Trial by Ambush

In his third installment on great lawyering, John Day (Day on Torts Blog) discussed the importance of having a command of the rules of procedure and evidence. John pointed out that "truly great trial lawyers learn the rules and use them both as a sword and a shield." Well, I couldn't agree more. I've had success in many trials because I knew the rules of evidence and procedure better than my opponent.

But something else John mentioned in his post interested me:

The adoption and expansion of the discovery section in the modern-day rules of civil procedure was intended to reduce the number of trials by providing a mechanism for the flow of information between parties to litigation. The idea was that if one party to a dispute learned the opposing party’s view of the facts and law more cases would be dismissed without the expense of trial. It worked. The “vanishing civil jury trial” is now a reality. The fact of the matter is that over 98% of all cases are settled before trial and even the cases that go to trial are subject to the rules of civil procedure.

More criminal cases in Texas could be settled favorably if the discovery rules were more advantageous to the accused. However, the rules regarding discovery in state criminal cases are very limited and heavily favor the prosecution. The state legislature made sure criminal trials are trials by ambush.

In Brazos County the felony court judges created a "standard" discovery order which requires the state to reveal only a limited amount of what they have in their file. They must give the defense access to physical evidence, statements of the accused, photographs, and the like. However, no police reports. No witness statements. Interestingly, the state is never required to reveal who their witnesses are, save experts, until just before the jury is selected. Granted, the order requires the prosecution to provide copies of lab results and other technical information. However, the lack of witness names and statements create a hindrance to proper case investigation by the defense.

Fortunately, much discovery is handled informally with prosecutors. The good ones let the defense lawyer know what they have, for the most part. They allow the lawyer to review reports and witness statements. But remember, they are not required by law to do so. Unlike the civil lawyers John Day describes in his post. The insecure prosecutors? Well, they keep their files "closed" and only dole out information to the defense when it seems to suit them. What are they afraid of, anyway?

It seems fair to give the defense a chance to interview state's witnesses before trial. The witness are the folks most likely to incriminate our clients. Why not reveal their names and addresses prior to trial and give the defense a chance to question them?

If criminal cases had a flow of information like John Day described in civil cases, the court's dockets might be much less congested with criminal matters. The playing field would be leveled. And the "vanishing trial by ambush" could become a reality.