Texas Courts of Appeals
No. 05-15-01182-CR 8/22/17
Is a witness interview conducted by a prosecutor considered work product not subject to discovery?
No. Although an oral statement and the prosecutor’s notes are not “witness statements” under Rule of Evidence 615, the contents of the witness’s statement to the prosecutor are still subject to discovery when the discovery order specifically includes oral statements. Read opinion.
Keep an eye on this case. Witness statements obtained by a prosecutor—rather than police—exist in the uncharted boundaries of simple discovery material, attorney work product, and Brady. In this case, the discovery materials the defendant received painted one picture of the murder. At trial, a different picture of the same murder was painted by the prosecutor before the jury. Defense counsel highlighted the differences between the pretrial discovery and the trial testimony, and the prosecutor revealed that she conducted an interview of a witness that was the basis of the presentation of the case at trial. This statement was not provided to the defense in discovery because the prosecutor believed it to be attorney work product. The Court holds that the prosecutor’s decision to withhold the statement—even though the discovery order required production of all oral statements—was willful, even though the prosecutor believed the statement was attorney work product. The Court also indicates that the statements made by the witness were not work product because they were not the prosecutor’s “thoughts or impressions,” but rather “underlying factual information.” One takeaway may be that, if you have interviewed witnesses pre-trial but you believe they are protected under the work product doctrine, notify the defense that you have interviewed witnesses but are withholding those statements. That gives the defense the opportunity to seek a review by the trial court. Another takeaway may be that surprises to the defense may backfire.
United States District Court Western District of Texas, San Antonio Division
Civil No. SA-17-CV-404-OLG 8/30/17
The State is enjoined from implementing and enforcing the following provisions of SB 4:
1. The enforcement provision in Tex. Gov’t Code §752.053(b)(3) and any action (including but not limited to corrective, disciplinary, retaliatory, or punitive action) under §§752.05 5, 752.056, and 752.0565 arising therefrom;
2. The endorsement prohibition in Tex. Gov’t Code §752.053(a)(1), and any action (including but not limited to corrective, disciplinary, retaliatory, or punitive action) under §§752.055, 752.056, and 752.0565 arising therefrom;
3. The prohibition against adoption or enforcement of policies “that materially limit“ the enforcement of immigration laws in Tex. Gov’t Code §752.053(a)(1), and any action (including but not limited to corrective, disciplinary, retaliatory, or punitive action) under §§752.055, 752.056, and 752.0565 arising therefrom;
4. The prohibition against a pattern or practice that “materially limits“ the enforcement of immigration laws in Tex. Gov’t Code §752.053(a)(2), and any action (including but not limited to corrective, disciplinary, retaliatory, or punitive action) under §§752.055, 752.056, and 752.0565 arising therefrom;
5. The requirement that law enforcement agencies “comply with, honor, and fulfill” any immigration detainer request issued by United States Immigration and Customs Enforcement, Tex. Code Crim. Proc. Art. 2.25 1(a)(1), and any action (including but not limited to corrective, disciplinary, retaliatory, or punitive action) under Tex. Gov’t Code §§752.055, 752.056, and 752.0565; Tex. Loc. Gov’t Code §87.03 1(c); and Tex. Penal Code §39.07 arising therefrom.
The 1st, 9th, and 14th courts of appeals are currently closed following Hurricane Harvey. Information concerning these and other court closures is available here: http://www.txcourts.gov/court-closures-delays/.
The Court of Criminal Appeals has issued a joint order with the Supreme Court of Texas giving authorization to all courts in the state to consider disaster-caused delays as good cause for modifying or suspending all deadlines and procedures in any case. Read order here: http://www.txcourts.gov/media/1438759/179091.pdf.
With the flood waters cresting, Texas prosecutors from around the state have been asking for ways in which they can help the personnel of prosecutor offices affected by Hurricane Harvey. In response, the Foundation Board has created the Hurricane Harvey Relief Fund. You can donate here: http://www.ciclt.net/sn/events/e_signup.aspx?ClientCode=tdcaa&E_ID=500161&RegType=ATT. 100% of the donations to the fund will go directly to impacted prosecutor office personnel to assist them in their time of great need. Your generosity is much appreciated! For more information, call Rob Kepple at 512-474-2436.
Online registration for TDCAA’s popular Legislative Update series is now open! For more information or to register online, visit https://www.tdcaa.com/content/2017-tdcaa-legislative-updates.
TDCAA is now shipping its 2017 code books. For more information or to place an order, visit http://www.tdcaa.com/publications.