Montgomery County Criminal Defense Attorney - Texas Rules of Evidence Series RULE 615

Montgomery County Criminal Defense Attorney Brian Foley discusses Rule of Evidence 615.

Rule of Evidence 615 applies only to criminal cases and it says that after a witness other than the defendant has testified the opposing side must give a copy of any witness statement related to the testimony. This is typically an offense report or lab report from a police officer or forensic scientist. Although normal eye witnesses may fill out a written statement on the date of the offense and this would be discoverable under Texas Rule of Evidence 615. This rule was in effect prior to mandatory discovery being ordered by Texas Code of Criminal Procedure 39.14. Now these types of statements or offense reports would be required discovery prior to the date of trial much less after the witness testifies. This part of the rule has been made essentially meaningless by the new discovery rules. Even evidence that the prosecutor is not personally aware of must be disclosed to defense if it is in the possession of any state actor like the police or other administrative agency.

Under this rule the court can do an in chambers or "in camera" inspection of statements to determine if the entire statement relates to the subject matter of the criminal case. Again this type of fact finding and hair splitting has been essentially erased by the Michael Morton act and article 39.14.

Another interesting part of this rule allows for the judge to call a recess to the proceeding so that the opposing party may review the statement.

A Statement under this rule will be any written statement, an offense report or deposition that effectively summarizes the statement, and statements made to the grand jury.

The rule requires production even if the witness does not use the statement to refresh their memory during testimony. Epperson v. State, 605 S.W.2d 110,112 (Tex. App. -- Tyler 1983, no pet.).

REMEDY: The remedy if the other side fails or refuses to produce a testifying witness's prior statement is for the judge to strike the witness's testimony on direct examination. Oldham v. State, 743 S.W.2d 734, 735 (Tex. App. -- Fort Worth 1987, pet. ref'd).

Rule 615. Producing a Witness’s Statement in Criminal Cases

(a) Motion to Produce. After a witness other than the defendant testifies on direct examination, the court, on motion of a party who did not call the witness, must order an attorney for the state or the defendant and the defendant’s attorney to produce, for the examination and use of the moving party, any statement of the witness that is in their possession and that relates to the subject matter of the witness’s testimony.

(b) Producing the Entire Statement. If the entire statement relates to the subject matter of the witness’s testimony, the court must order that the statement be delivered to the moving party.

(c) Producing a Redacted Statement. If the party who called the witness claims that the statement contains information that does not relate to the subject matter of the witness’s testimony, the court must inspect the statement in camera. After excising any unrelated portions, the court must order delivery of the redacted statement to the moving party. If a party objects to an excision, the court must preserve the entire statement with the excised portion indicated, under seal, as part of the record.

(d) Recess to Examine a Statement. On the moving party’s request, the court must recess the proceedings to allow time for a party to examine the statement and prepare for its use.

(e) Sanction for Failure to Produce or Deliver a Statement. If the party who called the witness disobeys an order to produce or deliver a statement, the court must strike the witness’s testimony from the record. If an attorney for the state disobeys the order, the court must declare a mistrial if justice so requires.

(f) “Statement” Defined. As used in this rule, a witness’s “statement’’ means:

(1) a written statement that the witness makes and signs, or otherwise adopts or approves;

(2) a substantially verbatim, contemporaneously recorded recital of the witness’s oral statement that is contained in any recording or any transcription of a recording; or

(3) the witness’s statement to a grand jury, however taken or recorded, or a transcription of such a statement.

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