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Regular Session, 2013
HOUSE BILL NO. 371
BY REPRESENTATIVES LOPINTO AND HONORE
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, 718, 719(A), 720, 721,2
722, 723, 724, 725, 725.1, and 728 and to enact Code of Criminal Procedure Article3
729.7, relative to discovery in criminal cases; to amend provisions relative to the4
discovery of statements made by defendants to include statements by any5
codefendant; to provide for protection of the identity of certain witnesses; to provide6
relative to the disclosure of criminal records of defendants, codefendants, and7
witnesses; to amend provisions relative to the discovery of documents and other8
tangible objects; to provide relative to the discovery of reports and results of9
examinations and tests and the form of disclosure for such information; to provide10
relative to the discovery of statements of coconspirators; to provide relative to the11
discovery of confessions and statements of codefendants; to provide relative to the12
discovery of internal documents made by the state, the defendant, or agents of the13
state or defendant; to provide for prospective application; and to provide for related14
matters.15
Be it enacted by the Legislature of Louisiana:16
Section 1. Code of Criminal Procedure Articles 716, 717, 718, 719(A), 720, 721,17
722, 723, 724, 725, 725.1, and 728 are hereby amended and reenacted and Code of Criminal18
Procedure Article 729.7 is hereby enacted to read as follows:19 HLS 13RS-597 REENGROSSED
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Art. 716. Statements by the defendant , codefendants, and witnesses1
A. Upon written motion of the defendant, the court shall order the district2
attorney to disclose to the defendant, and to permit or authorize the defendant to3
inspect and copy, photograph or otherwise reproduce any relevant written or4
recorded confession or statement of any nature, including recorded testimony before5
a grand jury, or copy thereof, of the defendant in the possession, custody, control, or6
knowledge of the district attorney.7
B. Upon Except as provided by Paragraph C of this Article, upon written8
motion of the defendant, the court shall order the district attorney to inform the9
defendant of the existence, but not the contents, of any oral confession or statement10
of any nature made by the defendant or any codefendant which the district attorney11
intends to offer in evidence its case in chief at the trial, with the information as to12
when, where, and to whom such oral confession or statement was made.13
C. Upon written motion of the defendant, the court shall order the district14
attorney to inform the defendant of the substance of any oral statement made by the15
defendant or any codefendant which the state intends to offer in evidence made by16
the defendant its case in chief at the trial, whether before or after arrest, in response17
to interrogation by any person then known to the defendant or the codefendant to be18
a law enforcement officer.19
D. Upon written motion of the defendant, the court shall order the district20
attorney to disclose to the defendant, and to permit or authorize the defendant to21
inspect and copy any written or recorded statements of any witness the state intends22
to call in its case in chief at the trial. For purposes of this Article: (1) "written or23
recorded statement of a witness" shall mean any audio or audio-video recording of24
an oral statement or interview of a witness, and any statement a witness writes or25
signs; (2) for the purposes of this Article, "trial" shall mean the phase of the case at26
which the state attempts to meet its burden as to guilt, and specifically does not27
extend to pretrial matters or hearings, or to the penalty phase in capital prosecutions.28 HLS 13RS-597 REENGROSSED
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The state need not provide the defendant any written or recorded statement of its1
witnesses until immediately prior to the opening statement at trial.2
E. Nothing in this Chapter shall be construed to require that testimony before3
a grand jury be recorded.4
F. Nothing contained in this Chapter shall obligate the state to provide to any5
defendant a witness list for any trial or pretrial matter.6
Art. 717. Disclosure by the state; criminal records of defendant and witnesses;7
inducements to the state's witnesses8
A. On Upon written motion of the defendant, the court shall order the district9
attorney to disclose, or to direct the appropriate law enforcement agency to disclose,10
and furnish to the defendant, the record of arrests and convictions of the defendant,11
any co-defendant codefendant, and any witness to be called by the state in its case12
in chief calls, or intends to call at trial.13
B. The district attorney shall also disclose any inducement offered by the14
district attorney, or by any law enforcement officer on behalf of the district attorney,15
to secure the testimony of the witness in the case in chief of the state to any state16
witness.17
C. The time for disclosure provided for by this Article shall be set by the18
court, provided that the district attorney shall not be required to disclose inducements19
or records of arrests and convictions until the commencement of trial. For any20
witness called by the state in its rebuttal case, the record of arrests and convictions21
of the rebuttal witness, and any inducement offered by the district attorney, or by any22
law enforcement officer on behalf of the district attorney, to secure testimony of the23
witness in the state's rebuttal case shall be disclosed immediately prior to the witness24
being sworn.25
D. The provisions of Article 729.7 of this Code regarding the protection of26
a witness's identity shall apply to this Article.27 HLS 13RS-597 REENGROSSED
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Art. 718. Documents and tangible objects1
Subject to the limitation of Article 723 of this Code, and except as otherwise2
prohibited by law, on upon written motion of the defendant, the court shall order the3
district attorney to permit or authorize the defendant to inspect and copy, photograph4
or otherwise reproduce law enforcement reports created and known to the prosecutor5
made in connection with the particular case, and to permit or authorize the defendant6
or an expert working with the defendant, to inspect, copy, examine, test7
scientifically, photograph, or otherwise reproduce books, papers, documents,8
photographs, tangible objects, buildings, places, or copies or portions thereof that are9
within the possession, custody, or control of the state, and that :10
(1) are favorable to the defendant and that are material and relevant to the11
issue of guilt or punishment, or12
(2) are intended for use by the state as evidence at the trial, or13
(3) were obtained from or belong to the defendant.14
The court may determine whether evidence is subject to the provisions of are15
intended for use by the state as evidence in its case in chief at trial, or were obtained16
from or belong to the defendant.17
* * *18
Art. 719. Reports of examinations and tests19
A. Upon written motion of the defendant, the court shall order the district20
attorney to permit or authorize the defendant to inspect and copy, photograph, or21
otherwise reproduce any results or reports, or copies thereof, of a physical or mental22
examination, and of scientific tests or experiments, made in connection with or23
material to the particular case, that are in the possession, custody, control, or24
knowledge of the district attorney and intended for use at trial. If the witness25
preparing the report will be called as an expert, the report shall contain the witness's26
area of expertise, his qualifications, a list of materials upon which his conclusion is27
based, and his opinion and the reason therefor. If the expert witness has not reduced28
his results to writing, or if the expert witness's written report does not contain the29 HLS 13RS-597 REENGROSSED
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information required of an expert as provided in this Article, the state must produce1
for the defendant a written summary containing any information required to be2
produced pursuant to this Article but absent from a written report, if any, including3
the name of the expert witness, his qualifications, a list of materials upon which his4
conclusion is based, and his opinion and the reason therefor.5
* * *6
Art. 720. Evidence of other crimes 7
Upon written motion of defendant, the court shall order the district attorney8
to inform the defendant of the state's intent to offer evidence of the commission of9
any other crime admissible under the authority of Louisiana Code of Evidence10
Article 404. Provided Articles 404 and 412.2 however, . However, that such order11
shall not require the district attorney to inform the defendant of the state's intent to12
offer evidence of offenses which relates to conduct that constitutes an integral part13
of the act or transaction that is the subject of the present proceeding or other crimes14
for which the accused was previously convicted.15
Art. 721. Statements of coconspirators16
Upon written motion of the defendant, the court shall order the district17
attorney to inform disclose to the defendant of the state's intent to use any written,18
recorded, or oral statements of coconspirators that the state intends to introduce in19
its case in chief pursuant to Louisiana Code of Evidence Article 801(D)(3)(b). 20
Art. 722. Confessions and inculpatory statements of codefendants 21
Upon written motion of the defendant, the court shall order the district22
attorney to permit or authorize the defendant to inspect and copy, photograph, or23
otherwise reproduce any relevant written or recorded confessions or inculpatory24
statements made by a codefendant and intended for use at trial. Exculpatory25
evidence shall be produced under this article even though it is not intended for use26
at trial. 27 HLS 13RS-597 REENGROSSED
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Art. 723. State reports and other matters not subject to disclosure, favorable1
evidence 2
A. Except as specifically provided in Articles 716, 718, 721, and 722 this3
Chapter, this Chapter does not authorize the discovery or inspection of reports,4
memoranda, notes, or other internal state documents made by the district attorney or5
by agents of the state in connection with the investigation or prosecution of the case;6
or of statements made by witnesses or prospective witnesses, other than the7
defendant, to the district attorney, or to agents of the state. any document, notes, or8
other items which contain the mental impressions of any attorney for the state or any9
investigator working on behalf of such attorney.10
B. Notwithstanding any provision to the contrary contained herein, the state11
shall provide the defendant with any evidence constitutionally required to be12
disclosed pursuant to Brady v. Maryland, 373 U.S. 83 (1963) and its progeny.13
Art. 724. Documents and tangible objects 14
When the court grants relief sought by the defendant under Article 718 of this15
Code, it shall upon the motion of the district attorney, condition its order by16
requiring that the defendant to disclose to the state, and to permit or authorize the17
district attorney state, or an expert working with the state, to inspect and, copy,18
examine, test scientifically, photograph, or otherwise reproduce books, papers,19
documents, photographs, tangible objects, buildings, places, or copies, or portions20
thereof, that are in the possession, custody, or control of the defendant, and that the21
defendant intends to use in evidence at the trial.22
Art. 725. Reports of examinations and tests 23
When the court grants the relief sought by the defendant under pursuant to24
Article 719 of this Code, it shall, upon the written motion of the state, condition its25
order by requiring that the defendant to disclose to the state, and to permit or26
authorize the state, or an expert working with the state, to inspect and copy,27
photograph, or otherwise reproduce, and disclose to the district attorney any results28
of reports, or copies thereof, of physical and mental examinations and of scientific29 HLS 13RS-597 REENGROSSED
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tests or experiments, of a similar nature, made in connection with the particular case,1
that are in the possession, custody, or control, or knowledge of the defendant, and2
that the defendant intends to intended for use as evidence at the trial or were3
prepared by a witness whom the defendant intends to call at the trial when such4
results or reports relate to his testimony. If the witness preparing the report will be5
called as an expert, the report shall contain the witness's area of expertise, his6
qualifications, a list of materials upon which his conclusion is based, and his opinion7
and the reason therefor. If the expert witness has not reduced his results or reports8
to writing, or if the expert witness written report does not contain the information9
required of an expert as provided in this Article, the defendant must produce for the10
state a written summary containing any information required to be produced pursuant11
to this Article but absent from a written report, if any, including the name of the12
expert witness, his qualifications, a list of materials upon which his conclusion is13
based, and his opinion and the reason therefor.14
Art. 725.1. Disclosure by the defendant; names of defense witnesses15
A. If the defendant moves, pursuant to Article 717, for disclosure of the16
records of arrests and convictions of witnesses to be called by the state in its case in17
chief, the defendant shall disclose to the district attorney, prior to those witnesses18
being sworn, the name and date of birth of the witnesses to be called by the19
defendant in his case in chief.20
B. If the defendant moves, pursuant to Article 716(D), for disclosure of21
statements of witnesses to be called by the State in its case in chief, the defendant22
shall, upon motion by the state, disclose to the district attorney, and to permit or23
authorize the district attorney to inspect and copy any written or recorded statements24
of any witness the defendant intends to call at trial. For purposes of this Article: (1)25
"written or recorded statement of a witness" shall mean any audio or audio-video26
recording of an oral statement or interview of a witness, and any statement a witness27
writes or signs; and (2) for the purposes of this Article, "trial" shall mean the phase28
of the case at which the defense responds to the state's attempt to meet its burden as29 HLS 13RS-597 REENGROSSED
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to guilt, and specifically does not extend to pretrial matters or hearings, or to the1
penalty phase in capital prosecutions.2
* * *3
Art. 728. Defense information and other matters not subject to disclosure 4
Except as to scientific or medical reports specifically provided in this5
Chapter, this Chapter does not authorize the discovery or inspection of reports,6
memoranda, notes, or other internal defense documents made by the defendant or his7
attorneys or by agents of the defendant in connection with the investigation or8
defense of the case; or of statements made by the defendant, or by witnesses or9
prospective witnesses to the defendant, his agents or attorneys; or of the names of10
defense witnesses or prospective defense witnesses. any document, notes, or other11
items which contain the mental impressions of any attorney for the defendant or any12
investigator working on behalf of such attorney.13
* * *14
Art. 729.7. Protection of witness identity15
A. Notwithstanding any other provision of law to the contrary, the district16
attorney or the defendant may delete or excise from any information required to be17
disclosed herein any information which identifies a witness if such party believes the18
witness's safety may be compromised by the disclosure. If a party objects to the19
deletion or excision, he must do so by written motion. The court shall maintain the20
deletion or excision if, at an ex parte proceeding which shall be recorded and21
maintained under seal, the party excising or deleting such information makes a prima22
facie showing that the witness's safety may be compromised by the disclosure.23
B. If the information excised by a party includes the substance, or any part24
thereof, of any written or recorded statement of the witness, that party must provide25
the excised substance, or any part thereof, to the other party immediately prior to the26
witness's testimony at the trial.27
C. If a judge finds that the party excising or deleting such information has28
failed to present prima facie proof to support the deletion or excision of information29 HLS 13RS-597 REENGROSSED
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related to a witness, then upon the motion of either party, the court shall order an1
automatic stay of all matters related to the disclosure of information about the2
witness and maintain all proceedings under seal during the time while the moving3
party seeks supervisory review to the appropriate reviewing courts with appellate4
jurisdiction, including the Louisiana Supreme Court.5
D. The rules of evidence shall not be applicable to the ex parte proceedings6
conducted pursuant to this Article.7
Section 2. The provisions of this Act shall be become effective for cases billed or8
indicted on or after January 1, 2014, and shall be given prospective application from its9
effective date, unless the district attorney and the defendant stipulate otherwise in each10
particular case, in writing, on the record.11
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. HLS 13RS-597 REENGROSSED
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(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.
(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. HLS 13RS-597 REENGROSSED
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(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).
(13)Provides for prospective application.
(14)Provides that if a witness preparing a report will be called as an expert, the report
shall contain the witness's area of expertise, his qualifications, a list of materials
upon which his conclusion is based, his opinion, and the reason therefor.
(15)Provides that if either the state or defendant moves for the disclosure of statements
of witnesses, the court shall order the state and defendant to disclose such statements
and to authorize the inspection and copying of any written or recorded statements of
any witnesses intended to be called at trial.
(Amends C.Cr.P. Arts. 716, 717, 718, 719(A), 720, 721, 722, 723, 724, 725, 725.1, and 728;
Adds C.Cr.P. Art. 729.7)
Summary of Amendments Adopted by House
Committee Amendments Proposed by House Committee on Administration of Criminal
Justice to the original bill.
1. Added that expert witness expertise, qualifications, and materials used to reach
a conclusion, his opinion and reasons therefor be exchanged between state and
defense.
2. Added that if either the state or defendant moves for the disclosure of statements
of witnesses, the court shall order the state and defendant to disclose such
statements and to authorize the inspection and copying of any written or recorded
statements of any witnesses intended to be called at trial.