(1) “Has the State’s statutory duty to disclose evidence ‘as soon as practicable’ been violated if the prosecutor fails to disclose an item of evidence the D.A.’s Office does not know exists but that has been in police custody for months?”
(2) “If so, does the trial court have authority to impose an exclusionary sanction when there has been no bad faith or demonstrable prejudice to the opposing party and the statute provides for no such sanction?”
A few days before Heath’s injury-to-a-child trial, the prosecutor was interviewing a witness and learned there had been a 911 call. It had not been mentioned in any police reports. The prosecutor retrieved the recording from police and disclosed it to the defense. During a pretrial hearing, the defense acknowledged there was no bad faith on the prosecutor’s part and expressed no desire for a continuance, saying he was ready with what he was given and that the remedy should be the exclusion of evidence. The trial court agreed, and the State appealed.
The court of appeals acknowledged that the previous requirements of “willfulness” or “bad faith” before excluding evidence due to a discovery violation did not apply the same way after the Michael Morton Act. But it held that something equivalent had occurred. It noted Tex. Code Crim. Proc. art. 39.14(a)’s requirement that the State provide the listed items “as soon as practicable” suggested a duty on the prosecutor to timely search out discoverable items in the State’s constructive possession or control and provide them to the defense. It held that waiting until a prosecutor prepares a case for trial is too late and that failing to even ask law enforcement about the existence of discoverable items meets the previous standard of a willful or bad faith violation. Excluding the evidence was thus within the trial court’s discretion.
The State argues that Art. 39.14(a) does not apply to items solely in the possession of law enforcement. The language of the statute requires the production of relevant items “in the possession, custody, or control of the state or any person under contract with the state.” And in the context of a discovery statute, “state” means Texas and its attorney, the prosecutor’s office. When “state” is used elsewhere in 39.14 (such as to refer to the entity who receives the defendant’s discovery request), it means the prosecutor, not a law enforcement agency. While Art. 39.14 used to apply to items in the possession “of the State or any of its agencies,” the Morton Act modified that language. It is not absurd that the Legislature would increase the number and kind of things that were discoverable but limit it to those items in the prosecuting attorney’s possession, custody, or ability to control.
The State also contends that even if Art. 39.14(a) includes law enforcement, exclusion is not an appropriate remedy. The previous basis for excluding evidence arose as enforcement for a violation of a trial court’s discovery order, which is no longer required under the statute. Any inherent power a court has to fashion an exclusionary sanction would require bad faith or prejudice to the opposing party, neither of which is present on this record.