In State v. Banda, the Third District Court of Appeals (Austin) decided a case at the end of last month addressing an issue regarding a discovery violation by the State. The opinion addresses a key issue: what does a court do to remedy a discovery violation? Often, the primary consideration is not whether a violation occurred, but what a court should do about it.
Let’s review the law on discovery:
Brady v. Maryland – A prosecutor must disclose exculpatory evidence if it is material to either guilt or punishment, including impeachment. Brady v. Maryland, 373 U.S. 83 (1963); see also Thomas v. State, 841 S.W. 2d 399 (Tex. Crim. App. 1992) (describing Brady parameters in Texas).
Under the U.S. and Texas Constitutions, Brady breaks down to two duties related to pretrial disclosure of evidence by the State:
1) Disclose all favorable, material evidence in her possession.
2) Preserve and make available to the defendant any favorable, material physical evidence that the accused cannot otherwise obtain and that may be material to his defense.
See also CCP art. 39.14; Whitchurch v State, 650 S.W.2d 422, 425 (Tex. Crim. App. 1983) (no general defense right of discovery in Texas). BUT, see also Nielsen v. State, 836 S.W.2d 245 (Tex. App. – Texarkana 1992, pet. Ref’d) (The prosecution has a duty to disclose exculpatory evidence regardless of whether the defense files a discovery motion requesting the material. But even if the evidence is requested, the State does not have to disclose it unless it is also material to the defense.)
Though a prosecutor is not required to deliver his entire file to defense counsel, a prosecutor’s open file policy is generally sufficient to comply with the prosecutor’s Brady obligation. See United States v. Bagley, 473 U.S. 667, 676 (1985).
As stated above, often the primary consideration for the trial court is not whether a Brady violation occurred, but what a court should do about it. In Banda, the trial court decided that the State’s failure to comply with a court order on discovery was grounds for the court to dismiss the State’s case with prejudice to refile. The appellate court did not focus on whether a discovery violation had occurred – it technically had. The appellate court’s focus was on the fact that the trial court dismissed the State’s case without prejudice as a result of the violation. The Court found that absent constitutional or statutory authorization a trial court cannot dismiss a prosecution except on the motion of the prosecuting attorney and that the trial court does not have general authority to dismiss the indictment without prejudice in absence of the State’s consent. State v. Pambeck, 182 S.W.3d 365, 366, 370 ( Tex. Crim. App. 2005); State v. Williams, 938 S.W.2d 456, 459 (Tex. Crim. App. 1997). In Banda’s case there were no circumstances existing that would allow the court to make such a dismissal (even given the discovery order violation).
Ultimately, the Court held that “failure to comply with court orders on discovery may warrant suppression of the evidence in question, but discovery abuse is not recognized in the Texas Code of Criminal Procedure as a basis for dismissing the case with prejudice. See Tex. Code Crim. Proc. Ann. Art. 39.14 (West Supp. 2010)”. Id. at page 3.
Banda shows defense attorneys that discovery violations are extremely important and can be effective to win a case but only as long as the attack is not misplaced on attempting to get the court to dismiss the case.
