Posted on 8/15/16

Discovery in civil suits is broad. The Rules of Civil Procedure state that parties may discover anything that is relevant and unprivileged. As a result, parties are consistently required to produce evidence against themselves, provided that the damaging evidence is within the bounds of a relevant discovery request. The result is that by the close of discovery each party obtains exhaustive amounts of information from the other party. Each side then has the opportunity to analyze and determine the legal and factual theories proposed by the other party. Consequently, each party’s evidentiary strengths and weaknesses are theoretically unsurprising to the other.

Criminal discovery, in pronounced contrast, is more restricted. The Constitution affords criminal defendants several protections, including the right against self-incrimination and the right to confront witnesses. Because of these constitutional guarantees, criminal discovery tends to be asymmetrical. There are cases where courts require the prosecution to provide the defendant with all defensible and impeachment evidence in the government’s possession while the defendant has no such equivalent obligation due to the right against self-incrimination. Therefore, while the prosecution is frequently ignorant of the defense’s evidence, the defense likely has significant knowledge of the prosecution’s evidence.

Depositions During Discovery

The deposition aspect of criminal discovery is unlike civil discovery. For civil cases, both parties have the right to take depositions of people with information about the issues at stake. A deposition is an opportunity for both sides to question a person under oath in the presence of a court reporter. Through face-to-face questioning, both sides can learn how the person being deposed may later present at trial and how a jury will perceive the witness. As a consequence, each side will be able to plan for the examination or cross-examination accordingly.

For criminal cases, things are different. Article 39.02 of the Texas Code of  Criminal Procedure provides for deposing witnesses when “good reason exists for taking the deposition,” and requires the filing of “an affidavit stating the facts necessary to constitute a good reason for taking the witness’ deposition and an application to take the deposition.” The party seeking to depose must have both the affidavit and the application. Even so, a court has discretion whether it feels that a “good reason exists” for a deposition. Therefore, unlike a civil case where a deposition is a tool used for discovery, a criminal deposition is not guaranteed, so it is not viewed as an effective discovery tool.

If you are charged with a crime, contact the Dallas-area criminal defense firm of Christopher Abel. He has the knowledge and experience for operating the Texas criminal justice system. Call him today.

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