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Discovery in Texas Criminal Cases- Open vs. Closed File Policy

In Texas defendants have very little right to learn about the evidence against them. For example, Texas law does not require the State turn over the police/arrest reports to the defendant. Those facing criminal charges in Texas have less discovery rights than litigants in a car wreck or divorce. If you really wanted to crack down on wrongful convictions, discovery would be the first area to start. Defense attorneys must hope that the State will agree to voluntarily turn over such material.


Open/Closed File Polices

The good news is that most counties I work in have open file policies in which the defense attorney can get a copy of the State’s file. Only one county has a strict closed file policy.

What is a closed file policy? Basically, the defendant/defense attorney are not given access to the evidence (police reports etc) in the State’s possession. There are some exceptions- some counties will turn over certain materials (warrants/police videos) and not others.

Why would the State want to hide evidence from the defense?

I can’t think of any legitimate reason for a secret evidence closed file system. In my experience such policies are motivated by animosity towards the defendants and defense bar. Seeking convictions rather than justice.

Beyond being inconvenient to the defense attorney, closed file policies greatly increase the odds of an innocent defendant pleading guilty. There is an inherent imbalance of bargaining power in plea bargains. Now add a lack of information to the mix and the odds that an innocent person takes a “great” plea bargain offer only increase. Closed file policies also waste court time with discovery/pre trial hearings that would not otherwise be necessary.

In sum, Texas has outdated and dangerous criminal discovery laws. If you are tired of seeing innocent Texans convicted ask your state representative to support greater discovery in Texas criminal cases. We can turn the tide on Texas’ wrongful conviction epidemic only by allowing defendants access to the evidence against them.

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