1. Rules of Discovery and Privileged Communications Court Systems and Practices

2. Copyright © Texas Education Agency 2011. All rights reserved. Images and other multimedia content used with permission. 2 Copyright and Terms of Service Copyright © Texas Education Agency, 2011. These materials are copyrighted © and trademarked ™ as the property of the Texas Education Agency (TEA) and may not be reproduced without the express written permission of TEA, except under the following conditions: 1) Texas public school districts, charter schools, and Education Service Centers may reproduce and use copies of the Materials and Related Materials for the districts’ and schools’ educational use without obtaining permission from TEA. 2) Residents of the state of Texas may reproduce and use copies of the Materials and Related Materials for individual personal use only, without obtaining written permission of TEA. 3) Any portion reproduced must be reproduced in its entirety and remain unedited, unaltered and unchanged in any way. 4) No monetary charge can be made for the reproduced materials or any document containing them; however, a reasonable charge to cover only the cost of reproduction and distribution may be charged. Private entities or persons located in Texas that are not Texas public school districts, Texas Education Service Centers, or Texas charter schools or any entity, whether public or private, educational or non-educational, located outside the state of Texas MUST obtain written approval from TEA and will be required to enter into a license agreement that may involve the payment of a licensing fee or a royalty. Contact TEA Copyrights with any questions you may have.TEA Copyrights

3. Copyright © Texas Education Agency 2011. All rights reserved. Images and other multimedia content used with permission. Discovery The process of exchanging information between the prosecution and defense 3

4. Copyright © Texas Education Agency 2011. All rights reserved. Images and other multimedia content used with permission. Discovery (continued) This allows defendants to know exactly what will be used against them in trial and prevents surprises to the government at trial 4

5. Copyright © Texas Education Agency 2011. All rights reserved. Images and other multimedia content used with permission. The following are the federal rules and constitutional requirements for discovery. 5

6. Copyright © Texas Education Agency 2011. All rights reserved. Images and other multimedia content used with permission. Bill of Particulars A detailed, formal, written statement of charges or claims by a plaintiff or the prosecutor, given upon the defendant’s formal request to the court for more detailed information This is intended to provide a defendant with details about the charges that are necessary for preparation for trial 6

7. Copyright © Texas Education Agency 2011. All rights reserved. Images and other multimedia content used with permission. Statements of the Defendant Upon request, the government must allow the defendant to inspect, copy, or photograph all prior relevant written and recorded statements made by the defendant 7

8. Copyright © Texas Education Agency 2011. All rights reserved. Images and other multimedia content used with permission. Statements of the Defendant (continued) This includes – Statements the defendant made to the grand jury – Oral evidence that the police may testify about concerning what the defendant said Only statements that the prosecution intends to use at trial are discoverable 8

9. Copyright © Texas Education Agency 2011. All rights reserved. Images and other multimedia content used with permission. Criminal Record of the Defendant Prosecutors must furnish a copy of the defendant’s criminal record 9

10. Copyright © Texas Education Agency 2011. All rights reserved. Images and other multimedia content used with permission. Documents and Tangible Objects Defendants are entitled to inspect and copy photographs, books, tangible objects, papers, buildings, and places of the government if The item is material to preparation for the defendant’s defense The item is going to be used by the government at the trial The item was obtained from, or belongs to, the defendant 10

11. Copyright © Texas Education Agency 2011. All rights reserved. Images and other multimedia content used with permission. Documents and Tangible Objects (continued) Defendants must allow the government to inspect their belongings only if used at trial 11

12. Copyright © Texas Education Agency 2011. All rights reserved. Images and other multimedia content used with permission. Scientific Reports and Tests All scientific reports and tests in the possession of the government must be turned over to the defendant if requested 12

13. Copyright © Texas Education Agency 2011. All rights reserved. Images and other multimedia content used with permission. Scientific Reports and Tests (continued) This includes – Conclusions of mental examinations of defendant – Autopsy reports – Drug tests – Fingerprint analysis – Blood tests – DNA tests – Ballistic tests – Other related examinations 13

14. Copyright © Texas Education Agency 2011. All rights reserved. Images and other multimedia content used with permission. Statements of Witnesses/ Jencks Act A defendant can review a prior written or recorded statement after the witness has testified This allows the defendant to see if the witness’ testimony is inconsistent with what they told police before the trial 14

15. Copyright © Texas Education Agency 2011. All rights reserved. Images and other multimedia content used with permission. Deposition A deposition is oral testimony given under oath, not in court Depositions are frequently given in civil cases What was said in the deposition can be used in court when there are “exceptional circumstances” – For example, if a person who gave the deposition was unable to testify at the trial 15

16. Copyright © Texas Education Agency 2011. All rights reserved. Images and other multimedia content used with permission. Brady Doctrine Exculpatory evidence of the defendant must be provided by the prosecution Exculpatory evidence tends to prove a defendant’s innocence – This could be in the form of information that comes up in another trial where someone admits they committed the crime the defendant is charged with 16

17. Copyright © Texas Education Agency 2011. All rights reserved. Images and other multimedia content used with permission. Alibis An alibis is a defendant’s account of what they were doing when the crime they are charged with occurred to show that they did not commit the crime The defense has to give prior notice of the defendant’s alibi so the prosecution can investigate its legitimacy and any witnesses related to it 17

18. Copyright © Texas Education Agency 2011. All rights reserved. Images and other multimedia content used with permission. Fingerprints, Handwriting, Photographs and the Like Fingerprinting and photographing the defendant can be constitutionally required in all felony cases The defendant can be ordered to give examples of handwriting, blood samples, and the like 18

19. Copyright © Texas Education Agency 2011. All rights reserved. Images and other multimedia content used with permission. Privileged Communications Some communications between certain types of people are confidential and cannot be revealed in any court proceedings This includes relationships described in the following slides 19

20. Copyright © Texas Education Agency 2011. All rights reserved. Images and other multimedia content used with permission. Marital Privilege Communication between husband and wife is confidential The marriage must be valid There is an exception to this privilege if one commits a crime against his or her spouse 20

21. Copyright © Texas Education Agency 2011. All rights reserved. Images and other multimedia content used with permission. Medical Privilege Communication between a doctor and patient are confidential This generally applies to all matters within the hospital Only the patient can break confidentiality The patient can lose this privilege if they “open the door” by introducing evidence concerning their physical or mental condition 21

22. Copyright © Texas Education Agency 2011. All rights reserved. Images and other multimedia content used with permission. Legal Privilege Whenever legal advice is sought from a lawyer, the communication is considered confidential and permanently protected from disclosure, unless the client consents to its disclosure Confidential communication includes words, conversations, or letters 22

23. Copyright © Texas Education Agency 2011. All rights reserved. Images and other multimedia content used with permission. Legal Privilege (continued) An exception to the legal privilege exist if the lawyer is a party to a crime or a participant in a conspiracy, or if the communication itself is criminal 23

24. Copyright © Texas Education Agency 2011. All rights reserved. Images and other multimedia content used with permission. Divinity Privilege Communication between a clergyman and an individual are protected if the he or she is consulting the clergyman professionally 24

25. Copyright © Texas Education Agency 2011. All rights reserved. Images and other multimedia content used with permission. Official Privilege The government has a privilege not to disclose confidential matters of state, particularly military secrets This privilege also applies to continuing investigations of a criminal nature 25

26. Copyright © Texas Education Agency 2011. All rights reserved. Images and other multimedia content used with permission. Exemptions to Freedom of Information Laws Freedom of information laws allow the public access to government records There are nine exemptions to the federal Freedom of Information Act If a request for information falls into one of the nine exemptions, the government may withhold disclosure 26

27. Copyright © Texas Education Agency 2011. All rights reserved. Images and other multimedia content used with permission. Exemptions to Freedom of Information Laws (continued) One of the exemptions provides that law enforcement records may be withheld if disclosure will – Interfere with enforcement proceedings – Deprive a person of a fair trial or an impartial adjudication – Constitute an unwarranted invasion of personal privacy 27

28. Copyright © Texas Education Agency 2011. All rights reserved. Images and other multimedia content used with permission. Exemptions to Freedom of Information Laws (continued) – Disclose the identity of a confidential source – Disclose investigative techniques and procedures – Endanger the life or physical safety of law enforcement personnel 28

29. Copyright © Texas Education Agency 2011. All rights reserved. Images and other multimedia content used with permission. Resources 0766818314, Criminal Law and Procedure (5 th Edition) by Daniel E. Hall, J.D., Ed.D. 0821107321, Introduction to Criminal Evidence and Court Procedure (3 rd Edition) by Julian R. Hanley, Wayne W. Schmidt, and Larry D. Nichols 29