1. Sadi R. Antonmattei-Goitia Sullo & Sullo, LLP February 16, 2019
Criminal Discovery Requests in a Nutshell 13th Annual Rene Gonzalez Practical Skills Seminar
Sadi R. Antonmattei-Goitia
Sullo & Sullo, LLP
February 16, 2019

2. Due Process of Law
“… nor shall any sate deprive any person of life, liberty, or property, without due process of law…”
- Amendment XIV, Sec. 1, US Constitution

3. Due Process of Law
“No citizen of this State shall be deprived of life, liberty, property, privileges or immunities, or in any manner disfranchised, except by the due course of the law of the land.”
- Article 1, Sec. 19, Texas Constitution

4. Michael Morton Act What is it?
Senate Bill 1611 enacted on May 16, and made applicable to all offenses after January 1, 2014
Codified at Tex. Code Crim. Proc. Art

5. Michael Morton Act What does it cover?
Production, Inspection, Electronic Duplication, Copying, and Photographing of:
Offense Reports;
Documents, papers, written or recorded statements of Defendant or a witness, including witness statements of law enforcement officers; and
Books, accounts, letters, photographs or objects or other tangible things.
…that constitute or contain evidence MATERIAL to any matter involved in the action and
…are in the possession, custody, or control of the State or any person under contract with the State

6. Michael Morton Act What is MATERIAL?
The phrase “material to any matter involved in the action” pre- dates MMA
Material is evidence whose disclosure would have affected the result of the proceedings
The standard is “reasonable probability” = more than a possibility
Exculpatory evidence
Brady v. Maryland, 373 U.S. 83 (1963)
Thomas v. State, 841 S.W. 2d 399 (Tex. Crim. App. 1992)
MMA 39.14(h)
But MMA is wider in scope than Brady, and it covers ANY evidence material to the action and regardless whether its intended to be used for the guilt or the punishment phase

7. Michael Morton Act What it DOES NOT allow?
Access to:
work product of counsel for the State in the case and their investigators or their notes and reports; or
written communications between the State and an agent, representative, or employee of the State

8. Michael Morton Act Trigger and Time – 39.14(a)
Upon request…
As soon as practicable…

9. Michael Morton Act Practical Issues
A request under MMA is made to the State. A motion for discovery that is filed but not ruled upon is not a request to the State under MMA. Majors v. State, 554 S.W. 3d 802, 807 (Tex. App.--Waco 2018)
A request under MMA should designate with reasonable detail the materials requested. Hinojosa v. State, 554 S.W. 3d 795, 797 (Tex. App.--Waco 2018)
If no request is made to the State under these standards, some courts, including the 14th, have held that the State’s obligations will be reduced to its duty to disclose exculpatory information under MMA 39.14(h) / Brady. Glover v. State, 496 S.W. 3d 812, 815 (Tex. App.--Hous. [14th Dist.] 2016)

10. Michael Morton Act Watch out for Prosecution tactics
Texas Center for Legal Ethics Opinion 646
Prosecutors have an ethical duty to comply with MMA disclosures;
They may not impose conditions to disclosure other than those specifically provided for by the MMA
Cannot demand or seek agreements with Defense Counsel to trigger discovery for a different time (e.g., after indictment or information)

11. Texas Disciplinary Rules of Professional Conduct Rule 3.09(d)
This Rule is also broader than Brady
Materiality is not required here either
Brady seeks to protect the integrity of the outcome of a trial without regard for any individual prosecutor’s culpability.
This rule and disciplinary proceedings serve the purpose of protecting the public in holding prosecutors accountable, in part because they are immune from lawsuit.

12. Texas Disciplinary Rules of Professional Conduct Rule 3.09(d)
This rule is violated by the Prosecution’s omission to follow Rule 3.04(a).
A “lawyer shall not unlawfully obstruct another party’s access to evidence; in anticipation of a dispute unlawfully alter, destroy or conceal a document or other material that a competent lawyer would believe has potential or actual evidentiary value; or counsel or assist another person to do any such act.” Rule
Rule 3.04(a) does not require intent to conceal or destroy evidence.

13. Michael Morton Act Defense Counsel as gatekeepers 39.14(f)
We may allow a client, witness or prospective witness to:
Review the materials disclosed, but not copy them
Can only receive a copy of client’s own statement
Certain information shall be redacted before client’s review, such as:
addresses, telephone numbers, driver's license number, social security numbers, dates of birth, and any other identifying numbers

14. Michael Morton Act BUT, 39.14(e) allows some disclosure
This, under two circumstances:
The information sought to be disclosed has already been made public; OR
The Court allows the disclosure after:
Notice and a Hearing;
Showing of good cause; AND
Having considered the security and privacy interests of any victim or witness