NCJ Number
43420
Journal
Loyola Law Review Volume: 23 Issue: 2 Dated: (SPRING 1977) Pages: 440-457
Date Published
1977
Length
18 pages
Annotation
A PRACTICAL GUIDE TO PRESENT CRIMINAL DISCOVERY PRACTICE IN LOUISIANA WITH COURT DECISIONS AFFECTING CONFESSIONS, BOTH WRITTEN AND ORAL, INCULPATORY STATEMENTS, TANGIBLE EVIDENCE, AND PROSECUTION WITNESSES IS GIVEN.
Abstract
IN STATE V. DORSEY, THE LOUISIANA SUPREME COURT REVERSED THE CONVICTION OF A DEFENDANT WHO HAD BEEN DENIED THE RIGHT TO INSPECT AND COPY HIS WRITTEN CONFESSION. IN 1969 THIS RIGHT WAS EXTENDED TO A VIDEOTAPED CONFESSION. THE STATUS OF ORAL CONFESSIONS AND INCULPATORY STATEMENTS IS SOMEWHAT IN DOUBT DUE TO CONFLICTING DECISIONS. THESE STATEMENTS ARE ESPECIALLY IMPORTANT IN THE CONTEXT OF A MOTION TO SUPPRESS. IT IS SUGGESTED THAT ONE DAY THE SUPREME COURT MAY DECIDE THAT THERE IS NO JUSTIFICATION FOR EXCLUSION OF SUCH STATEMENTS FROM THE DORSEY RULE. IN BRADY V. MARYLAND, THE U.S. SUPREME COURT RULED EXCULPATORY MATERIAL MUST BE DISCLOSED. PRIOR TO BRADY, LOUISIANA COURTS REFUSED TO RECOGNIZE ANY RIGHT TO PRETRIAL DISCOVERY WITH THE EXCEPTION OF THE RIGHT TO COPY A WRITTEN CONFESSION. IN FACT, IN STATE V. HUNTER THE LOUISIANA SUPREME COURT REVERSED A TRIAL COURT ON THE GROUNDS THAT THE JUDGE ALLOWED TOO MUCH PRETRIAL DISCOVERY. THE SITUATION REGARDING PHYSICAL EVIDENCE IS ALSO UNCLEAR BECAUSE LOUISIANA HAS TENDED TO GRANT DISCOVERY BASED ON DUE PROCESS CONSIDERATIONS RATHER THAN ON STANDARD BRADY CRITERIA. IN STATE V. BRUMFIELD, LOUISIANA MADE IT CLEAR THAT IT HAD LITTLE INTENTION OF EXTENDING PRETRIAL DISCLOSURE. SO FAR, PERMISSION HAS BEEN REFUSED FOR PRETRIAL EXAMINATION OF SHOE MUD SCRAPINGS, MUD FROM THE SCENE OF THE CRIME, ANY PLASTER CASTS, PHOTOGRAPHS OR FINGERPRINTS, SAMPLES OF DRUGS, AND GUNS USED. LOUISIANA DEFENDANTS HAVE GENERALLY BEEN UNSUCCESSFUL IN OBTAINING PRETRIAL INFORMATION AS TO STATE WITNESSES. HOWEVER, IF THE PROSECUTION KNOWS A PERSON WHO CAN PROVIDE THE DEFENSE WITH EXCULPATORY INFORMATION, DISCLOSURE IS REQUIRED. A DEFENDANT HAS NO RIGHT TO PRETRIAL DISCOVERY OF A WRITTEN STATEMENT MADE BY PROSECUTION WITNESSES UNLESS OVERRIDING CONSTITUTIONAL PRINCIPLES EXIST. THESE INCONSISTENT DECISIONS HAVE LED TO CONFUSION IN PRETRIAL DISCOVERY PROVISIONS. THE LOUISIANA JUDICIARY HAS STEADFASTLY REFUSED TO EXPAND DISCOVERY ON THE PREMISE THAT CHANGE SHOULD COME FROM THE LEGISLATURE; MEANWHILE, A BILL MANDATING THE RIGHT TO PRETRIAL DISCOVERY WAS DEFEATED BY THE LEGISLATURE. THE SOLE AVENUE OF CHANGE APPEARS TO BE A BROADER APPLICATION OF THE DUE PROCESS CLAUSE BY FEDERAL COURTS. AT PRESENT, THE PROBLEM IS IN THE HANDS OF THE TRIAL JUDGE AND PROSECUTOR.