By now you’d think everyone would agree the Michael Morton Act was a step in the right direction to achieving greater transparency and fairness in the criminal justice system. But that wasn’t the attitude of a misdemeanor supervisor in Dallas county after he learned blood evidence would not be coming in to a trial after a successful motion to suppress blood evidence because of the State’s failure to properly and timely produce expert witnesses beforehand. A legal technicality, or holding the State to its burden of proof through zealous representation? To the client who had his DWI dismissed that day because his blood evidence was kept out, the distinction was academic.
What the Law Says
Texas Code of Criminal Procedure §39.14(b) states that if a party requests a list of expert witnesses 30 days before trial, the other side must produce the name and address of anyone who will be called to testify within 20 days before trial. The purpose of this provision is to give all parties the chance to properly prepare for trial by previewing who will testify, which will inform the defense strategy, as well as afford the defense a chance to research or interview the person in advance.
Do Your Homework
In a DWI case, the evidence often boils down to the numbers. Lay jurors put a lot of stock in blood alcohol measurements, which appear scientific and authoritative. One can impeach that evidence persuasively, but having it thrown out altogether so the jury never sees it is even better. One tactic to do so is to watch the calendar and confirm the prosecutor you’re up against has produced the name and address of the experts you requested. If they have not done so—in correct form and within 20 days before trial—seat the jury so jeopardy attaches, then immediately make an oral motion before the court to have the evidence excluded. The law requires the State to prove their case beyond a reasonable doubt. Zealous defense attorneys will keep prosecutors to it, not give passes on shoddy trial preparation.
Home Free
The judge has the discretion to interpret the law strictly and keep out all mention of blood evidence, or accommodate the prosecutors and re-set the case to a new date which would give the defense its 20 days’ notice. If you don’t get your ruling, politely insist that the judge make the adverse ruling clear and on the record. Then, fill out the paperwork for appeal, and note that your voir dire would have been completely different had you known blood evidence would come in (contrary to the provisions in the discovery rules found in Article 39). Your coming appeal should be at the top of your mind.
Remember the details of the Rules, and use them to your advantage leading up to trial, especially in cases with high blood alcohol numbers or other difficult facts, where suppressing evidence could mean the difference between a guilty jury verdict, or a dismissed case before lunch.
If you are facing a DWI or any other criminal charge, contact a skilled attorney immediately who can answer your questions and fight for your best interests first.
