The discovery process in Texas criminal law has evolved significantly over the years. Understanding these developments is essential if you're facing criminal charges. At one time, defendants had minimal access to the evidence against them. Today, however, the law provides broader discovery rights that can dramatically affect the outcome of a case.
If you’ve been charged with a crime, consult with a Killeen criminal defense attorney to protect your rights and fully utilize the discovery process in your defense.
How Discovery Has Changed in Texas
Historically, whether the defense received evidence was up to the discretion of the prosecution. Defense attorneys often learned about critical evidence only after a trial began. This imbalance created serious disadvantages for those accused of crimes.
That changed in 2013, when the Texas Code of Criminal Procedure was revised. Now, upon a timely request, the prosecution must provide access to relevant evidence.
Importantly, this access includes the ability to inspect, duplicate, and photograph the materials. In some cases involving sensitive materials, the defense may be allowed to review the evidence in a secured state facility but not retain a copy.
Under this new framework, defendants have much stronger rights related to evidence, which can play a critical role in building a strong defense.
What the Defense Has a Right to Discover
Once a proper discovery request is made, the state must disclose evidence as soon as practicable. This includes evidence held by the following parties:
Political subdivisions of the state
Agencies of the state
Contractors or agents working on the state’s behalf
The following types of evidence are generally discoverable:
Police reports and any other reports about the offense
Written and recorded statements from the defendant, witnesses, and law enforcement
Photos, audio, and video recordings
Tangible physical evidence
Medical and mental health records (when relevant)
Prior law enforcement reports related to the case or key individuals
However, prosecutors are not required to share their legal strategies or communications protected as attorney work product.
Having all the available evidence can prove instrumental in building your defense. Work with a skilled criminal defense attorney to make sure you have access to all of the relevant information in your case.
Legal Support for Discovery Rights
Texas law strongly supports a defendant’s right to discovery. These cases and statutes have strengthened the right to discovery over the years:
Brady v. Maryland:
In the landmark case Brady v. Maryland, the Supreme Court determined that the prosecution must disclose evidence favorable to the defense even if it is not specifically requested.
Texas Code of Criminal Procedure
The Texas Code of Criminal Procedure protects defendants seeking access to evidence by placing the following requirements on prosecutors:
Prosecutors must disclose any information that helps the defense, not just what is "material."
Prosecutors must disclose all evidence and information that negates the defendant's guilt or mitigates the offense.
The prosecution’s role is to pursue justice—not simply convictions—and that includes full and fair disclosure.
What Is "Material" Evidence?
Prior to 2021, Texas law did not clearly define "material" evidence. In Watkins v. State, the Texas Court of Criminal Appeals clarified that evidence is material if it has a logical connection to a consequential fact of the case. This broader understanding helps ensure more evidence is accessible to the defense.
Still, Texas prosecutors are required to go beyond disclosing just "material" evidence. They must turn over any evidence that could aid the defense or reduce the defendant's potential sentence.
Your Texas criminal defense attorney will ensure that you have access to all the material evidence in your case.
What Is Exculpatory Evidence?
Exculpatory evidence is any evidence that tends to show the defendant is not guilty. This includes:
Evidence supporting innocence or reducing charges
Inconsistencies in witness statements
Information that impeaches witness credibility
Exculpatory evidence subject to discovery can also include a prosecutor's notes. For example, if a prosecutor’s interview notes show new or contradictory information from a witness, that evidence must be disclosed.
Common Forms of Discovery
There are several tools the defense can use to obtain evidence and prepare for trial. Each form of discovery serves a unique purpose and allows the defense to gather crucial information that can shape legal strategy.
Requests for Admission
These written requests ask the prosecution to admit or deny specific facts, legal assertions, or the authenticity of documents. They can streamline the trial by eliminating uncontested issues and locking in the state's position on key matters.
Requests for Production or Inspection
These compel the prosecution to produce documents, recordings, photographs, or other tangible evidence. They may also include requests to inspect real property or obtain digital files, such as text messages, emails, or GPS records. These requests must specify a reasonable time and place for the evidence to be made available.
Interrogatories
These are formal sets of written questions submitted to the prosecution that must be answered under oath. Interrogatories can reveal the identities of witnesses, timelines, chain of custody details, and the prosecution's theory of the case. The responses help the defense identify gaps or inconsistencies in the state's evidence.
Depositions
These involve the sworn, out-of-court testimony of witnesses and are usually recorded via audio, video, or transcript. Depositions can be used to lock in testimony, explore the background or bias of a witness, and preserve statements in case a witness becomes unavailable for trial. They are particularly valuable when preparing cross-examination or identifying prior inconsistent statements.
Subpoenas
While not a form of discovery per se, subpoenas are often used in conjunction with discovery to compel third parties—such as hospitals, phone companies, or private individuals—to produce documents or appear for testimony.
These tools help your experienced criminal defense attorney build a comprehensive view of the evidence, challenge weak or unsubstantiated claims, and ensure that no critical information is withheld by the state.
What Evidence Is Typically Exchanged?
The evidence exchanged in discovery varies by case but often includes:
Police and investigative reports
Witness lists and recorded statements
Physical evidence and forensic reports
Drug testing, toxicology, and DNA results
Expert witness statements and credentials
Criminal records of key witnesses
If the prosecution fails to disclose required evidence, the court may exclude that evidence at trial or impose sanctions.
Why Discovery Matters
Many people mistakenly believe that prosecutors only bring charges when they are sure they can win. In reality, discovery often reveals weaknesses in the state’s case.
Your defense attorney uses discovery for the following purposes:
Examining the evidence the state plans to use
Identifying gaps or inconsistencies
Consulting with an attorney early in the process allows you to take full advantage of your discovery rights.
Speak With a Killeen Criminal Defense Lawyer Today
If you’re facing criminal charges, don’t navigate the discovery process alone. Attorney Brett H. Pritchard is a skilled Killeen criminal defense lawyer who understands how to use discovery to challenge the evidence and build a strong defense.
Contact the Law Office of Brett H. Pritchard today to protect your rights and prepare your defense with confidence. Fill out our online contact form or call us at (254) 781-4222 to schedule your FREE consultation.