HLS 21RS-428 ORIGINAL
2021 Regular Session
HOUSE BILL NO. 46
BY REPRESENTATIVES JAMES AND JORDAN
Prefiled pursuant to Article III, Section 2(A)(4)(b)(i) of the Constitution of Louisiana.
CRIMINAL/JUSTICE: Provides relative to certain pretrial procedures
1 AN ACT
2To amend and reenact Code of Criminal Procedure Articles 66(A) and (C), 292, 293,
3 294(D), 701(B), (C), and (D)(1)(introductory paragraph) and (3), and 732 and to
4 enact Code of Criminal Procedure Article 734(D), relative to pretrial procedures; to
5 provide relative to the subpoena of a witness to appear before certain persons; to
6 provide relative to appointment of counsel for certain persons; to provide relative to
7 transcripts of preliminary examination proceedings; to provide relative to an order
8 for preliminary examination before and after indictment; to provide relative to
9 subpoenas; to provide relative to service of subpoenas; to provide relative to pretrial
10 motions for speedy trial; to provide relative to the effect of a defendant's motion for
11 speedy trial on certain duties of the state with regard to discovery; to provide relative
12 to the court's authority to suspend or dismiss a pending speedy trial motion; to
13 provide relative to the time period within which a bill of information or indictment
14 is filed; to provide relative to the time period for setting an arraignment; to provide
15 relative to the defendant's bail obligation under certain circumstances; and to provide
16 for related matters.
17Be it enacted by the Legislature of Louisiana:
18 Section 1. Code of Criminal Procedure Articles 66(A) and (C), 292, 293, 294(D),
19701(B), (C), and (D)(1)(intro. para.) and (3), and 732 are hereby amended and reenacted and
20Code of Criminal Procedure Article 734(D) is hereby enacted to read as follows:
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HB NO. 46
1 Art. 66. Subpoena of witness to appear before attorney general, and district attorney,
2 or defense counsel
3 A. Upon written motion of the attorney general, or district attorney, or
4 defense counsel setting forth reasonable grounds therefor, the court may order the
5 clerk to issue subpoenas directed to the persons named in the motion, ordering them
6 to appear at a time and place designated in the order for questioning by the attorney
7 general, or district attorney, or defense counsel respectively, concerning any offense
8 under investigation by him. The court may also order the issuance of a subpoena
9 duces tecum. Service of a subpoena or subpoena duces tecum issued pursuant to this
10 Article upon motion of the attorney general may be made by any commissioned
11 investigator from the attorney general's office, or in conformity with Article 734 of
12 this Code. Subpoenas to appear before defense counsel on behalf of an arrested
13 person shall only be issued after an arrest has been made.
14 * * *
15 C. The attorney general, or district attorney, or defense counsel, respectively,
16 may determine who shall be present during the examination and may order all
17 persons excluded, except counsel for the person subpoenaed.
18 * * *
19 Art. 292. Order for preliminary examination before and after indictment
20 A. The court, on request of the state or the defendant, shall immediately
21 order a preliminary examination in felony cases unless the defendant has been
22 indicted by a grand jury.
23 B. After the defendant has been indicted by a grand jury, the court may
24 rescind its order for a preliminary examination unless the defendant has preserved
25 his request for a preliminary examination in writing prior to indictment.
26 C. An order for a preliminary examination in felony cases may be granted
27 by the court at any time, either on its own motion or on request of the state or of the
28 defendant before or after the defendant has been indicted by a grand jury.
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HB NO. 46
1 Art. 293. Time for examination; procurement of counsel
2 When a preliminary examination is ordered, the court shall conduct the
3 examination promptly but shall allow the defendant a reasonable time to procure
4 counsel. If the arrested person is determined to be indigent pursuant to R.S. 15:175,
5 the court shall appoint counsel to represent him at the preliminary examination.
6 Art. 294. Examination of witnesses; transcript of testimony
7 * * *
8 D. Upon motion of the state or the defendant, a transcript of the preliminary
9 examination proceedings may be made and shall be promptly provided to the state
10 or defense counsel. The cost of the transcript preparation under this Paragraph shall
11 be paid by the party making the motion, unless the party is an indigent defendant.
12 * * *
13 Art. 701. Right to a speedy trial
14 * * *
15 B. The time period for filing a bill of information or indictment after arrest
16 shall be as follows:
17 (1)(a) When Except as provided in Subsubparagraph (b) of this
18 Subparagraph, when the defendant is continued in custody subsequent to an arrest,
19 an indictment or information shall be filed within forty-five five days of the arrest
20 if the defendant is being held for a misdemeanor and within sixty days of the arrest
21 if the defendant is being held for a felony.
22 (b) When the defendant is continued in custody subsequent to an arrest for
23 a felony for which punishment may be death or life imprisonment, an indictment
24 shall be filed within one hundred twenty thirty days of the arrest if the defendant is
25 being held for a felony for which the punishment may be death or life imprisonment.
26 (c) If the state fails to institute prosecution as provided in this Subparagraph,
27 the court shall order the release of the defendant.
28 (2)(a) When Except as provided in Subsubparagraph (b) of this
29 Subparagraph, when the defendant is not continued in custody subsequent to arrest,
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HB NO. 46
1 an indictment or information shall be filed within ninety thirty days of the arrest if
2 the defendant is booked with a misdemeanor and one hundred fifty days of the arrest
3 if the defendant is booked with a felony.
4 (b) When the defendant is not continued in custody subsequent to arrest for
5 a felony for which punishment may be death or life imprisonment, an indictment
6 shall be filed within sixty days of the arrest.
7 (b)(c) Failure to institute prosecution as provided in Subparagraph (1) of this
8 Paragraph shall result in release of the defendant if, after contradictory hearing with
9 the district attorney, just cause for the failure is not shown. If just cause is shown,
10 the court shall reconsider bail for the defendant. Failure to institute prosecution as
11 provided in this Subparagraph shall result in the release of the bail obligation of the
12 defendant if, after contradictory hearing with the district attorney, just cause for the
13 delay is not shown.
14 C.(1) Upon When the defendant is in custody upon the filing of a bill of
15 information or indictment, the district attorney shall set the matter for arraignment
16 within thirty seven days, exclusive of holidays, unless just cause for a longer delay
17 is shown. If no just cause for the delay is shown, the defendant shall be released.
18 (2) When the defendant is not in custody upon the filing of a bill of
19 information or indictment, the district attorney shall set the matter for arraignment
20 within thirty days, exclusive of holidays, unless just cause for a longer delay is
21 shown. If no just cause for the delay is shown, the defendant shall be relieved of his
22 bail obligation.
23 D.(1) A motion by the defendant for a speedy trial, in order to be valid, must
24 be accompanied by an affidavit by defendant's counsel certifying that the defendant
25 and his counsel are prepared to proceed to trial within the delays set forth in this
26 Article. A defendant's motion for speedy trial does not relieve the state of its duty
27 to provide the defendant with any evidence constitutionally required to be disclosed
28 pursuant to Brady v. Maryland, 373 U.S. 83 (1963) and its progeny, nor does it
29 relieve the state of its duty to provide previously requested discovery pursuant to
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HB NO. 46
1 Code of Criminal Procedure Article 716 et seq. Except as provided in Subparagraph
2 (3) of this Paragraph, after the filing of a motion for a speedy trial by the defendant
3 and his counsel, the time period for commencement of trial shall be as follows:
4 * * *
5 (3) After a motion for a speedy trial has been filed by the defendant, if the
6 defendant files any subsequent motion which requires a contradictory hearing, except
7 for motions relating to the state's duty to provide the defendant with any evidence
8 constitutionally required to be disclosed pursuant to Brady v. Maryland, 373 U.S. 83
9 (1963) and its progeny, motions relating to previously invoked rights to discovery
10 pursuant to Code of Criminal Procedure Article 716 et seq., motions in limine
11 regarding the presentation of evidence at trial, motions for jury instructions, and
12 other motions that do not necessitate a delay in the commencement of the trial
13 beyond the dates set forth in Paragraph D of this Article, the court may suspend, in
14 accordance with Article 580, or dismiss upon a finding of bad faith the pending
15 speedy trial motion. In addition, the period of time within which the trial is required
16 to commence, as set forth by Article 578, may be suspended, in accordance with
17 Article 580, from the time that the subsequent motion is filed by the defendant until
18 the court rules upon such motion.
19 * * *
20 Art. 732. Subpoena duces tecum
21 A subpoena may order a person to produce at the trial or hearing, including
22 a preliminary examination, books, papers, documents, or any other tangible things
23 in his possession or under his control, if a reasonably accurate description thereof is
24 given; but the court shall vacate or modify the subpoena if it is unreasonable or
25 oppressive. A subpoena may be issued at the request of defense counsel or the state
26 at any point after a defendant has been initially arrested for a charge, even if the state
27 has not yet instituted prosecution by filing a bill of information or indictment and if
28 the defendant is subsequently released.
29 * * *
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HB NO. 46
1 Art. 734. Service of subpoena by sheriff; investigators
2 * * *
3 D. Upon motion of an arrested person, the court shall appoint a person over
4 the age of majority, who is not a party and who is residing within the state whom the
5 court deems qualified to perform the duties required, to make service of process in
6 the same manner as is required of sheriffs. Service of process made in this manner
7 shall be proved as any other fact in the case.
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)]
HB 46 Original 2021 Regular Session James
Abstract: Provides relative to certain pretrial procedures including issuance of subpoenas,
appointment of counsel for certain persons, motions to obtain transcripts of
preliminary examination proceedings, orders for preliminary examination, service
of subpoenas by sheriffs; and provides relative to the time period within which a bill
of information or indictment is filed, the time period for setting an arraignment, the
release or reconsideration of the defendant's bail obligation under certain
circumstances, and other procedures relative to the right to a speedy trial.
Present law (C.Cr.P. Art. 66) provides that upon written motion of the attorney general or
district attorney setting forth reasonable grounds, the court may order the clerk to issue
subpoenas directed to the persons named in the motion, ordering them to appear at a time
and place designated in the order for questioning by the attorney general or district attorney,
concerning any offense under investigation by him. Further authorizes the court to order the
issuance of a subpoena duces tecum.
Proposed law provides that defense counsel may also give written motion to the court to
order the clerk to issue subpoenas to persons named in the motion to appear for questioning.
Further provides that defense subpoenas on behalf of an arrested person shall only be issued
after an arrest is made.
Present law authorizes the attorney general or district attorney to determine who shall be
present during the examination.
Proposed law adds defense counsel to those eligible to determine who shall be present during
the examination.
Present law (C.Cr.P. Art. 292) provides that after the defendant has been indicted by a grand
jury, the court may rescind its order for a preliminary examination.
Proposed law retains present law but provides that a defendant can preserve his request for
a preliminary examination in writing prior to indictment.
Present law (C.Cr.P. Art. 293) provides that when a preliminary examination is ordered, the
court is required to conduct the examination promptly but shall allow the defendant a
reasonable time to procure counsel.
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HB NO. 46
Proposed law provides that if the arrested person is determined to be indigent pursuant to
present law, the court is required to appoint counsel to represent him at the preliminary
examination.
Present law (C.Cr.P. Art. 294) provides that upon motion of the state or the defendant, a
transcript of the preliminary examination proceedings may be made. The cost of the
transcript preparation shall be paid by the party making the motion, unless the party is an
indigent defendant.
Proposed law retains present law and requires that a copy of the preliminary examination
proceedings be promptly provided to the state or defense counsel upon written motion.
Present law (C.Cr.P. Art. 701) provides that the time period for filing a bill of information
or indictment after arrest is as follows:
(1)When the defendant is continued in custody subsequent to an arrest, an indictment
or information shall be filed within 45 days of the arrest if the defendant is being
held for a misdemeanor and within 10 days of the arrest if the defendant is being held
for a felony.
(2)When the defendant is continued in custody subsequent to an arrest, an indictment
shall be filed within 120 days of the arrest if the defendant is being held for a felony
for which the punishment may be death or life imprisonment.
(3)When the defendant is not continued in custody subsequent to arrest, an indictment
or information shall be filed within 90 days of the arrest if the defendant is booked
with a misdemeanor and 150 days of the arrest if the defendant is booked with a
felony.
Proposed law amends present law as follows:
(1)When the defendant is continued in custody subsequent to an arrest, decreases the
time period within which an indictment or information shall be filed to within five
days of the arrest regardless of whether the defendant is being held for a
misdemeanor or for a felony.
(2)When the defendant is continued in custody subsequent to an arrest for a felony for
which the punishment may be death or life imprisonment, decreases the time period
within which an indictment shall be filed from within 120 days of arrest to within 30
days of the arrest.
(3)When the defendant is not continued in custody subsequent to arrest, decreases the
time period within which an indictment or information shall be filed to within 14
days of the arrest regardless of whether the defendant is booked with a misdemeanor
or felony.
(4)Adds that when the defendant is not continued in custody subsequent to arrest for a
felony for which punishment may be death or life imprisonment, an indictment shall
be filed within 60 days of the arrest.
Present law provides that when the defendant is continued in custody subsequent to arrest,
failure to institute prosecution as provided in present law shall result in release of the
defendant if, after contradictory hearing with the district attorney, just cause for the failure
is not shown. If just cause is shown, present law requires the court to reconsider bail for the
defendant.
Proposed law amends present law to remove the requirement that a contradictory hearing be
held prior to ordering the release of the defendant.
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Present law provides that when the defendant is not continued in custody subsequent to
arrest, failure to institute prosecution as provided in present law shall result in the release of
the bail obligation if, after contradictory hearing with the district attorney, just cause for the
delay is not shown.
Proposed law retains present law.
Present law provides that upon filing of a bill of information or indictment, the district
attorney shall set the matter for arraignment within 30 days unless just cause for a longer
delay is shown.
Proposed law amends present law to provide:
(1)When the defendant is in custody upon the filing of a bill of information or
indictment, the district attorney shall set the matter for arraignment within seven
days, exclusive of holidays, unless just cause for a longer delay is shown. If no just
cause for the delay is shown, the defendant shall be released.
(2)When the defendant is not in custody upon the filing of a bill of information or
indictment, the district attorney shall set the matter for arraignment within 30 days,
exclusive of holidays, unless just cause for a longer delay is shown. If no just cause
for the delay is shown, the defendant shall be relieved of his bail obligation.
Present law provides that after a motion for a speedy trial has been filed by the defendant,
if the defendant files any subsequent motion which requires a contradictory hearing, the
court may suspend or dismiss upon a finding of bad faith the pending speedy trial motion.
Proposed law amends present law to provide that certain preliminary motions which require
a contradictory hearing are not grounds for which the court may suspend or dismiss a
pending speedy trial motion. Such motions include but are not limited to motions relating
to the state's duty to provide the defendant with any evidence constitutionally required to be
disclosed pursuant to Brady v. Maryland, 373 U.S. 83 (1963) and its progeny, motions
relating to previously invoked rights to discovery pursuant to present law, motions in limine
regarding the presentation of evidence at trial, motions for jury instructions, and other
motions do not necessitate a delay in the commencement of the trial beyond the dates set
forth in present law.
Proposed law provides that a defendant's motion for speedy trial does not relieve the state
of its continued burden to comply with the holding in the case Brady v. Maryland, 373 U.S.
83 (1963) and its progeny, nor does it relieve the state of its duty to provide previously
requested discovery pursuant to present law.
Present law (C.Cr.P. Art. 732) provides that a subpoena may order a person to produce at the
trial or hearing, books, papers, documents, or any other tangible things in his possession or
under his control, if a reasonably accurate description is given.
Proposed law provides that the subpoena may also order a person to produce books, papers,
documents, or any other tangible things in his possession or under his control at a
preliminary examination. Further provides that a subpoena may be issued at the request of
defense counsel or the state at any point after a defendant has been initially arrested for a
charge, even if the state has not yet instituted prosecution by filing a bill of information or
indictment and if the defendant is subsequently released.
Present law (C.Cr.P. Art. 734) provides that the sheriff of any parish in which the witness
may be found or of the parish in which the proceeding is pending shall serve the subpoena
and make return thereof without delay.
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Proposed law provides that upon motion of an arrested person, the court shall appoint a
person over the age of majority, who is not a party and who is residing within the state
whom the court deems qualified to perform the duties required, to make service of process
in the same manner as is required of sheriffs. Service of process made in this manner shall
be proved as any other fact in the case.
(Amends C.Cr.P. Arts. 66(A) and (C), 292, 293, 294(D), 701(B), (C), and (D)(1)(intro. para.)
and (3), and 732; Adds C.Cr.P. Art. 734(D))
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