(a) Motion to Produce. After a witness other than the defendant testifies on direct examination, the court, on motion of a party who did not call the witness, must order an attorney for the state or the defendant and the defendant’s attorney to produce, for the examination and use of the moving party, any statement of the witness that:
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(1) is in their possession;
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(2) relates to the subject matter of the witness’s testimony; and
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(3) has not previously been produced.
(b) Producing the Entire Statement. If the entire statement relates to the subject matter of the witness’s testimony, the court must order that the statement be delivered to the moving party.
(c) Producing a Redacted Statement. If the party who called the witness claims that the statement contains information that does not relate to the subject matter of the witness’s testimony, the court must inspect the statement in camera. After excising any unrelated portions, the court must order delivery of the redacted statement to the moving party. If a party objects to an excision, the court must preserve the entire statement with the excised portion indicated, under seal, as part of the record.
(d) Recess to Examine a Statement. If the court orders production of a witness’s statement, the court, on request, must recess the proceedings to allow the moving party time to examine the statement and prepare for its use.
(e) Sanction for Failure to Produce or Deliver a Statement. If the party who called the witness disobeys an order to produce or deliver a statement, the court must strike the witness’s testimony from the record. If an attorney for the state disobeys the order, the court must declare a mistrial if justice so requires.
(f) “Statement” Defined. As used in this rule, a witness’s “statement’’ means:
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(1) a written statement that the witness makes and signs, or otherwise adopts or approves;
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(2) a substantially verbatim, contemporaneously recorded recital of the witness’s oral statement that is contained in any recording or any transcription of a recording; or
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(3) the witness’s statement to a grand jury, however taken or recorded, or a transcription of such a statement.
Official Notes and Commentary
Comment to 1998 change: This is prior Rule of Criminal Evidence 614. Comment to 2015 Amendment: The Michael Morton Act, codified at Texas Code of Criminal Procedure art. 39.14, affords defendants substantial pre-trial discovery, requiring the state, upon request from the defendant, to produce and permit the defendant to inspect and copy various items, including witness statements. In many instances, therefore, art. 39.14 eliminates the need, after the witness testifies on direct examination, for a defendant to request, and the court to order, production of a witness’s statement.
But art. 39.14 does not entirely eliminate the need for in-trial discovery of witness statements. Art. 39.14 does not extend equivalent discovery rights to the prosecution, and so prosecutors will still need to use Rule 615 to obtain witness statements of defense witnesses. Moreover, some defendants may fail to exercise their discovery rights under art. 39.14 and so may wish to obtain a witness statement under Rule 615. In addition, the Michael Morton Act applies only to the prosecution of offenses committed after December 31, 2013. Defendants on trial for offenses committed before then have no right to pre-trial discovery of the witness statements of prosecution witnesses.
Consequently, Rule 615(a) has been amended to account for the changed pre-trial discovery regime introduced by the Michael Morton Act. If a party’s adversary has already produced a witness’s statement – whether through formal discovery under art. 39.14 or through more informal means – Rule 615(a) no longer gives a party the right to obtain, after the witness testifies on direct examination, a court order for production of the witness’s statement. But if a party’s adversary has not already produced a witness’s statement, the party may still use Rule 615(a) to request and obtain a court order requiring production of the witness’s statement after the witness finishes testifying on direct examination.