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Saturday, August 27, 2011

Weekend Reading 10

Well, this is interesting.
Under section 264.408 of the Family Code, “A videotaped interview of a child made at a center is the property of the prosecuting attorney involved in the criminal prosecution of the case involving the child.”


You have got to be shitting me. The tape of the interview, apparently officiated over by the goddamn investigating officer, is the personal property of the prosecutors. They don’t have to share it unless the court orders it. If the defense doesn't know of it's existence, they can't ask for it.

I'm going to develop this a little more; what this means is, if there were some kind of exculpatory evidence on the tape, it would be up to the prosecutor to decide whether or not to hand it over to the defense. They are required by law to do so, but there's no one to check and make sure that they're actually doing it. We're just supposed to trust them. To use a bit of hyperbole, you could have a tape of an interviewer literally beating an accusation out of a child, but if the prosecutor decided not to share it with the defense, then that's it, unless the defense lawyer a) somehow knew about the existence of the tape b) mistrusted the prosecutor enough to doubt their adherence to Brady, and c) knew that they could ask the court to order the prosecution to hand over the tape.

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