Fill and Sign the Motion for Discovery of Information Regarding State Experts

IN THE CIRCUIT COURT OF_________ COUNTY, ____________ NAME OF PLAINTIFF )       ) ) V. ) NO. ) ) NAME OF DEFENDANT )       ) ) MOTION FOR DISCOVERY OF INFORMATION REGARDING STATE EXPERTS COMES NOW, ________________, by counsel, and moves this Court pursu ant to the Fourth, Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution, Article ______, Sections ______ of the __________ Constitution, and Rule 4.06, Miss. Unif. Crim. R. , to order discovery regarding the expert testing and examinations which have apparently been performed in this case. In support of his motion, ________________ states as follows: 1. In theory, Rule 4.06, Miss. Unif. Crim. R. Cir. Ct. , is an excellent concept. It would be pleasant to think that the Supreme Court's words rang true: "Without doubt, the days of trial by ambush should be put behind us once and for all." Barnes v. State , 471 So.2d 1218, 1222 (Miss. 1985). In an effort to bring Rule 4.06 to fruition, the Supreme Court has previ ous ly asked and an swered the question: Is the State attorney the only person who will make that determi - nation [of the evidence of which the defense will receive notice]? We think not. The Court now declares that as a matter of good practice and sound judgment in the trial of criminal cases, pros - ecuting at tor neys should make available to attorneys for defendants all such material in their files and let the de fense attorneys determine wheth er or not it is useful in the defense of the case. We direct the attention of trial judges to this problem and suggest that they dili gently imple ment this suggestion in order to dis pense with costly errors. . . . Hentz v. State , 489 So.2d 1386, 1388 (Miss. 1986) (citing cases). Four years later, the Court still finds itself asking the same question. Welch v. State , 566 So.2d 680 (Miss. 1990). 2. Over and over, in between whiles, the Court has found it necessary to remand cases for second or third trials because the prosecution has failed to comply with the rules governing discov ery. See , e.g. , Cousan v. State , 543 So.2d 177 (Miss. 1989); Moore v. State , 536 So.2d 909 (Miss. 1988); Inman v. State , 515 So.2d 1150 (Miss. 1987); Stewart v. State , 512 So.2d 889 (Miss. 1987); Robinson v. State , 508 So.2d 1067 (Miss. 1987); Cooley v. State , 495 So.2d 1362 (Miss. 1986); Thomas v. State , 488 So.2d 1343 (Miss. 1986); Foster v. State , 484 So.2d 1009 (Miss. 1986); Henry v. State , 484 So.2d 1012 (Miss. 1986); McKinney v. State , 482 So.2d 1129 (Miss. 1986); Barnes v. State , 460 So.2d 126 (Miss. 1984); Morris v. State , 436 So.2d 1381 (Miss. 1983); Jackson v. State , 426 So.2d 405 (Miss. 1983); Jones v. State , 330 So.2d 597 (Miss. 1976). 3. ___________ therefore requests prompt discovery of all the items listed below, as well as such other discoverable materials not requested by specific designation. If the discov ery is less than prompt, he cannot be expected to prepare for trial. His requests are predicated on the United States Consti tution, as well as upon Rule 4.06 . See , e.g. , Brady v. Mary - land , 373 U.S. 83 (1963); Napue v. Illinois , 360 U.S. 264 (1959); Giles v. Mary land , 386 U.S. 66 (1967); Davis v. Alaska , 415 U.S. 308 (1974); United States v. Pitt , 717 F.2d 1334 (11th Cir. 1983). 4. The prosecution must actively seek out information, which is in the hands of other governmental agencies, especially when there is a specific request. As the Fifth Circuit held in Freeman v. Georgia , 599 F.2d 65 (5th Cir. 1979), the actions or inactions of one governmental actor must be imputed to another: The duty of disclosure is that of the state, which ordinarily acts through the prosecuting attorney; but if he too is the victim of police suppression of the material informa tion, the state's failure is not on that ac count excused. Id. at 70 (quoting Barbee v. Warden , 331 F.2d 842 (4th Cir. 1964)); accord Schneider v. Estelle , 552 F.2d 593 (5th Cir. 1971); Smith v. Florida , 410 F.2d 1349, 1351 (5th Cir. 1969); Royal v. Dutton , 392 U.S. 544 (5th Cir. 1968); Jackson v. Wain wright , 390 F.2d 288, 296 (5th Cir. 1968). 5. Definition of Terms: As used in the following demands for discovery, _______________ intends the following terms to be construed in their normal, everyday use, and to include the definition included below: (a) Records : "Records" shall include, but not be limited to, all documents, memoranda and writing, and shall also include memorializations (which may have to be created for purposes of this discovery demand) of oral communications relating to the discovery requested. (b) State actor : "State actor" shall include, but not be limited to, any person who works for, or performed a task of any kind for, any __________ District Attor ney's Office; any prosecutor's officer (state or federal) with relevant information in the United States; any Sheriff's Department; any Police Department; any other law enforcement agency, state or federal; any Crime Laboratory; any State Hospital; any hospital; any physician; any laboratory technician; other state agency, includ ing but not limited to the Board of Pardons & Parole, the __________ Department of Corrections, and the __________ Highway Pa trol. (c) Technician : "Technician" shall include any person employed in any way at the __________ State Crime Laborato ry, or employed at any other forensic facility which was consulted on this case, who was involved in any manner with the testing and preservation of the particular evidence being discussed in this motion. 6. _________________ demands a full recitation of who had anything to do with the testing 7. Additionally, "experts" routinely seek to sandbag defense counsel by stating that someone else at the lab looked over their shoul der during the testing of the sample, and checked the proce dures and the results. _______________ will have no such absent witness "tes ti fy" in his case, and hereby demands a list of all personnel who were involved in the procedures any lab in any manner at all. _________________ therefore demands the follow ing infor ma tion as soon as may be practicable: 8. Copies of all laboratory notes taken in the course of this testing, with the opportunity to examine the originals. 9. Copies of all other document, photographs, diagrams or records of any kind which were created in the course of this testing, or which arose out of this testing in any manner, with the opportunity to examine the originals. 10. Copies of the relevant portions of all laboratory books utilized by any Lab, which relate in any manner to serologi cal testing, with the opportunity to examine the originals. 11. Copies of quality control tests run on materi al uti lized. 12. A description of all-replicate testing performed by any Laboratory in this case. 13. A description of the replicate testing practices uti lized in serological work by any Laboratory in forensic cases. 14. Copies of reports by the testing laboratory issued to the propo nent. 15. A writ ten report by the testing laborato ry setting forth the method used to de - clare a match or non-match among enzymes. 16. A statement setting forth observed contami nants, the rea sons there fore, and tests performed to determine the origin and the effects thereof. 17. A statement setting forth the tests performed to deter mine the effects of degradation on the sample, and the results thereof. 18. A statement set ting forth any other ob served defects or laborato ry errors, the rea sons there for and the effects there of. 19. Chain of custo dy docu ments. 20. A copy of the data pool for each enzyme examined. 21. Proof from the testing technician that the same rule used to declare a match was used to determine the enzyme frequen cy in the popula tion. 22. All available information in the possession of, or known to, any Laboratory which relates in any manner to any blind testing procedures performed by the Law Enforce ment Assistance Adminis tration (L.E.A.A.), the Federal Bureau of Investigation (F.B.I.) or any other body which has conducted proficiency testing in which the Laboratory has taken part. 23. The code number or name uti lized by the Laboratory in any blind testing procedures performed by the Law Enforcement Assistance Administration (L.E.A.A.), the Federal Bureau of Investigation (F.B.I.) or any other body which has conducted proficiency testing in which the Laboratory has taken part. 24. A description of the Laborator y's standard operating procedures regarding the preservation of serological evidence in the year of the testing, as well as a copy of any laboratory manual which related to these standards. 25. A description of the Laborator y's standard operating procedures regarding the preservation of serological evidence in ____, as well as a copy of any laboratory manual which relates to these standards. 26. A description of the manner in which the serologi cal evidence has been preserved in this case since the crime alleged herein. 27. ____________________ specifically demands a resumé from the technicians involved in the case, which should include, but not be limited to, reference to the following: (a) All the technician's educational background, in clud ing high school to the present. (b) The subject, date and location of all courses or seminars attended by the technician since his or her first em ployment as a forensic technician or agent, including all written, taped or videotaped materials which were given out or made avail able at these courses or semi nars (or, if the technician does not have the materials, the best informa tion he or she can pro vide as to how counsel can secure the mate ri als). (c) The subject, date and location of all presenta - tions given by the technician since his or her first employ - ment as a forensic technician or agent, including all writ - ten, taped or videotaped materials which were created, given out or made avail able at these presentations (or, if the Agent does not have the materials, the best informa tion he or she can pro vide as to how counsel can secure the materi - als). (d) The subject, date, location and results of all proficiency tests in which the technician has partici pat ed with respect to work. This should include any test ing with respect to eyesight, color-blindness, etc., which has been performed on the technician. (e) The technician's personnel file, to the extent it re flects any comments, criticism and evaluation of the tech nician's performance on the job. 29. Any other information, which may be helpful to the defense regarding any other Crime Lab tech nician who has been, or will be, involved in this case. Respectfully submitted, ______________________ ______________________ ______________________ Attorney for Defendant CERTIFICATE I, _______________, do hereby certify that I have on this day delivered, by hand, a true and correct copy of the foregoing Motion to _________________________ This _____ day of __________ ____. Respectfully submitted, _____________________________