By Allen, Texas Criminal Defense Lawyer Kyle T. Therrian
Office Number: (972) 562-7549
24 Hr Jail Release: (214) 403-6522
www.rosenthalwadas.com

The laws governing the criminal process create a give-and-take relationship between the authority of government and the rights of individuals. While the law seeks to reach the perfect equilibrium between the two, many individual rights don’t kick in until the process becomes a more formal one. Prior to filing a criminal charge, the prosecutor has at his disposal the power of the grand jury alongside trained investigators armed with search and arrest warrants.

The Legal tools of investigation available to a criminal defendant are also substantial, but largely reactionary. Constitutionally, a defendant has considerable power to discover evidence in the hands of the prosecutor. A defendant also has statutory rights under Code of Criminal Procedure 39.14 and Texas Rule of Evidence 615 which can be used to demand reports, statements and other evidence. Most of these rights are triggered only after the State files a case and some even later. In any event, these rights are triggered well after the conclusion of the State’s investigation.

Usually, reactionary tools are more than suitable to investigate a matter and mount a defense. However, some cases call for the defendant to take affirmative steps to preserve evidence quickly. This is especially true in situations where important evidence is in the hands of someone other than the soon-to-be-defendant or someone not particularly friendly to the soon-to-be-defendant’s case. It is true that the prosecutor would have to turn over this type of evidence should they stumble upon it in their own investigation, but no law requires the State to affirmatively seek out evidence favorable to the defendant.

In these unique situations, the disparity of power to investigate is prevalent. Take a hypothetical situation where a local news station has raw footage of a crime scene but plans to purge it from their database. If that footage contains evidence favorable to the State, the prosecutor need only snap his fingers and the grand jury would have it produced. But if the footage is favorable to the defendant and the State doesn’t care for it, what then?

It is in these types of situations where a little vigilance and outside-the-box thinking goes a long way. They should also illustrate why it is important to have not just a good trial attorney but one who can use some duct tape, a paper clip and a Swiss Army knife to get what is needed. A defendant never has the burden of proving his innocence, but where such proof exists, it won’t always sit around waiting to be discovered.

*Kyle Therrian is an attorney licensed to practice in the State of Texas. Nothing in this article is intended to be legal advice. For legal advice on any case you should contact an attorney directly.