Continuing my discussion with “Interested Counsel” about the U.S. criminal justice system. He asks:

Another emotive issue over there appears to be disclosure. I had assumed this was similar to our own debate over when, in proceedings, full disclosure should take place. I infer from your (very good) podcast with the self-styled Charon QC that my assumption was wrong. That trials can take place without the Defendant knowing exactly what a state witness is being called to say shows the level of difference between our systems. Could we be moving in this direction? Hopefully my understanding is wrong.

Yes, trials can take place without the defendant knowing before trial exactly what the witnesses called by the State will say.

Suppose that you are defending a case in one of Texas’s hellish white-flight suburban backwaters — Williamson County, for example, or Collin County. The prosecutor has made the decision to prosecute your client based on police officers’ offense reports. You, however, have no right to read these reports and, in those counties, you will not read them before trial (they will be produced to you after the officers have testified). [Update: This may not be entirely accurate. Williamson County District Attorney John Bradley provides more information about his county’s discovery policy in criminal cases.]

The charging instrument, a public document, tells you who the complainant is, if there is a complainant, and you can try to talk to that person. The prosecutor may have filed a subpoena request naming at least some of the witnesses he plans to call at trial, but he has probably told “his” witnesses that they don’t have to talk to you, and told them so in terms that made it clear to them that he would prefer that they not do so.

Your client might remember who the police officers were, but the cops consider themselves part of the prosecution team, and they refuse to speak to you.

So you, trying to keep someone from going to prison, might go into the trial almost blind to the prosecutor’s case.

Fun, huh?

It’s not like this everywhere in the U.S. Even in Texas most chief prosecutors, unlike Williamson County’s John Bradley and Collin County’s John Roach,  have staffs of prosecutors whom they can trust to do justice even when the playing field is a little more level. Even Harris County’s Pat Lykos (God’s gift to blawgers) has enough confidence in her assistant DAs that, starting Monday, defense lawyers will get copies of offense reports. In the mythic land known as Florida, I’ve heard, lawyers can even take depositions in criminal cases.

We — lawyers on both sides — have the right to try to talk to any witness. But we never know what a witness is going to say on the witness stand unless we have interviewed her ourselves before the trial. As long as witnesses in criminal cases have the right not to talk to us, there will be that element of surprise to make things exciting.