Duty to Interview State Witnesses
Deposing State witnesses. The provisions of the Texas Code of Criminal Procedure (Art. 39.02) for deposing witnesses are among the most helpful and least utilized tools available to a criminal defense attorney. Defense lawyers seldom attempt to depose State witnesses because of the perception that judges will summarily deny the required judicial authorization. Some judges will be resistant to applications for depositions, but others will be receptive. No judge is going to do it sua sponte—you have to ask. There is more law supporting your right to take depositions than you might realize.
Duty to interview State witnesses. The Court of Criminal Appeals has repeatedly held that defense counsel “has a responsibility to seek out and interview potential witnesses . . . and failure to do so is to be ineffective, if not incompetent. . . .”1 Witnesses include peace officer investigators, victims, and eyewitnesses. The Fifth Circuit says “counsel’s failure to interview eyewitnesses to a charged crime constitutes constitutionally deficient representation.”2 The State “opening its file” is an inadequate substitute for interviews.3 The duty to investigate applies even when the defendant may plead guilty.4 You cannot determine that a witness would lack credibility until you interview the witness.5
Ineffective assistance of counsel. “Bad Lawyer—Bad Judge—Bad 11.07” (Voice, June 2009) told of habeas corpus relief granted by the Fifth Circuit for ineffective assistance where the defense lawyer failed to interview State witnesses, among other things. The Fifth Circuit said the bad lawyer should have interviewed the State’s witnesses, but they did not say how to obtain interviews with uncooperative witnesses despite the lawyer having testified: “it was nearly impossible to interview them before the day of trial. . . .”6
Protect yourself. Regardless of how the trial judge ruled, the “bad lawyer” would have avoided the ineffective assistance finding by filing an application to take depositions of the State witnesses. The lawyer would have deposed the witnesses if the judge granted the applications; all blame would have been transferred to the judge if the applications were denied. The Fifth Circuit might still have granted habeas corpus, but they would have attributed the deficiencies to the trial judge who denied the applications instead of the defense attorney.
Deposition procedure. Art. 39.02, TCCP, provides for deposing witnesses when “good reason exists for taking the deposition,” and requires the filing of “an affidavit stating the facts necessary to constitute a good reason for taking the witness’ deposition and an application to take the deposition.” You must file both the affidavit and the application. A sworn application alone is not enough.7 You must request and conduct a timely hearing. Advancing an application at trial constitutes waiver.8 Sample applications, affidavits, related motions, orders, and brief are available at TDCLA or WRC websites.
Good reason as a matter of law. The Texarkana Court of Appeals has held the “refusal of a witness who possesses information critical to a significant factor at trial, or who has information exclusively within that witness’ knowledge, to talk to the defendant’s counsel (or investigator) constitutes good reason for ordering such witness’ deposition under Art. 39.02.” The “victim of an offense obviously possessed information critical to a significant factor at trial.”9 They noted that a judge can implement safeguards to protect fragile witnesses.
Attempt to obtain a voluntary interview. You must prove the witness is unwilling to participate in a voluntary interview.10 File a Discovery Motion to obtain the names, address, and phone numbers of State witnesses. Send letters asking them to call you or your investigator. Call them if they do not respond. There is no need to beg, plead, or pressure them. Your letters and calls lay the foundation for requesting their deposition.
Record your calls/interviews. Witnesses can be uncooperative and even discourteous. You must be polite. They may refuse to speak with you. They may answer some questions and decline to answer others, leaving you with an incomplete interview that justifies a deposition. Stearnes11 instructs that you record the calls/interviews and that you have a third-party present. The recording will protect you from allegations that you were rude or hostile, and it holds the witness to their story for anything they say.
Subpoena the witness to the hearing. The judge can rule against your application, but you are entitled to a hearing.12 Subpoena the witness(es) whom you seek to depose to the hearing. Their testimony will establish the facts that establish good reason for the deposition—that they possess knowledge and information critical to factors that will be significant at trial; that they have information concerning the case that is exclusively within their knowledge (or within the knowledge of the State’s witnesses as a group); the general subject of their knowledge; and that they refuse to participate in an interview with you.
The judge and prosecutor share your problem. Judges and prosecutors have a duty to assure effective assistance of counsel to the defendant, and a responsibility to take remedial or corrective action to avoid ineffective assistance.13 Your client will be deprived of effective assistance of counsel unless you interview the witnesses. Any argument against authorizing depositions effectively dismisses a whole litany of cases from the United States Supreme Court, the Fifth Circuit, and the Texas Court of Criminal Appeals as wrongly decided.14 Prosecutors are prohibited from asking witnesses to refrain from voluntarily giving information to you by Rule 3.04(e), Texas Professional Conduct Code. A prosecutor who opposes your application fails in his/her duty to assure effective assistance of counsel to the defendant, and asks the judge to fail in his/her duty as well by empowering the witness to withhold information.
Collateral impact. Granting depositions will not impose overwhelming burdens on the criminal justice system:
1)Depositions create a time-saving method for defense attorneys to conduct interviews already required by law.
2)Prosecutors have no obligation to attend or to participate in depositions.
3)Judges will not spend any time on depositions because they do not preside over them.
Any minimal burdens that depositions may impose are purposeful and necessary.
Courts do not exist to conserve judicial resources. Courts exist to expend judicial resources, and they should cheerfully do so to protect constitutional rights, such as the right to counsel. If courts cannot do that, then judicial resources are not worth conserving. Constitutions create rights. The people count on judges to enforce them. The Texas Legislature commands us to do so. We have sworn to do so. Nobody else can do so. If we choose to conserve our judicial resources instead of using them to protect the United States and Texas constitutional and statutory right to counsel, then what better use, exactly, are we conserving them for?
Concurring opinion of Justice Cohen. Jack v. State, 64 S.W.3d 694, 698 (Houston 1st, 2002).
Harm factors. The “harm” of not interviewing witnesses is incomplete knowledge of the facts of the case, which:
1)limits formulation of defense strategy and tactics;
2)precludes knowing where and how to attack the State’s case;
3)prevents pretrial preparation for an effective attack on the deficiencies in the State’s case;
4)causes an incoherent/disjointed defense that results in blindly poking holes in the State’s case instead of mounting an effective defense;
5)limits knowledge of potentially applicable statutory defenses;
6)prevents giving a complete opening statement;
7)impairs and restricts cross-examination;
8)limits impeachment and rebuttal evidence;
9)allows surprise evidence inconsistent with your plan of defense;
10)impedes formulation of appropriate jury selection questions,
11)precludes intelligent exercise of peremptory jury challenges and pursuit of legitimate challenges for cause;
12)causes loss of opportunity to accept plea offer.
Preserving harm. Do not announce “Ready.” At trial, on the record outside the presence of the jury, reassert your request to depose the State witnesses. Announce “not ready by reason of incomplete knowledge of the facts because of the denial of depositions of State witnesses, and the resulting inability to provide effective assistance of counsel.” Tell the judge you are prevented from making an opening statement because of the denial of the depositions, or that you are involuntarily compelled to give an incomplete opening statement. Following the testimony of each witness, assert that you were required to limit cross-examination because you did not know how the witness would answer some questions, and that you were denied the opportunity to fully confront and cross-examine the witnesses. The harm factors (listed in the paragraph above) should be re-asserted on the record at every opportunity: at pretrial hearings, at announcement, during jury selection, at opening statements, following cross-examination of each witness, at the conclusion of trial, and in Motions for New Trial. Suggestions for developing, demonstrating, and preserving harm are available at TDCLA or WRC websites.
Be positive; be resilient. You are seeking to assure a fair trial, and are asking only for the tools and resources necessary to provide effective assistance of counsel. You are creating a win-win situation for yourself and your client. The trial judge can deny your application,15 but look on the positive side—you won’t have to write an Anders brief; your judge will take the blame when ineffective assistance is raised on appeal or by habeas corpus; you won’t feel like you have been run over by a truck when you get that letter from your client at TDC asking for copies of your witness interview notes; and you won’t have to give an embarrassing explanation for not attempting to interview the State witnesses at the habeas corpus hearing.
Interviews with State witnesses are essential to provide effective assistance of counsel. If the Texas Appellate Courts do not act to assure these interviews, then the Fifth Circuit will likely do so by readily finding harm and granting relief in habeas proceedings where depositions were requested and denied in the underlying trial court. Defense counsel has everything to gain by applying for witness depositions, and much to lose in not doing so.
1. Stearnes, 780 S.W.2d 216, 224 (CCA 1989); Duffy, 607 S.W.2d 507, 517 (CCA 1980); Ybarra, 629 S.W.2d 943, 946 (CCA 1982); see also Welborn, 785 S.W.2d 391, 393 (CCA 1990). Client’s inability to pay does not justify failure to investigate. Briggs, 187 S.W.3d 458, 467 (CCA 2005).
2. Richards, 566 F.3d 553, 571 (5th Cir. 2009) [578 F. Supp. 2d 849 (N.D. Tex., 2008)]; Anderson, 338 F.3d 382, 391 (5th Cir. 2003); see also Sullivan, 819 F.2d 1382 (7th Cir., 1987). All reference Strickland, 466 US 668 (1984), for the inherent proposition that failure to interview witnesses constitutes ineffective assistance.
3. Duffy, 607 S.W.2d 507, 518 FN19 (CCA 1980).
4. Bratchett, 513 S.W.2d 851 (CCA 1974); Harris, 596 S.W.2d 893 (CCA 1980). While it is the client’s decision to plead guilty, it is the attorney’s duty to investigate the facts of the case and to give advice concerning the defendant’s decision.
5. Harrison, 496 F.3d 419, 571 (5th Cir. 2007). Strategic choices concerning whether to call a witness require investigation. Deciding not to call a witness who has never been interviewed is not a strategic choice.
7. Bryant, 685 S.W.2d 472 (Fort Worth 1985); Gonzales, 822 S.W.2d 189 (Corpus Christi 1991); James, 546 S.W.2d 306 (CCA 1977).
8. Langston, 416 S.W.2d 821 (CCA 1967).
9. Morrow, 139 S.W.3d 736, 743 (Texarkana 2004). Denial of deposition was error, but harmless under the circumstances. Nothing in record indicated surprise, harm, or adverse affect.
10. Janecka, 937 S.W.2d 456 (CCA 1996).
11. Stearnes, supra, 780 S.W.2d at 216.
12. Art. 39.02, TCCP. “[T]he judge shall hear the application and determine if good reason exists for taking the deposition.”
13. Ewing, 570 S.W.2d 941, 944 (CCA 1978); Fitzgerald, 505 F.2d 1334, 1337 (5th Cir. 1974, en banc).
14. See FN 1, 2, and 12 for citations.
15. Or perhaps not. Mandamus was granted with analogous legal issues.in Stearns, supra, 780 S.W.2d at 225–6. Art. 39.02 affords discretion in determining whether “good reason” exists for deposing a witness, but there may be no discretion to deny a deposition where the accused is thereby certain to be denied effective assistance of counsel, with a cat-and-mouse game then ensuing to see if harm can be established for reversal on appeal. Of all reported cases concerning Art. 39.02, only Morrow, supra, 139 S. W. 3d at 743, raised or asserted effective assistance of counsel as the “good reason” for the deposition. Morrow seemingly would have held it was an abuse of discretion to deny the deposition if harm had been established.