Investigation Discovery in a Louisiana Criminal Case

1. Investigation &Discovery in a Louisiana Criminal Case Denny LeBoeuf dennylaw@cox.net

2. Getting to defense theory Investigation, leading to more investigation Discovery Look at crime charged, lesser included offenses Look at all defenses including affirmative and mental state

3. Investigating to Theory The government starts with a story. It�s the story of a crime, and it has a victim, and it has a ready-made villain (you guessed it) and heroes: the police who �solved� the crime, the prosecutors who are going to punish the perpetrator, sometimes the righteous citizens who witness or attest to some evidence.

4. Investigating Starts with the Client Sooner the better Contacting the client�s family Be alert to mental health, cognitive concerns

5. Investigating you can do Get all documents Talk to police Talk to state experts: ballistics, firearm identification, fingerprints, coroner Talk to witnesses Go see the physical evidence

6. Motion for Funds for Investigator and Expert Federal and state constitutional right � 14th Amendment due process Ake State v. Ulysses Jones, 707 So. 2d 975 (1998) Right to an investigator: State v. Madison, 345 So.2d 485

7. Ex parte right Part of the State's obligation in providing effective assistance of counsel to indigent defendants is the obligation to provide the indigent defendant's counsel with the basic tools of an adequate defense at no cost to defendant. State v. Touchet, 642 So.2d 1213 (1994)

8. Some Sources of Discovery Constitutional � state and federal State statutes Informal

9. Constitutionally required discovery Kyles v. Whitley 115 S.Ct. 1555 (1995) � right to all FAVORABLE evidence, including impeachment, from any state/govt actor This includes the quality and sufficiency of the police investigation of the crime prosecutors have an affirmative obligation to discover favorable evidence prosecutors must seek fairness and truth, not victory � when in doubt, give it up

10. Theory of the case governs Brady/Kyles evidence in your case may go to competency, the confession, the snitch, the eyewitness, the co-defendant�s deal, the victim�s widow, the prosecution�s history of racism, the judge�s business dealings, the police officer�sbehavior in Katrina, your client�s nightmares � any feature of your theory of the case.

11. CCrP arts 716-723 Police report � not just the gist Statements by your client Reports and exams if used at trial � the testable biological material if DNA Documents and physical evidence Statements of coconspirators, some statements of co-defendants Read the Codes

12. Informal discovery Request: D.A. files witness lists Interviews with co-defendants, witnesses in jail additional case-specific discovery FEMA lists �it only seems fair�

13. Reciprocal discovery Reports of experts IF you will use at trial NOTICE of affirmative defenses

14. Getting to defense theory Investigation, leading to more investigation Discovery Look at crime charged, lesser included offenses Look at all defenses including affirmative and mental state

15. Investigating & Brainstorming Investigation open-ended No idea dismissed out of hand Get your friends in on the act THEORY OF THE CASE