure was left up to the trial judge’s discretion, as evidenced by the CCA in 1980 in Quinones v. State. The CourtCourt reasoned that a finding of prejudice was critical in determining whether a failure to disclose violated due process under the Brady Rule. As stated by the Quinones Court:
“Nevertheless, appellant argues that he was prejudiced by the failure to discover the tape recordings because counsel for appellant claim that, had they known of the tapes, they would have accepted a prosecutorial offer to plead guilty in exchange for a recommended life sentence, an offer which had been withdrawn by the time counsel learned about the existence of the tape. This claim of prejudice does not make the claim ‘material,‘…”
Defense attorneys were often shooting from the hip, learning about evidence during the trial, and left to the good intentions and ethical judgment of prosecutors who notoriously refused to disclose evidence.
Twelve years later, the CCA instructed in Thomas v. State that “When unsure of whether to disclose the evidence, the prosecutor should submit the evidence to the trial judge for his consideration.”
Under this statutory and constitutional framework, thousands of Texas criminal defendants—hundreds of whom were later exonerated and declared actually innocent—were wrongfully convicted and sent to prison, where they languished for decades. One of those inmates was Michael Morton, who was wrongfully convicted, based upon prosecutorial misconduct, for the 1987 murder of his wife in Williamson County before the CCA declared him “actually innocent” in 2011.
The New Landscape of The Michael Morton Act
In 2013, the Michael Morton Act (MMA) amended Art. 39.14 and dramatically altered the discovery landscape in criminal cases in Texas.
Under Art. 39.14,…” as soon as practicable after receiving a timely request from the defendant the State shall produce and permit the inspection and the electronic duplication, copying, and photographing, by or on behalf of the defendant, of any offense reports, any designated documents, papers, written or recorded statements of the defendant or a witness, including witness statements of law enforcement officers but not including the work product of counsel for the State in the case and their investigators and their notes or report, or any designated books, accounts, letters, photographs, or objects or other tangible things not otherwise privileged that constitute or contain evidence material to any matter involved in the action and that are in the possession, custody, or control of the State or any person under contract with the State.”
Under the MMA framework, a criminal defendant can and should file a request for discovery in a timely manner, to which the State must respond to the requests made therein “as soon as practicable.” The State under the MMA is defined as:
The discovery notice should seek but not be limited to the following:
The State is not required to produce any work-product privileged documents prepared by an attorney for the State or any communications between the State or anyone who works for the State. This information is considered part of the State’s legal strategy or mental impressions and is not subject to disclosure. As for requests to review extremely sensitive material spelled out in Arts. 39.15 and Art. 39.151, defense counsel cannot obtain a copy this material but must review them in a secure facility designated by the State.
The Impact of The Morton Act Provisions
The 2013 MMA amendment created three new significant provisions allowing discovery for:
The State may fulfill discovery of this material by giving defense counsel electronic copies of the documents or information described above.
In addition to the Michael Morton Act, at least four statutory and constitutional authorities demand full compliance with discovery provisions by Texas prosecutors. They are:
How Watkins V. State Changed the Discovery in Texas
A key flaw in the Michael Morton Act was its failure to define what constitutes “material” evidence clearly. It would take the CCA eight years to do what the Legislature did not—define the word material as it relates to discovery in criminal cases in Texas.
Now, under Watkins v. State the word material, in addition to its ordinary meaning, means “evidence ‘having some logical connection to a fact of consequence.’ Whether the evidence is ‘material’ is therefore determined by evaluating its relation to a particular subject matter rather than its impact upon the overall determination of guilt or punishment in light of the evidence introduced at trial.”
Article 39.14(h) states, “Notwithstanding any other provision of this article, the state shall disclose to the defendant any exculpatory, impeachment, or mitigating document, item, or information in the possession, custody, or control of the state that tends to negate the guilt of the defendant or would tend to reduce the punishment for the offense charged.”
Discovery Not Limited to Material
In an expansive way, the CCA concluded that discovery under Michale Morton is broader than required under Brady v. Maryland:
“On the whole, the statutory changes broaden criminal discovery for defendants, making disclosure the rule and non-disclosure the exception. Significantly, Article 39.14(h) places upon the State a free-standing duty to disclose all ‘exculpatory, impeaching, and mitigating’ evidence to the defense that tends to negate guilt or reduce punishment. Our Legislature did not limit the applicability of Article 39.14(h) to ‘material’ evidence, so this duty to disclose is much broader than the prosecutor’s duty to disclose as a matter of due process under Brady vs. Maryland. This subsection blankets the exact type of exculpatory evidence at issue in the Michael Morton case while creating an independent and continuing duty for prosecutors to disclose evidence that may be favorable to the defense even if that evidence is not ‘material.’
“Also, the statute requires disclosure of evidence that merely ‘tends’ to negate guilt or mitigate punishment. This echoes the definition of evidentiary relevancy. Relevant evidence is any evidence that has any tendency to make the existence of any fact of consequence to the determination of the action more probable or less probable than it would be without the evidence. Evidence need not by itself prove or disprove a particular fact to be relevant; it is sufficient if the evidence provides a small nudge toward proving or disproving some fact of consequence. Under Article 39.14(h), the State has an affirmative duty to disclose any relevant evidence that tends to negate guilt or mitigate punishment regardless of whether the evidence is ‘material’ under Brady v. Maryland.
“Any evidence that does not fall under Article 39.14(h)—that is, any evidence that does not tend to negate guilt or mitigate punishment—must be disclosed upon request without any showing of ‘good cause’ or the need to secure a discretionary trial court order. Disclosure is mandatory and must occur ‘as soon as practicable’ The Legislature also added to the list of discoverable evidence in Article 39.14(a), as well as increased the number of people and entities whose records are subject to discovery With the exception of privileged evidence and evidence specifically covered by other statutory provisions, the only obstacle to disclosure of evidence not already covered by Article 39.14(h) is the lack of a specific request.”
Prosecutor’s Notes When Prepping Witness for Trial
Under the expansive disclosure doctrine spelled out by the CCA in Watkins and the Court’sCourt’s recent landmark decision in Heath v. State (a prosecutor is responsible for disclosure of Brady material in possession of law enforcement even if they are unaware of such evidence), a prosecutor’s interview notes conducted with witnesses when preparing for trial are subject to disclosure under Michael Morton when the notes contain new or additional details, inconsistent statements or statements that could be favorable to the defense.
Statements made by a prosecutor’s witness during the investigation or charging stages in a criminal case are often remarkably different, or at the very least significantly different, than those given during pretrial preparation interviews. Since the statements made in pretrial preparation may reveal the existence of Brady material or other evidence discoverable under Michael Morton, and since defense counsel does not have to show materiality under the Watkins doctrine, a prosecutor’s interview notes should be disclosed in response to a timely filed discovery notice. Thus, it should be best practice for prosecutors to interview witnesses only in the presence of an investigator, who can reduce such to writing and disclose when appropriate. This has long been the protocol for federal prosecutors.
The CCA in Watkins stated, “According to the plain text of Article 39.14, criminal defendants now have a general statutory right to discovery in Texas beyond the guarantee of due process.”
These prosecutorial interview notes should be part of the fair trade between the State and defense in a criminal case now envisioned under the Michael Morton Act.
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