iscovery is the process by which the prosecution discloses evidence to the defense attorney and provides a basic foundation for accuracy and fairness. Discovery preserves the integrity of our adversarial criminal justice system by providing the defense with a meaningful opportunity to fully investigate and test the government’s evidence in preparation for trial. Unfortunately in Texas, the statutes and rules governing criminal discovery are so minimal that they fail to guarantee the opportunity for evidence to be fully investigated and meaningfully challenged.
While some jurisdictions have voluntarily adopted more expansive discovery practices, the lack of statewide standards means too many Texans are being tried without a fair opportunity to
review the evidence the state wants to use against them in court.
Unlike many other states, Texas has no statute that mandates automatic discovery of key case documents, such as police reports and witness statements. Instead, Texas requires the defense to file motions with the court requesting access to basic information. The defense must also demonstrate “good cause” in order to review such evidence. There are no clearly defined timelines for discovery to occur in advance of trial, often leaving defense counsel without adequate time to review the materials and prepare. While some jurisdictions have voluntarily adopted more expansive discovery practices, the lack of statewide standards means too many Texans are being tried without a fair opportunity to review the evidence the state wants to use against them in court.
The adoption of open-file discovery rules for criminal trials creates a more level playing field by ensuring that evidence can be meaningfully challenged and tested, and by removing much of the uncertainty inherent in the discretionary disclosure decisions prosecutors now make.
The record of wrongful convictions has demonstrated that exculpatory evidence can be withheld for years, even decades, while an innocent person sits in prison. Whether the state fails to disclose evidence inadvertently or intentionally, clear rules about what is subject to discovery—and clear consequences for failure to disclose discoverable information—minimize the risk of these mistakes.
Texas should implement the following changes:
- Require an open-file discovery policy to allow access to all relevant, unprivileged information in the possession, custody, or control of the state, subject to appropriate regulation by the courts.
- Require automatic disclosure of key documents such as police reports and witness statements prior to trial.
- Provide for adequate timelines to ensure access to information to allow investigation and review.
- Enforce remedies in cases where discoverable material is willfully suppressed, or when discovery obligations are not or only partially met.
