Discovery in Criminal Cases

When you are charged with a crime, you are owed certain evidence, but that doesn’t mean it all gets handed over. The Michael Morton Act was passed in 2013 so that prosecutors would not withhold any evidence in their possession. The reason for the legislation should be obvious. Texas does not want to see an innocent man go to jail because prosecutors withhold key evidence. This happened to Michael Morton when he was wrongfully convicted of killing his wife. The real killer was finally prosecuted years later based on DNA evidence.


But what does all this mean for you? Well, the prosecutor should automatically hand over evidence in their possession. In practical terms, this means the Offense report, dash cam footage, body cam footage. Sometimes they will not turn it over in a timely manner and you can file a motion to compel discovery so that the judge orders the prosecutor to go ahead and do so.


For items not in the prosecutor’s possession, you can request the court to issue a subpoena duces tecum. This works like a regular subpoena in that it can force a person to appear in court. The difference is that they are also required to bring certain records with them. To issue a valid subpoena duces tecum, you must merely show that the evidence you are seeking is relevant to the case. If the party does not wish to turn the items over, they can contest the subpoena at a hearing, and the judge will decide if they must turn the items over.


There are other forms of informal discovery. Sometimes it is necessary to hire a private investigator to find the evidence for you. Other times, it is a good idea to hire an expert who can examine records or data and give an opinion that is helpful for understanding.


No two cases are alike, but the discovery process is always a crucial step in building a case. For this reason, it is always a good idea to hire an attorney as early as possible. For criminal representation in Travis, Williamson and surrounding counties, call Rob Chesnutt. 512-677-5003


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