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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In sum, Texas has outdated and dangerous criminal discovery laws.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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4 Responses to “Discovery in Texas Criminal Cases- Open vs. Closed File Policy”

  1. Down here in Harris County we have a somewhat “open file” policy. While we get to see everything in the file that’s not labeled “Work Product (which apparently is latin for Brady material)” we aren’t allowed to make copies.

    In Galveston County there is an open file policy and we are allowed to make photocopies of everything in the state’s file.

    Paul B. Kennedy
    Attorney at Law
    http://kennedy-law.biz

  2. JOE GRUBBS & his staff are impersonating Public Servants, b/c JUDGE DE FACTO GENE KNIZE’S Oath of Office in invalid, improper. & unauthenticated.

    The corruption, the dishonesty & the malicious abuse of simulated legal practice demonstrated by these evildoers, joint tort feasers, IMPOSTERS, IMPERSONATORS, USURPERS are a blight on the legal profession.

    The peoples’ right to a fair trial by an unbiased, neutral factfinder is impossible in the THE 40TH DISTRICT COURT, in ELLIS COUNTY as long as KNIZE is there.

    These men & their staffs are OUTLAWS & the injustices will be known by many!

    VISITING DE FACTO JUDGE RICHARD DEWEY DAVIS is also an OUTLAW as he has violated Govt. Code § 74.055. List of Retired & Former Judges Subject to Assignmen.

    There is much more!

    Anyone interested can write to me & I will share more of the fraud perpetrated by these CRIMINALS.

  3. The denial of discovery is a violation of Brady v. Maryland & the case MUST be dismissed, however b/c KNIZE & GRUBBS are guilty of RICO, Deceptive Trade & Fraudulent Business Practices, et.al. & the local ATTORNEYS are willing accomplices – We the People are harmed!

    Also the WAXAHACHIE POLICE DEPT. was NOT lawfully created therefore All WAXAHACHIE POLICE OFFICERS are guilty of impersonating Public Servants.

    Thsi means THE WACAHACHIE POLICE DPET. violates TPC 71.01 everyday!

    The truth will be known!

  4. THE ELLIS COUNTY LEGAL MAFIA intentionally, purposefully, knowingly, willfully violate;
    Texas Code of Criminal Procedure § 2.01 Duties of District Attorneys states in part,
    “… It shall be the primary duty of all prosecuting attorneys, including any special prosecutors, not to convict, but to see that justice is done. They shall not suppress facts or secrete witnesses capable of establishing the innocence of the accused.”