HLS 13RS-597 ORIGINAL
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Regular Session, 2013
HOUSE BILL NO. 371
BY REPRESENTATIVE LOPINTO
Prefiled pursuant to Article III, Section 2(A)(4)(b)(i) of the Constitution of Louisiana.
CRIMINAL/DISCOVERY: Provides relative to discovery and inspection of certain types
of evidence in criminal cases
AN ACT1
To amend and reenact Code of Criminal Procedure Articles 716, 717(A) and (C), 718,2
719(A), 720, 721, 722, 723, 724, 725, 725.1, and 728 and to enact Code of Criminal3
Procedure Articles 716.1 and 717(D), relative to discovery in criminal cases; to4
amend provisions relative to the discovery of statements made by defendants to5
include statements by any codefendant; to provide for protection of the identity of6
certain witnesses; to provide relative to the disclosure of criminal records of7
defendants, codefendants, and witnesses; to amend provisions relative to the8
discovery of documents and other tangible objects; to provide relative to the9
discovery of reports and results of examinations and tests and the form of disclosure10
for such information; to provide relative to the discovery of statements of11
coconspirators; to provide relative to the discovery of confessions and statements of12
codefendants; to provide relative to the discovery of internal documents made by the13
state, the defendant, or agents of the state or defendant; to provide for prospective14
application; and to provide for related matters.15
Be it enacted by the Legislature of Louisiana:16
Section 1. Code of Criminal Procedure Articles 716, 717(A) and (C), 718, 719(A),17
720, 721, 722, 723, 724, 725, 725.1, and 728 are hereby amended and reenacted and Code18
of Criminal Procedure Articles 716.1 and 717(D) are hereby enacted to read as follows:19 HLS 13RS-597 ORIGINAL
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Art. 716. Statements by the defendant and codefendants1
A. Upon written motion of the defendant filed pursuant to Article 521 of this2
Code, the court shall order the district attorney to disclose to the defendant, and to3
permit or authorize the defendant to inspect and copy, photograph or otherwise4
reproduce any relevant written or recorded confession or statement of any nature,5
including recorded testimony before a grand jury, or copy thereof, of the defendant6
in the possession, custody, control, or knowledge of the district attorney.7
B. Upon Except as provided by Paragraph C of this Article, upon written8
motion of the defendant filed pursuant to Article 521 of this Code, the court shall9
order the district attorney to inform the defendant of the existence, but not the10
contents, of any oral confession or statement of any nature made by the defendant11
or any codefendant which the district attorney intends to offer in evidence its case12
in chief at the trial, with the information as to when, where, and to whom such oral13
confession or statement was made.14
C. Upon written motion of the defendant filed pursuant to Article 521 of this15
Code, the court shall order the district attorney to inform the defendant of the16
substance of any oral statement made by the defendant or any codefendant which the17
state intends to offer in evidence made by the defendant its case in chief at the trial,18
whether before or after arrest, in response to interrogation by any person then known19
to the defendant or the codefendant to be a law enforcement officer.20
D. Nothing in this Chapter shall be construed to require that testimony before21
a grand jury be recorded.22
E. Nothing contained in this Chapter shall obligate the state to provide to any23
defendant a witness list for any trial or pretrial matter.24
Art. 716.1. Protection of witness identity25
A. Notwithstanding any provision of law to the contrary, the district attorney26
may delete or excise from any information required to be disclosed herein any27
information which identifies a witness if the district attorney believes the witness's28
safety may be compromised by the disclosure. If the defendant objects to the29 HLS 13RS-597 ORIGINAL
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deletion or excision, he shall do so by written motion. The court shall maintain the1
deletion or excision if, at an ex parte proceeding which shall be recorded and2
maintained under seal, the state establishes probable cause to believe the witness's3
safety may be compromised by the disclosure.4
B. If the information excised by the district attorney includes the substance5
or any part of any written or recorded statement of the witness, the district attorney6
shall provide the excised substance, or any part thereof, to the defendant immediately7
prior to the witness's testimony at the trial.8
C. If the judge finds no probable cause to support the excision or deletion of9
information related to a witness, upon motion of the district attorney, the court shall10
order an automatic stay of all matters related to the disclosure of information about11
the witness and maintain all proceedings under seal during the time while the district12
attorney seeks supervisory review to the appropriate reviewing courts with appellate13
jurisdiction, including the Louisiana Supreme Court.14
Art. 717. Disclosure by the state; criminal records of defendant and witnesses;15
inducements to the state's witnesses16
A. On Upon written motion of the defendant filed pursuant to Article 521 of17
this Code, the court shall order the district attorney to disclose, or to direct the18
appropriate law enforcement agency to disclose, and furnish to the defendant, the19
record of arrests and convictions of the defendant, any co-defendant codefendant,20
and any witness to be called by the state in its case in chief calls, or intends to call21
at trial.22
* * *23
C. The time for disclosure provided for by this Article shall be set by the24
court, provided that the district attorney shall not be required to disclose inducements25
or records of arrests and convictions until the commencement of trial. For any26
witness called by the state in its rebuttal case, the record of arrests and convictions27
of the rebuttal witness, and any inducement offered by the district attorney, or by any28
law enforcement officer on behalf of the district attorney, to secure testimony of the29 HLS 13RS-597 ORIGINAL
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witness in the state's rebuttal case shall be disclosed immediately prior to the witness1
being sworn.2
D. The provisions of Article 716.1 of this Code regarding the protection of3
a witness's identity shall apply to this Article.4
Art. 718. Documents and tangible objects5
Subject to the limitation of Article 723 of this Code, and except as otherwise6
prohibited by law, on upon written motion of the defendant filed pursuant to Article7
521 of this Code, the court shall order the district attorney to permit or authorize the8
defendant to inspect and copy, photograph or otherwise reproduce initial offense9
reports created and known to the prosecutor made in connection with the particular10
case, and to permit or authorize the defendant or an expert working with the11
defendant, to inspect, copy, examine, test scientifically, photograph, or otherwise12
reproduce books, papers, documents, photographs, tangible objects, buildings,13
places, or copies or portions thereof that are within the possession, custody, or14
control of the state, and that:15
(1) are favorable to the defendant and that are material and relevant to the16
issue of guilt or punishment, or17
(2) are intended for use by the state as evidence at the trial, or18
(3) were obtained from or belong to the defendant.19
The court may determine whether evidence is subject to the provisions of20
Paragraph (1) hereof by in camera inspection. were obtained from or belong to the21
defendant, or are intended for use by the state as evidence in its case in chief at trial.22
* * *23
Art. 719. Reports of examinations and tests24
A. Upon written motion of the defendant filed pursuant to Article 521 of this25
Code, the court shall order the district attorney to permit or authorize the defendant26
to inspect and copy, photograph, or otherwise reproduce any results or reports, or27
copies thereof, of a physical or mental examination, and of scientific tests or28
experiments, made in connection with or material to the particular case, that are in29 HLS 13RS-597 ORIGINAL
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the possession, custody, control, or knowledge of the district attorney and intended1
for use at trial. Exculpatory evidence shall be produced under this Article even2
though it is not intended for use at trial. If the witness has not reduced his results or3
reports to writing, the state shall produce for the defendant a summary including the4
name of the witness, his qualifications, a list of materials upon which his conclusion5
is based, his opinion, and the reason therefor.6
* * *7
Art. 720. Evidence of other crimes 8
Upon written motion of defendant filed pursuant to Article 521 of this Code,9
the court shall order the district attorney to inform the defendant of the state's intent10
to offer evidence of the commission of any other crime admissible under the11
authority of Louisiana Code of Evidence Article 404. Provided Articles 404 and12
412.2, provided, however, that such order shall not require the district attorney to13
inform the defendant of the state's intent to offer evidence of offenses which relates14
to conduct that constitutes an integral part of the act or transaction that is the subject15
of the present proceeding or other crimes for which the accused was previously16
convicted.17
Art. 721. Statements of coconspirators18
Upon written motion of the defendant filed pursuant to Article 521 of this19
Code, the court shall order the district attorney to inform disclose to the defendant20
of the state's intent to use any written, recorded, or oral statements of coconspirators21
that the state intends to introduce in its case in chief pursuant to Louisiana Code of22
Evidence Article 801(D)(3)(b). 23
Art. 722. Confessions and inculpatory statements of codefendants 24
Upon written motion of the defendant filed pursuant to Article 521 of this25
Code, the court shall order the district attorney to permit or authorize the defendant26
to inspect and copy, photograph, or otherwise reproduce any relevant written or27
recorded confessions or inculpatory statements made by a codefendant and intended28 HLS 13RS-597 ORIGINAL
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for use at trial. Exculpatory evidence shall be produced under this article even1
though it is not intended for use at trial. 2
Art. 723. State reports and other matters not subject to disclosure, favorable3
evidence 4
A. Except as specifically provided in Articles 716, 718, 721, and 722 this5
Chapter, this Chapter does not authorize the discovery or inspection of reports,6
memoranda, notes, or other internal state documents made by the district attorney or7
by agents of the state in connection with the investigation or prosecution of the case;8
or of statements made by witnesses or prospective witnesses, other than the9
defendant, to the district attorney, or to agents of the state. any document, notes, or10
other items which contain the mental impressions of any attorney for the state or any11
investigator working on behalf of such attorney.12
B. Notwithstanding any provision to the contrary contained herein, the state13
shall provide the defendant with any evidence constitutionally required to be14
disclosed pursuant to Brady v. Maryland, 373 U.S. 83 (1963) and its progeny.15
Art. 724. Documents and tangible objects 16
When the court grants relief sought by the defendant under Article 718 of this17
Code, it shall upon the motion of the district attorney, condition its order by18
requiring that the defendant to disclose to the state, and to permit or authorize the19
district attorney state, or an expert working with the state, to inspect and, copy,20
examine, test scientifically, photograph, or otherwise reproduce books, papers,21
documents, photographs, tangible objects, buildings, places, or copies, or portions22
thereof, that are in the possession, custody, or control of the defendant, and that the23
defendant intends to use in evidence at the trial.24
Art. 725. Reports of examinations and tests 25
When the court grants the relief sought by the defendant under pursuant to26
Article 719 of this Code, it shall, upon the written motion of the state, condition its27
order by requiring that the defendant to disclose to the state, and to permit or28
authorize the state, or an expert working with the state, to inspect and copy,29 HLS 13RS-597 ORIGINAL
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photograph, or otherwise reproduce disclose to the district attorney any results of1
reports, or copies thereof, of physical and mental examinations and of scientific tests2
or experiments, of a similar nature, made in connection with the particular case, that3
are intended for use at trial in the possession, custody, or control of the defendant,4
and that the defendant intends to use as evidence at the trial or were prepared by a5
witness whom the defendant intends to call at the trial when such results or reports6
relate to his testimony. If the witness has not reduced his results or reports to7
writing, the defendant shall produce for the state a summary including the name of8
the witness, his qualifications, a list of materials upon which his conclusion is based,9
his opinion, and the reason therefor.10
Art. 725.1. Disclosure by the defendant; names of defense witnesses11
If the defendant moves, pursuant to Article 716, 717, 721, or 722 of this12
Code, for disclosure of the records of arrests and convictions of witnesses to be13
called by the state in its case in chief, the defendant shall disclose to the district14
attorney, prior to those witnesses being sworn, the name and date of birth of the15
witnesses to be called by the defendant in his case in chief.16
* * *17
Art. 728. Defense information and other matters not subject to disclosure 18
Except as to scientific or medical reports specifically provided in this19
Chapter, this Chapter does not authorize the discovery or inspection of reports,20
memoranda, notes, or other internal defense documents made by the defendant or his21
attorneys or by agents of the defendant in connection with the investigation or22
defense of the case; or of statements made by the defendant, or by witnesses or23
prospective witnesses to the defendant, his agents or attorneys; or of the names of24
defense witnesses or prospective defense witnesses. any document, notes, or other25
items which contain the mental impressions of any attorney for the defendant or any26
investigator working on behalf of such attorney.27
Section 2. The provisions of this Act shall only be applied prospectively.28 HLS 13RS-597 ORIGINAL
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DIGEST
The digest printed below was prepared by House Legislative Services. It constitutes no part
of the legislative instrument. The keyword, one-liner, abstract, and digest do not constitute
part of the law or proof or indicia of legislative intent. [R.S. 1:13(B) and 24:177(E)]
Lopinto HB No. 371
Abstract: Provides relative to discovery and inspection of certain types of evidence in
criminal cases.
Present law provides relative to motions by the state and by the defendant in criminal cases
for discovery and inspection of the following types of evidence:
(1)Any relevant written or recorded confession or statement of any nature of the
defendant.
(2)Any results or reports of a physical or mental examination made in connection with
or that are material to the case.
(3)Any results or reports of scientific tests or experiments made in connection with or
that are material to the case, including exculpatory evidence not intended for use at
trial.
(4)Any written or recorded confessions or inculpatory statements made by a
codefendant.
(5)Any oral confession or statement of any nature made by the defendant.
(6)Any oral statement made by the defendant in response to interrogation by a law
enforcement officer.
(7)Evidence of the commission of any other crime admissible pursuant to present law.
(8)Any statements of coconspirators.
(9)The record of arrests and convictions of the defendant, any codefendant, and any
witness to be called by the state in its case in chief.
(10)Any inducement offered to secure the testimony of any witness.
(11)Books, papers, documents, photographs, tangible objects, buildings, places, or copies
that are favorable to the defendant, material and relevant to the issue of guilt or
punishment, that are intended for use by the state as evidence, or were obtained from
or belong to the defendant.
(12)Internal reports, memoranda, or other documents made by either party or by the
agents of either party in connection with the investigation, prosecution, or defense
of the case.
Proposed law substantially amends present law, including but not limited to the following
changes:
(1)Provides that motions for discovery made by the defendant shall be in writing and
shall be filed within the time periods for filing pretrial motions as provided for in
present law. HLS 13RS-597 ORIGINAL
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(2)Provides that motions for discovery made by the defendant relative to oral statements
made by the defendant, or the substance of any oral statement made by the defendant
in response to interrogation, shall also apply to such statements by any codefendant.
(3)Provides that nothing in proposed law or present law shall be construed to require
that testimony before a grand jury be recorded nor shall it obligate the state to
provide any defendant a witness list for any trial or pretrial matter.
(4)Authorizes the district attorney to delete or excise from information identifying a
certain witness, otherwise required to be disclosed pursuant to present law or
proposed law, if the district attorney believes that the witness's safety may be
compromised by such disclosure. Provides for the procedure by which a defendant
may object to such action by the district attorney and the procedure by which such
information shall be disclosed to the defendant.
(5)Amends present law to provide that the district attorney, when ordered to do so by
the court, is only required to disclose to the defendant the record of arrests and
convictions of the defendant, any codefendant, or any witness, and removes the
requirement that the state furnish such records to the defense. Further provides that
such records for any witness called by the state in its rebuttal case and any
inducement offered to secure such witness's testimony shall be disclosed
immediately prior to the witness being sworn.
(6)Authorizes the defendant to request, and the court to order the district attorney to
authorize the defendant to inspect, copy, photograph, or otherwise reproduce, initial
offense reports created and known to the prosecutor made in connection with the
particular case.
(7)Removes the requirement that documents and tangible objects be favorable to the
defendant and be material and relevant to the issue of guilt or punishment, in order
for the district attorney to be ordered to permit or authorize the defendant, or an
expert working with the defendant, to inspect, copy, photograph, or otherwise
reproduce such items.
(8)Provides that if the results or reports intended to be used by either party have not
been reduced to writing, each party shall produce for the other party a summary
which includes the name of the witness, his qualifications, a list of materials upon
which his conclusion is based, his opinion, and his reasons therefor.
(9)Clarifies that motions for discovery by the defendant relative to statements of
coconspirators shall include written, recorded, or oral statements that the state
intends to introduce in its case in chief.
(10)Removes the requirement that in order for the state to be required to permit or
authorize inspection or reproduction of confessions and statements of codefendants,
the statements shall be inculpatory, the written or recorded confessions shall be
relevant, and the confessions or statements shall be intended for use at trial.
(11)Adds internal documents, notes, or other items which contain the mental impressions
of the attorney, or any investigator working for the attorney, to the list of items
which are not discoverable or subject to inspection.
(12)Provides that the state shall provide the defendant with any exculpatory evidence that
is material to the defendant's guilt or punishment, as constitutionally required by the
case Brady v. Maryland, 373 U.S. 83 (1963). HLS 13RS-597 ORIGINAL
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(13)Provides for prospective application.
(Amends C.Cr.P. Articles 716, 717(A) and (C), 718, 719(A), 720, 721, 722, 723, 724, 725,
725.1, and 728; Adds C.Cr.P. Articles 716.1 and 717(D))