Defense disclosure the sticking point in 'reciprocal discovery' bill

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The Texas Tribune has a brief article describing legislation filed by state Sen. Rodney Ellis and Rep. Joe Moody related to "reciprocal discovery" in criminal cases, i.e., what evidence each side must give to the other before trial. Most court watchers agree the state has obligations to disclose potentially exculpatory evidence to the defense, though DAs differ from county to county have widely different definitions of what constitutes an "open file" policy.

In the past, the sticking point has been opposition by the defense bar to the "reciprocal" aspect of the bill, believing the practice abrogates the defendant's Fifth Amendment right against self incrimination. The burden of proof is on the state, the argument goes, and the defense is not obligated to put on witnesses or evidence at all. Meanwhile prosecutors have vehemently opposed codifying an "open-file" policy without the defense giving up something, too - hence "reciprocal discovery." The result has been a years-long stalemate. Here's a summary of what would be required of the defense under the filed bill (see the bill text):

• Written or recorded statements from witnesses the defense intends to call at trial,
• Any criminal record history of defense witnesses, if known,
• Any physical or documentary evidence the defense will present at trial, giving the state an opportunity for independent testing upon a showing of materiality by the state,
• Names of witnesses who will testify, addresses of some,
• Any report prepared by an expert witness who will testify,
• Prior notice of any alibi defense, including location and witnesses.

I'm not a lawyer and would be curious to hear the views of those who are, but the first three wouldn't particularly bother me. In most cases there likely will not be written or recorded statements of witnesses, only privileged attorneys' notes. This is not civil court and criminal defense lawyers do not generally depose witnesses. Criminal history information is already available to the state. And the physical evidence won't change just because it's disclosed. Similarly, I'm not particularly troubled by the suggestion that expert witness reports be shared before trial.

The fourth and sixth bullets, though, are where I've heard the most complaints from defense counsel when this bill came up in the past. Specifically, there's a concern that prosecutors or the police will engage in witness intimidation, threatening alibi witnesses or others scheduled to testify for the defense.

Another, broader complaint I've heard is that reciprocal discovery fails to take into account how trials actually work and the way defense strategies may change over their course.  E.g., imagine that a defendant knows of a witness whose testimony might help his or her case, but the initial defense strategy was simply to put on no witnesses and force the government to prove the elements. Then, during trial, the testimony of a prosecution witness turns out to be particularly devastating and the defense strategy changes. If they then call a witness they hadn't previously disclosed, will they get dinged over it by the courts? Will the witness be allowed? ¿Quien sabe?

Finally, the draft bill seemingly would require disclosure of witnesses that may be called to impeach government testimony, something even federal reciprocal discovery rules do not require. And even in the federal system, the distinction between impeachment evidence and an affirmative defense can be fuzzy, as in the case of an eyewitness called to rebut assertions by a state's witness. Some evidence may be used for either impeachment or non-impeachment purposes, and the distinction may not become clear until events at the trial begin to unfold.

For those reasons I tend to sympathize with defense critics of this bill, but also think that the need for open-file legislation is so great that, if it were me, I'd be willing to compromise. Making the defense disclose all witnesses, including impeachment, is way too broad. But having them disclose witnesses related to any affirmative defense, like an alibi or insanity, strikes me as a more reasonable, modest suggestion that would cause fewer practical problems. I don't know whether prosecutors would think that's enough (somehow I doubt it), but make me Philosopher King and that's how I'd split this particular baby.

We've been round and round these debates for too long. With all the focus on the issue following the Ken Anderson court of inquiry, the issue of open files is ripe for legislative action. It'd be a shame if Texas passed up the chance to require them by allowing the perfect to become the enemy of the good.

CORRECTION: This post incorrectly stated that the bill could require disclosure of impeachment witnesses, but in fact it only requires disclosure of witnesses the defense intends to call at trial. Grits regrets the error.