TERMS & CONDITIONS OF DISCOVERY OF THE DISTRICT ATTORNEY’S FILE IN
Policy
o It is the policy of the District Attorney's Office to conduct discovery as openly as possible, consistent with effective advocacy of the case, and in compliance with applicable law and the protection of the victim(s) and other concerned persons.
o This policy is intended to provide a framework of basic rules and guidelines for discovery, but still allow for maximum professional discretion for the prosecutor handling the case.
Philosophy
o Provide access to all portions of the District Attorney’s Office file, which are necessary to the proper evaluation and encourages swift disposition of the case.
Procedure
Exculpatory Evidence
o The District Attorney’s Office has a continuing obligation to reveal exculpatory evidence to the defense. This obligation overrides restrictions on disclosure contained within this policy. In the event that information or evidence that would otherwise be restricted from disclosure by this policy, or any law, contains exculpatory information, a prosecutor shall inform a supervisor prior to disclosure so that the proper method for disclosure may be determined.
Electronic Access
o The District Attorney’s Office of Rusk County will permit electronic access to criminal discovery by defense attorneys as a part of our open file policy. All criminal cases will be electronically accessed through a Net-Data program or other electronic format selected by the District Attorney’s Office (collectively referred to as the “program”). Items not available in electronic format, such as voluminous documents, audio, video, or physical evidence shall be obtained or viewed in the manner set forth herein.
o The attorney of record on a criminal case will have electronic access to the state’s file (excluding any attorney work product or other items discussed herein) through the program. This open file policy is offered strictly as a courtesy to defense counsel in order to satisfy the State’s duty to disclose any exculpatory or mitigating evidence and in anticipation of any standard discovery order pursuant the Texas Code of Criminal Procedure. The District Attorney’s Office reserves the right to terminate this manner of discovery, in whole or in part at any time without notice.
o Any disclosure of information through the program is strictly for discovery purposes in a criminal matter and does not constitute a public disclosure under any state or federal public information act, including, but not limited to, the Texas Public Information Act and the Freedom of Information Act.
o You are asked to carefully read the Terms and Conditions before contacting the District Attorney’s Office in order to register to use the program or access the file. By completing registration and receiving a password or by reviewing the file, you are indicating that you agree with all the terms and conditions of its use.
o The information contained within the program is CONFIDENTIAL and is disclosed to defense counsel for the sole purpose of preparing the Defendant’s case and with the expectation that any of the information garnered will not be used improperly. Defense counsel is strictly forbidden from:
1. Dissemination of information to any person for any purpose beyond what is necessary to effectively represent the defendant;
2. Utilizing this information to harass, threaten, or otherwise intimidate victims and/or witnesses; and
3. Providing printed copies of electronic discovery to any person outside of defense counsel’s employment.
o Defense counsel accepts sole responsibility to ensure that none of the information obtained from the program is used or disseminated improperly. Defense counsel accepts responsibility to advise his/her client(s), employees or agents of the limits and restrictions contained within this agreement, with respect to the use of the program and to ensure that all client(s), employees and agents abide by the terms and conditions contained herein.
o Any breach of this agreement may result in the immediate termination of the use of the program and in such an event discovery will be complied with by inspection rather than by reproduction in all future cases.
Policies and Procedure for Access
o Defense Counsel must have signed and submitted to the District Attorney’s Office the document entitled “Agreement Regarding Discovery Information.”
o Defense Counsel will be required to register with the District Attorney’s Office to use the program. The registration process requires the attorney’s bar number, e-mail address and a password.
o Use of the program enables the attorney of record to access his/her pending cases any time and from any computer with Internet access.
o Defense counsel will access the program by entering his/her e-mail address and a password. In the event counsel believes his/her password has been compromised, counsel must immediately:
1. Change the password
2. Notify the District Attorney’s Office of the compromised password as soon as possible.
o Access cannot be given to any case not yet filed with the District Attorney or to any case where the defendant has not been arrested. Access to a particular case will only be given once Counsel has notified the District Attorney’s Office that counsel is attorney of record by providing a letter of representation or if an Order of Court Appointed Counsel has been received. Only the attorney of record may access the program for a particular criminal case. Should counsel find that he/she does not have access to a particular criminal case where counsel is of record, counsel may request access by notifying the District Attorney’s Office. Requests made on weekends, holidays, or after 5:00 pm on regular business days will not be processed until the next business day. Counsel’s access to a case will remain open until disposition of the case or until counsel is no longer the attorney of record. In the event that defense counsel is inadvertently given access to a case for which he/she is not the attorney of record, counsel should refrain from accessing the case and immediately notify the District Attorney’s Office. It is defense counsel’s sole responsibility to:
1. Review his/her case discovery through the program;
2. Review the discovery prior to any court hearings, status conferences or trials for any additions or updated information;
3. Advise the District Attorney’s Office if counsel believes information is missing or incomplete;
4. Schedule an appointment to review any physical evidence;
5. Request a copy of any DVD/video/audio or photographs and provide media for copying; and
6. Advise the District Attorney’s office if there are any problems with access to the program.
o This agreement is not intended to relieve counsel for the Defendant of any duty he/she may have with respect to viewing the contents of the file. This agreement is meant to assist counsel for the Defendant with the discovery process. From time to time after the initial file is created in the District Attorney’s Office, additional information is obtained and added thereto. The District Attorney’s Office will attempt to supplement the original submission of information to counsel for the Defendant with any new information. However, the ultimate burden remains on counsel for the Defendant to insure he/she has all relevant information in the custody of the District Attorney’s Office.
Specific Restricted Items
o The following items shall not be revealed to the defense: (1) Grand jury testimony (except as ordered by the Court), (2) Victim impact statements, (3) psychological profiles (except that of the defendant), and (4) any information that would compromise the safety or well-being of victims or witnesses.
o As a general rule, the following items are not shown or given to the defense, although the contents or information may be orally summarized for them within the discretion of the prosecutor on the case: (1) attorney work product (including work product of our agents), (2) victim contact sheets, and (3) reports of expert witnesses. The documents can be shown to the defense for good reason.
o Defense Counsel will not be given a copy of the Defendant’s NCIC/TCIC report or forensic interviews. However, both will be available for viewing in the District Attorney’s Office.
o
NOTICE: Medical Records, EMS Records,
Child Protective Services Records, and any records relating to the
o In addition to the policies described above, Defense Counsel is able to access the District Attorney’s file in person during regular business hours Monday-Friday, 8:00 a.m. – 12:00 p.m. and 1:00 pm. – 5:00 p.m.
o Defense Counsel is encouraged to schedule an appointment with the prosecutor assigned to the case they wish to discuss by calling (936) 336-4609.
AGREEMENT REGARDING DISCOVERY INFORMATION
Counsel for the Defendant and the District Attorney’s Office for Rusk County, Texas agree to be bound by the document entitled TERMS & CONDITIONS OF DISCOVERY OF THE DISTRICT ATTORNEY’S FILE IN RUSK COUNTY, TEXAS (the “Policy”). By signing below counsel for the Defendant signifies that he/she has received, read and agrees to be bound to the policy. Counsel for the Defendant and State further agree to provide the information contained and described by Section 39.14 Code of Criminal Procedure to opposing counsel not later than the 20th day before trial begins. It is the duty of each side to amend and supplement any disclosure provided by Section 39.14.