EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Tuesday, June 5, 2012

Make A Note Of It: Court Of Appeals Of Texas Finds Prosecution's Notes Are Not Witness Statements

Texas Rule of Evidence 615(a) provides that

After a witness other than the defendant has testified on direct examination, the court, on motion of a party who did not call the witness, shall order the attorney for the state or the defendant and defendant's attorney, as the case may be, 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 concerning which the witness has testified.

Meanwhile, Texas Rule of Evidence 615(f) indicates that 

As used in this rule, a "statement" of a witness means:

(1) a written statement made by the witness that is signed or otherwise adopted or approved by the witness;

(2) a substantially verbatim recital of an oral statement made by the witness that is recorded contemporaneously with the making of the oral statement and that is contained in a stenographic, mechanical, electrical, or other recording or a transcription thereof; or

(3) a statement, however taken or recorded, or a transcription thereof, made by the witness to a grand jury.

So, let's say that the government has notes from its interview with a witness for the prosecution. Do these notes constitute a "statement" of a witness that has to disclose upon a defense motion? According to the recent opinion of the Court of Appeals of Texas, San Antonio, in Wilkerson v. State, 2012 WL 1940650 (Tex.App.-San Antonio 2012), the answer is "no."

In Wilkerson

Darrell Wilkerson was divorcing his wife Tara, but they continued living together. During an argument, Tara threw a phone at Darrell which hit him in the back. Darrell walked to David Herrera's home nearby, and Herrera saw Tara repeatedly strike Darrell. Officer Michelle Lewis responded to Darrell's 911 call. She interviewed Darrell and Herrera, saw a mark under Darrell's right eye and redness on his shoulder. Officer Lewis found Tara in her home, observed her condition, asked her about Darrell's allegations, and arrested her.

After Tara was convicted of misdemeanor assault, she appealed, claiming, inter alia, that the trial court erred by failing to required the prosecution to disclose its notes from interviews with Darrell in response to a motion by defense counsel. According to Tara, "the prosecutor's notes [we]re actually Darrell's witness statements under Rule 615(f)(2)."

In response, the government contended "that the prosecutor's notes were merely the State's 'summary of the complainant's expected testimony' and...d[id] not meet the definition of statements under the rule." Moreover, it claimed that its argument was bolstered by the fact that "Darrell never signed, adopted, or approved the prosecutor's notes."

The court found that "the record support[ed] the State's assertion" and thus that "the trial court did not abuse its discretion by overruling Tara's Rule 615 motion."



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