In March 2011, the Court of Criminal Appeals denied the State mandamus relief and upheld a trial court’s order requiring the State to make a copy of a child victim’s videotaped forensic interview from the local Children’s Advocacy Center (CAC) for the defense. After a pointed dissent from Presiding Judge Keller, the 82nd Legislature acted quickly by amending both Article 39.15 of the Code of Criminal Procedure and §264.408 of the Family Code. Under both of the new provisions, the defense is allowed reasonable access to a videotaped CAC interview, but a trial court cannot order the State to provide the defense a copy of the video.
The old-fashioned way
Prior to recent judicial and legislative action, the procedure for protecting against the prospect of having to actually provide the defense a copy of a child victim’s CAC videotaped interview was often accomplished under the broad scope of §261.201 in conjunction with §264.408 of the Texas Family Code. Under these sections, the CAC video, as a part of an investigation of a report of child abuse or neglect, is “confidential [and] not subject to public release.” Statutorily, a court could order disclosure and release of items, including “videotapes,” only on motion of a party or upon the court’s own motion, notice of a hearing, a hearing, and upon specific court findings after a hearing.1
Besides §§261.201 and 264.408, the State could also rely on caselaw to protect against having to provide a copy of a child victim’s CAC videotaped statement to the defense. Specifically, in Dickens v. Court of Appeals, the Court of Criminal Appeals held that the trial court acted within its discretion by denying the defense a copy of a CAC video “since all three defense attorneys and the expert witness have already viewed the videotape” after the State provided the defense reasonable access to the video.2
As a practical matter, most prosecutors did exactly what the district attorney did in In re District Attorney’s Office: The prosecutor informed defense counsel of the CAC video and invited defense counsel and any defense expert to view the video at a mutually agreeable time at the prosecutor’s office. If, however, the defense demanded its own copy of the video, the prosecutor would object and cite §261.201 as the basis. It has been the authors’ experience that this system worked fairly and efficiently. Rarely would a defense attorney who had been given adequate access to view the CAC video demand his own copy.
The dispute arose out of a continuous sexual abuse of a child case. Despite the fact that the State made the interview video available for viewing by defense counsel, the defense sought to have the trial court order the State to provide the defense a copy of the video citing the standard discovery provision, Art. 39.14(a) of the Code of Criminal Procedure. Notwithstanding the State’s objections, the trial court granted the defense motion and required the State to make a copy of the CAC video and hand it over to the defense.
On writ of mandamus to the Court of Criminal Appeals, the court held that the defense was entitled to a copy of the video under Art. 39.14(a). Absent any caselaw or statutory analysis from competing statutes, the court reasoned that under Art. 39.14(a)’s plain terms, the State should be required to provide the defense a copy of the video and that doing such was “a task both easy and inexpensive” and “reasonable.”3
Presiding Judge Keller argued in her dissent that what may seem so “reasonable” in this case may not always be so.4 She explained that what may be only one video in this case could multiply into something burdensome, broad, and extensive in another case.5 Presiding Judge Keller also asserted that the scope of Art. 39.14 did not necessarily include the video statement because the child victim’s CAC interview could be considered a written witness statement—specifically exempt from discovery under Art. 39.14(a).6 Presiding Judge Keller also noted that this issue was unsettled.7
The legislative fix
Shortly after the Court of Criminal Appeals decided In re District Attorney’s Office, the legislature amended both the Code of Criminal Procedure and the Family Code to ensure the defense fair access to a CAC video, but at the same time, make clear that a court could not compel the State to copy or reproduce a child victim’s videotaped interview for the defense.
First, the Legislature amended a specific provision of the Code of Criminal Procedure. Article 39.15 is now entitled “Discovery Of Evidence Depicting Or Describing Abuse Of Or Sexual Conduct By Child Or Minor.” Prior to amendment, the statute dealt more specifically with discovery of evidence depicting child pornography. Subsection (c) of Article 39.15 states that:
A court shall deny any request by a defendant to copy, photograph, duplicate, or otherwise reproduce any property or material described by Subsection (a), provided the State makes the property or material reasonably available to the defendant.
After In re District Attorney’s Office, the legislature added Subsection (a)(3) to include video recordings of forensic interviews of children. Therefore, so long as the prosecutor makes the video reasonably available to the defense for viewing, Subsection (c)’s prohibition on defense requests for a copy of the video applies to CAC videos.
Second, the legislature amended §264.408 of the Texas Family Code. By adding Subsection (d-1), lawmakers made clear that while the videotaped interview was subject to production by making it reasonably available for defendants and their experts to view under Article 39.15’s discovery provisions, courts “shall deny any request by a defendant to copy, photograph, duplicate, or otherwise reproduce” a CAC video.
Given the strength of the “shalls” in these two new provisions, an old-fashioned hearing under §261.201 of the Family Code will most likely not be required. However, the careful prosecutor may want to demand such a hearing if the trial court seems inclined to read past the new laws protecting CAC videos. Certainly, mandamus relief would be appropriate—and the outcome of In re District Attorney would be different—if a trial court ordered the State to provide the defense a copy of a CAC video after these two amendments. As far as prosecutors voluntarily providing a copy of CAC videos to the defense, the legislature’s expectations are clear: The State must provide reasonable access to CAC videos, but otherwise, we should not, and most likely cannot, voluntarily provide a copy to the defense. Regardless, prosecutors should be mindful that the duty to reveal and provide Brady material supersedes code requirements.8
Back to business as usual
The legislature’s response to In re District Attorney’s Office really did not change the way most prosecutors and most defense attorneys already operated; the prosecutor notified defense counsel of the existence of the CAC video and then allowed defense counsel (and any designated defense experts) to view the video at a mutually agreeable time. The system worked well. Rarely did defense counsel demand, in addition to reasonable access to the video, a copy of the videotape. Following the legislative reaction to In re District Attorney’s Office, a trial court cannot grant a defendant’s demand for a copy of the videotape and the reasonable access, that was typically provided as a courtesy to defense counsel, is now expressly required. Most folks, on both sides of the docket, should be satisfied, and we are back to business as usual.
1 Tex. Fam. Code §261.201.
2 Dickens v. Ct. App. 2nd Sup. Jud. Dist., 727 S.W.2d 542, 553 (Tex. Crim. App. 1987); see also Coachman v. State, 692 S.W.2d 940, 945 (Tex. App.—Houston [1st Dist.] 1985, pet. ref’d).
3 In re Dist. Attorney’s Office, 2011 WL 1235027.
4 Id. (Keller, P.J., dissenting).
7 Id. (citing In re State ex. rel Rosenthal, No. 14–02–00306–CV, 2002 WL 730786 (Tex. App.—Houston [14th Dist.] Apr. 25, 2002, no pet.) (mem. op., not designated for publication).
8 See Edward L. Wilkinson, Legal Ethics & Texas Criminal Law, Prosecution, and Defense 275–76 (TDCAA 2006); see also Strickler v. Green, 527 U.S. 263 (1999).