Tarrant County Criminal District Attorney’s Office
Discovery Compliance Policy
Introduction
The United States Supreme Court has long held that evidence that could potentially assist in the defense
of an individual accused of a crime must be disclosed to the attorney representing that individual.
Failure to provide that information can result in the overturning of a conviction and for extreme
violations of the rule, prosecution of violators of that rule.
The duty to make disclosure rests primarily with the prosecuting attorneys, but the Supreme Court has
also held that information known to law enforcement agencies but never disclosed by those agencies to
the district attorney, must nevertheless be imputed to the prosecution.
Recently, because of a major violation of this Rule (commonly referred to as a “Brady” violation) in
Williamson County, the Texas legislature now requires even more. This new law is often referred to as
the “Michael Morton Act.” Because compliance with the Act is mandatory, it is important that your
Department make timely disclosure of all material information to the Office of the Tarrant County
Criminal District Attorney to allow us to determine whether disclosure is required to the defense.
One of the major areas of mitigating evidence concerns potential witness impeachment evidence –
things that can be used by the defense in an attempt to undermine the testimony of a witness. Given
that members of your department often testify in criminal cases as “fact” or “expert” witnesses, our
office must be informed of anything that could possibly constitute impeachment evidence.
The Specifics of the Law and our Duties
The Tarrant County Criminal District Attorney’s Office (CDA or Office) has an obligation to disclose to the
defense in a criminal case when an officer testifies who has certain criminal conduct or has conduct that
reflects negatively on his or her credibility. There may be law enforcement information concerning
individual officers about which we are not aware, but which we may have a duty to disclose in
connection with the cases we prosecute.
The United States Supreme Court has dictated that a prosecutor has an affirmative duty to turn over
material, exculpatory evidence. Brady v. Maryland, 373 U.S. 83, 87 (1963). Impeachment evidence
(evidence that attacks the credibility of a witness in a case) is included within the scope of the term
“exculpatory evidence.” United States v. Bagley, 473 U.S. 667, 676 (1985); Ex parte Kimes, 872 S.W.2d
700,702 (Tex. Crim. App. 1993). Evidence withheld by a prosecutor is “material” if there is a reasonable
probability that, had the evidence been disclosed to the defense, the outcome of the proceeding would
have been different, Kimes, 872 S.W.2d at 702, or when failure to disclose the evidence undermines
confidence in the outcome of the trial. Ex parte Miles, 359 S.W.3d 647, 666 (Tex. Crim. App. 2012).
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Thus, under Brady, a due process violation occurs if: (1) the prosecutor fails to disclose evidence; (2) the
evidence is favorable to the defendant; and (3) the evidence is material, such that there is a reasonable
probability that, had the evidence been disclosed to the defense, the outcome of the trial would have
been different, Thomas v. State, 841 S.W.2d 399, 404 (Tex. Crim. App. 1992), or confidence in the
outcome of the trial is undermined, Miles, 359 S.W.3d at 666. This obligation reaches to all members of
the “prosecution team” and police officers and prosecutors are partners on the prosecution team. Kyles
v. Whitley, 514 U.S. 419, 437 (1995).
The 2013 Michael Morton Act, which amended discovery provisions of Article 39.14 of the Code of
Criminal Procedure, also codified Brady-like obligations of prosecutors to disclose exculpatory or
impeachment evidence. TEX. CODE CRIM. PROC. art. 39.14 (h). With regard to exculpatory or
impeachment evidence, a prosecutor must disclose evidence that is in the possession, custody, or
control of the State and that tends to negate the defendant’s guilt. TEX. CODE CRIM. PROC. art. 39.14 (h).
Unlike Brady, however, Article 39.14 contains no materiality provision for disclosing exculpatory or
impeachment evidence. TEX. CODE CRIM. PROC. art. 39.14 (h).
Therefore, the critical concern is whether information about a particular officer’s conduct, personnel
history or from a personnel file might constitute exculpatory or impeachment evidence in a particular
criminal case. If so, it must be disclosed to us, so that we, in turn, may disclose it to the defense, if
appropriate. For example, under Rule 609(a) of the Texas Rules of Evidence, evidence that a witness has
been convicted of a crime is admissible for impeachment of that witness, in certain circumstances, if the
crime was a felony or involved moral turpitude, regardless of the punishment. TEX. R. EVID. 609(a).
Law Enforcement Obligation to Notify
The CDA needs to be advised of certain conduct that may be exculpatory and must be disclosed as
impeachment evidence to the defense in a case. The Criminal District Attorney will designate a person
or person to receive these notifications. Brady and TEX. CODE CRIM. PROC. art. 39.14 (h) impose an
ongoing obligation for the State to provide potential exculpatory evidence, so the CLEO must notify the
CDA when a future determination of conduct that is exculpatory is made.
The Chief Law Enforcement Officer (CLEO) should determine whether there are any such instances
about which the CDA should be made aware. In that regard, the CLEO should examine current and
future officers’ personnel files and current and future officers’ conduct and notify the Office as soon as
possible when an officer:
1) has a pending complaint or indictment for any crime other than traffic violations, or
2) has been convicted of any crime other than traffic violations, or
3) has a pending formal investigation or a sustained finding for any misrepresentation or failure
to disclose a material fact on the officer’s application, or
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4) has a pending formal investigation or a sustained finding of untruthfulness regarding material
facts in an official proceeding, or
5) has a pending formal investigation or a sustained finding involving violation of a defendant’s
constitutional rights, or
6) has a pending formal investigation or a sustained finding involving bias or prejudice to a class
or group of persons, or
7) has a pending formal investigation or a sustained finding involving improper use of force
against an individual.
In each instance, furnish each such officer’s name, identification number, and a description of the
finding and circumstances leading to the finding. If the CLEO is in doubt about whether the conduct
requires disclosure, the Chief is encouraged to report the matter to the Criminal District Attorney. The
Criminal District Attorney will rely on the due process provided by the professional police organization
to its officers through disciplinary proceedings and will not be re-litigating any of the findings. The
determination of what defines a pending formal investigation will be determined by the individual
agency consistent with that agencies individual rules and procedures.
CDA Response to Notification
The Criminal District Attorney will keep the provided officer names and information in two lists: a
Disclosure List and a Pending List. These lists will be provided to the law enforcement agencies. The
Pending List will contain information submitted about pending formal investigations about an officer. If
the investigation of an officer on the Pending List is sustained, the CLEO will notify the Office in the same
manner as reporting an officer to the Disclosure List and the officer will be added to the Disclosure List.
If the investigation is not sustained, the CLEO will notify the Office and the officer will be removed from
the Pending List.
Once the Chief Law Enforcement Officer provides information, the Office will make the legal
determination regarding whether the information must be disclosed to the defense in a particular case.
Additional information may be requested on a case by case basis. This information will only be used to
meet the State’s obligation under the law with respect to cases that we prosecute. The decision as to
whether the Office will sponsor a police officer on the lists will be made on a case by case basis.
The Office must disclose to the criminal defense attorney in a case that a law enforcement employee
who is a witness is on a list and must provide the supporting reasoning. Material that must be disclosed
is not always admissible evidence in trial. In the appropriate case, we will object to the admissibility of
the disclosed evidence through written motion and argument.
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CDA Notification to Chief Law Enforcement Officer
If during trial, pretrial, or preparation for trial, the Office learns of conduct of the officer that calls into
question his or her veracity as a witness, the Chief Law Enforcement Officer and the officer will be
formally notified. The CLEO will be notified about any court made findings of untruthful testimony. The
notification will be in writing and briefly state the nature of the conduct. If a prosecutor initiates a claim
of untruthfulness from conduct occurring during judicial proceedings, the individual prosecutor must
immediately report such incident to the prosecutor’s supervisor for the investigation and initiation of a
charge of perjury against the officer.
Removal from Lists
An officer can be removed from the Pending List upon positive resolution of a pending complaint. After
the conclusion of the pending formal investigation, if the grounds for the investigation are not sustained
after a proceeding that provides due process to the officer, the CLEO will notify the Office, and the
officer will be removed from the Pending List.
An officer can be removed from the Disclosure List for good cause, a legally sufficient reason under
Brady or TEX. CODE CRIM. PROC. art. 39.14. The decision as to whether the Office will sponsor a police
officer on the lists will be made on a case by case basis.
CDA Obligation
When reviewing a case, each ACDA shall check the Disclosure List. If an officer named in a case is also
on the Disclosure List, the ACDA shall file a Brady / TEX. CODE CRIM. PROC. art. 39.14 Notice alerting the
opposing counsel that the officer is on the Disclosure List and for what reason.
Open Records
All or part of the information in possession of this Office, including this Policy and the Disclosure List, is
intended for public disclosure. The Pending List which contains investigative information from officer
personnel files may be considered exempt from public disclosure under Section 552 of the Texas
Government Code
Closing
The goal of the Criminal District Attorney is to exercise due diligence in light of our responsibility under
the Brady doctrine and the Michael Morton Act and to ensure that all defendants receive a fair trial. We
confidently rely on the professional policing practices of our partners in law enforcement in notifying us
about any conduct of officers which meets our legal obligations.
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Letter A
[date]
Mr. Charles M. Mallin
Tarrant County Assistant Criminal District Attorney
Discovery Compliance Liaison
Tim Curry Criminal Justice Center
401 West Belknap Street
Fort Worth, Texas 76196
Re: Officer [name], identification number [ ]
Dear _______________;
In compliance with the legal requirement that our Department make the Tarrant County Criminal
District Attorney aware of material concerning law enforcement officials, enclosed please find
information relating to the above named person, who our records show: (check all appropriate boxes)
□ Has a pending complaint or indictment for any crime other than traffic violations;
□ Has been convicted of any crime other than traffic violations;
□ Has a sustained finding of any misrepresentation or failure to disclose a material fact on the
officer’s application;
□ Has a pending formal investigation for untruthfulness regarding material facts in an official
proceeding;
□ Has a sustained finding of untruthfulness regarding material facts of an official proceeding;
□ Has a pending formal investigation involving violation of a defendant’s constitutional rights;
□ Has a sustained finding involving violation of a defendant’s constitutional rights;
□ Has a pending formal investigation involving bias or prejudice to a class or group of persons;
□ Has a sustained finding involving bias or prejudice to a class or group of persons;
□ Has a pending formal investigation involving improper use of force against an individual;
□ Has a sustained finding involving improper use of force against an individual.
[attach additional info as to any checked item(s)]
[Chief]
[Agency address and phone]
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Letter B
[Date]
Chief [name]
[Agency]
[Address]
[City], Texas, [zip]
Re: Officer [name], identification number [ ]
Dear Chief;
This letter will acknowledge receipt of the Discovery Compliance materials submitted to the Criminal
District Attorney’s Office concerning Officer [name].
As you are aware, the receipt of this material does not necessarily mean it will be determined by our
office or the court to require disclosure to defense counsel. Prior to being called to testify as a witness
for the State, the officer will be fully briefed by an Assistant Criminal District Attorney involved with the
case concerning exactly what material has been disclosed to the defense and the kind of questions
he/she might expect concerning the material.
In some instances, a decision not to sponsor the officer as a witness may be made based on the material
provided.
If you have any questions or comments, please contact me at 817-884-2824 (office), or 817-637-2660
(cell).
Sincerely,
Charles M. Mallin
Tarrant County Assistant Criminal District Attorney
Discovery Compliance Liaison
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Letter C
[Date]
Chief [name]
[Agency]
[Address]
[City], Texas, [zip]
Re: Officer [name], identification number [ ]
Dear Chief;
In compliance with the Discovery Compliance Policy, the Tarrant County Criminal District Attorney’s
Office hereby notifies you that we have learned of conduct of the above referenced officer that calls the
officer’s veracity as a witness into question.
Specifically, (example) on June 4, 2008, Judge Daryl R. Coffey, Presiding Judge, County Criminal Court
No.8 submitted Findings of Fact and Conclusions of Law in case no. 0945337. Judge Coffey found that
the officer had diminished credibility, inconsistencies in his testimony, and that his testimony was
contradicted by the visual activities on the mobile videotape.
The above named officer will be placed on the Disclosure List. Prior to being called to testify as a
witness for the State, the officer will be fully briefed by an Assistant Criminal District Attorney involved
with the case concerning exactly what material has been disclosed to the defense and the kind of
questions he/she might expect concerning the material.
In some instances, a decision not to sponsor the officer as a witness may be made based on the material
provided.
If you have any questions or comments, please contact me at 817-884-2824 (office), or 817-637-2660
(cell).
Sincerely,
Charles M. Mallin
Tarrant County Assistant Criminal District Attorney
Discovery Compliance Liaison
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