When the government charges someone with a crime, the government is constitutionally and statutorily required to disclose to the defense information that is favorable to the defense. This includes information that indicates that the defendant did not commit the offense, and information that can be used to impeach any of the state's witnesses through cross examination. The law is clear that this information must be given to the defense regardless of whether the prosecutor believes that the evidence would ultimately be admissible at trial, or whether the prosecutor finds that evidence credible. The bottom line is that the defense should be able to determine how and whether to use this information. The Texas District and County Attorney's Association has even told its members, which includes the Harris County District Attorney's Office, “Just disclose it.”
Sadly, it has become an alarming trend in the Harris County District Attorney's Office for there to be a significant delay in turning over such information. Oftentimes this is not done out of malice, but instead is a byproduct of prosecutors with large caseloads who often do not start looking at the details of the case until right before trial, which is when they may discovery information that has not been provided to the defense. Lately, however, some prosecutors have started using delayed disclosure as a trial tactic. Indeed, we faced this in a recent case that we tried where the prosecutors were not prepared for trial and on the eve of trial they produced voluminous discovery, some of which they had in their office for over a year.
The Harris County District Attorney's Office spokesperson recently told the Houston Chronicle that “[t]he remedy for late disclosure is simple – more time.” This cavalier attitude toward the prosecutor's discovery obligations is what gave rise to the Michael Morton Act, which mandates that prosecutors deliver discovery to the defense “as soon as practicable.” When prosecutors delay the disclosure of evidence, they unfairly put the defense between a rock and a hard place. The defense is forced to either (1) proceed to trial without adequate time to prepare for the new evidence, or (2) ask for a continuance and delay their client's constitutional right to a trial.
It is also worth noting that in some cases, the prosecutors refuse to give the defense information that they are statutorily and constitutionally required to deliver unless the judge signs a protective order that has severe limitations on how the defense can use such information. This runs contrary to the long-held principles of American jurisprudence that court rooms are to be open to the public and that the public should be able to freely view the operations of its government except in very rare circumstances (such as national security).
One prosecutor recently told me, “what is the rush?” in response to my continued demands for full discovery. This is easy to say when you are not the one facing serious criminal charges that completely uproot your life, or when you are not the person sitting in jail awaiting your trial date. Recently a Harris County judge refused to accept the prosecutor's eight month delay in disclosing critical information regarding the disciplinary history of the officer who arrested the defendant who was facing trial. That judge sanctioned the Harris County District Attorney's Office for their conduct. This is a step in the right direction to show the Harris County District Attorney's Office administration that it needs to take its discovery obligations seriously, and not to use delay tactics to gain an unfair trial advantage.