Case Law Update: 2011-2014 Cumulative Edition

Facts: Defendant was charged with trafficking drugs found in a truck he was driving. He claimed that he had borrowed the truck. Two days before trial was to begin, the State disclosed documents allegedly showing that Defendant had previously been arrested, and the documents (which included mug shots, fingerprints and other information) would establish that Defendant owned the truck. Defense counsel moved to exclude the evidence or in the alternative a continuance. Counsel claimed that if he had known of this late-disclosed evidence, he may not have taken the case to trial, and also that he needed additional time to try to rebut the evidence in that he had not been able to contact an attorney associated with the prior arrest, had not been able to contact the prior arresting officer to rebut the evidence, and had not been able to rebut the newly disclosed fingerprint evidence.

Holding: Rules 25.03(A)(1) and (6) require the State to disclose the names and addresses of witness it intends to call, along with their statements, and any papers belonging to Defendant which the State intends to introduce. The relevant records here were not provided to defense counsel until two days before trial, which left just one day to investigate them. This violated the Rule and prejudiced the defense because the defense could not find the attorney associated with the prior case, could not contact the arresting officer from the prior case, and could not test the new fingerprint evidence in the one-day before trial. Regarding documents contained in Defendant’s wallet at the time of his arrest, the State argues that since they belonged to the Defendant, he knew about them. But the Rule specifically requires disclosure of such documents. It is one thing for a defendant to know of incriminating documents; it is quite another for him to know that the State possesses the documents and intends to introduce them.
State ex rel. Jackson County Prosecuting Attorney v. Prokes, No. WD72996 (Mo. App. W.D. 12/20/11):

Where State engaged in repeated Brady violations and failed to comply with court order for discovery, trial court did not err in excluding all the State’s evidence from any trial.

Facts: Defendant’s case had previously been reversed in postconviction due to Brady violations. Before retrial, the court entered a detailed discovery order, with which the State failed to comply. As a sanction, the trial court entered an order excluding all evidence from trial, which effectively prevented the State from trying the case. The State sought a writ of prohibition.

Holding: In order to prevail on a writ, the State must show that the trial court’s order was an abuse of discretion. Because the original conviction was reversed due to Brady violations, the trial court entered a detailed discovery order for the retrial, with which the State repeatedly failed to comply. Where the State has failed to respond promptly and fully to a disclosure request, the issue is whether the failure has resulted in fundamental unfairness or prejudice to the defendant. Rule 25.18 provides that a court may “enter such other order as it deems just under the circumstances” for discovery violations. Here, the State’s discovery violations have gone on for more than 10 years. The State has continued to delay discovery, object to discovery, and failed to comply with court orders regarding discovery. Defendant has been subjected to fundamental unfairness and prejudice because he is no closer to receiving a fair trial than he was when he was charged more than 10 years ago. Willful violations require more serious sanctions than merely negligent violations because the willful violation shows an intentional disregard for the rules and orders of the court. The dissent argues that prior cases have held that due process concerns mean that a court should be cautious in excluding defense witnesses due to a discovery violation, but due process concerns do not apply to the State precisely because the State does not have due process rights. The dissent also argues that Missouri citizens are prejudiced here because the Defendant will not be brought to trial. However, the citizens have been prejudiced by the prosecutor’s misconduct throughout the case. The “balancing test” employed by the dissent is predisposed to an outcome in favor of the State based on the improper assumption that the State’s overriding interest should be to prosecute and convict Defendant, but such is not the case. The prosecutor has a duty not to convict at any cost, but to see that justice is done and that a defendant receives a fair and impartial trial. The trial court did not abuse its discretion in excluding all the State’s evidence.
* Skinner v. Switzer, ___ U.S. ___, 88 Crim. L. Rep. 683 (U.S. 3/7/11):

Holding: Prisoner can use 42 USC Sec. 1983 to obtain access to evidence for DNA testing after a conviction.
U.S. v. Treacy, 88 Crim. L. Rep. 818, 2011 WL 799781 (2d Cir. 3/9/11):

Holding: The standard for civil cases also applies to criminal cases for overcoming the journalist’s privilege against the disclosure of nonconfidential information; movant is entitled to discovery if he can demonstrate that the material at issue is of likely relevance to a significant issue in the case and not reasonably available from other sources.
Han Tak Lee v. Glunt, 2012 WL 247993 (3^rd Cir. 2012):

Holding: Federal habeas petitioner, convicted of first-degree murder and arson, satisfied the good cause standard for conducting discovery in that his petition relied upon scientific developments since his trial and that his expert’s independent analysis of the fire scene would invalidate the expert testimony from the trial.
U.S. v. Llanez-Garcia, 94 Crim. L. Rep. 205 (6^th Cir. 11/5/13):

Holding: Attorney should not have been sanctioned for abuse of subpoena power where there was no evidence attorney acted in “bad faith,” but instead relied on her interpretation of an arguably ambiguous criminal procedural rule regarding service of subpoenas; attorney issued a Rule 17(c) subpoena to records custodians to produce materials or appear in court on June 3; the problem was there was no court hearing scheduled on June 3; Rule 17(c)(1) states that courts “may direct” the production of materials before they are offered into evidence, and attorney believed the use of the term “may” does not require advance court approval.
Lambright v. Ryan, 92 Crim. L. Rep. 114 (9^th Cir. 10/17/12):

Holding: Since the waiver of attorney-client privilege that occurs when a Movant files an ineffectiveness claims is narrow, a court must enter a protective order stating the contours of the limited waiver before commencement of discovery and must strictly police the limits to discovery.
U.S. v. Carmen, 92 Crim. L. Rep. 15 (9^th Cir. 9/14/12):

Holding: If Gov’t deports an alien-witness who has exculpatory information before defense counsel has an opportunity to interview witness, this denies Defendant the right to present a complete defense.
U.S. v. Business of Custer Battlefiled Museam and Store Located on Interstate 90, 90 Crim. L. Rep. 71 (9^th Cir. 9/30/11):

Holding: Where official investigation has ended, public has right to access materials filed in support of search warrant.
Pickard v. Dept. of Justice, 89 Crim. L. Rep. 690 (9^th Cir. 7/27/11):

Holding: After a drug informant has been identified in court, the DEA cannot refuse to provide records about the informant under Freedom of Information Act.
World Publishing Co. v. Department of Justice, 90 Crim. L. Rep. 718 (10^th Cir. 2/22/12):

Holding: A Freedom of Information Act request seeking mug shots from the U.S. Marshals Service was properly rejected as an “unwarranted invasion” of the subject’s personal privacy.
Roth ex rel. Bower v. Dept. of Justice, 89 Crim. L. Rep. 621 (D.C. Cir. 6/28/11):

Holding: Death-sentenced Defendant is entitled to use FOIA to obtain records from FBI showing he is innocent; claim of innocence outweighs privacy rights of third parties mentioned in FBI investigative records.
In re Special Proceedings, 2012 WL 386471 (D.D.C. 2012):

Holding: The First Amendment compelled disclosure of a report on an investigation of alleged prosecutorial misconduct during the corruption trial of a United States senator.
Wilkey v. U.S., 2010 WL 4340833 (D.C. 2010):

Holding: Defendant seeking to challenge jury selection methods may get discovery of jury materials without a threshold showing that there is a reason to believe discovery will show a statutory or constitutional violation.
U.S. v. Loughner, 2011 WL 1705865 (D. Ariz. 2011):

Holding: Bureau of Prisons’ intake assessment records of Defendant (including psych reports) were generated pursuant to routine prison protocols and were not barred from disclosure by either the doctor-patient privilege or the 5^th or 6^th Amendment because the records were not intended for diagnosis or treatment.
U.S. v. Sellars, 2011 WL 2671510 (D. Nev. 2011):

Holding: Indigent defendant can make ex parte application for pretrial subpoena duces tecum.
Pizzuti v. U.S., 2011 WL 3652293 (S.D. N.Y. 2011):

Holding: On their motions to vacate, set aside, or correct their sentences, defendants were entitled to all FBI reports concerning witnesses, as well as an explanation for any differences between the disclosed documents and the documents actually used at trial.
U.S. v. Edwards, 2011 WL 1454077 (E.D. N.C. 2011):

Holding: Brady v. Maryland applies to SVP proceedings.
U.S. v. Salad, 2011 WL 1541358 (E.D. Va. 2011):

Holding: Gov’t had a duty to produce a boat used in the offense for inspection by the defense under discovery rules, even though Gov’t planned to turn the boat back over to its owners soon.
People v. Gonzales, 92 Crim. L. Rep. 787 (Cal. 3/18/13):

Holding: Even though Defendant was seeing a therapist as a condition of his parole, the statutory doctor-patient privilege applied and State could not obtain the therapy records to use in SVP proceeding against Defendant.
Catlin v. Superior Court, 2011 WL 240253 (Cal. 2011):

Holding: Court cannot deny as “untimely” a motion for postconviction discovery of materials to which Defendant would have been entitled at time of trial.
Oliver v. State, 2013 WL 427236 (Del. 2013):

Holding: Granting 24-hour recess during trial to allow defense counsel to be able to review forensic reports which State had failed to disclose was not an appropriate sanction for State’s non-disclosure before trial, since defense counsel would not have time to adequately prepare for cross-examination of the highly technical information or be able to consult with their own forensic expert.
Ulloa v. CMI, Inc., 2013 WL 5942299 (Fla. 2013):

Holding: Criminal Defendant wishing to obtain documents held by a non-party in another State must use the Uniform Law to Secure Attendance of Witnesses by subpoenaing the out-of-state nonparty, rather than serve the in-state registered agent of the nonparty.
Wyatt v. State, 2011 WL 2652195 (Fla. 2011):

Holding: FBI letters created after trial that said that an expert on bullet lead analysis testified beyond the science were “newly discovered” evidence.
Corona v. State, 89 Crim. L. Rep. 477 (Fla. 6/9/11):

Holding: A defense discovery deposition of a prosecution witness at which Defendant was not present does not provide an opportunity for cross-examination that is sufficient to satisfy the Confrontation Clause.
People v. Kladis, 2011 WL 6851169 (Ill. 2011):

Holding: State’s allowance of destruction of videotape of defendant’s traffic stop was a discovery violation, and the trial court did not abuse its discretion by barring the arresting officer from testifying about events which occurred during the time period of the videotape as a sanction for the state’s actions.
Grady v. Com., 88 Crim. L. Rep. 253 (Ky. 11/18/10):

Holding: Prosecutor’s inability to produce records of pretrial lineup creates a rebuttal presumption that the lineup was unduly suggestive.
Com. v. Carney, 88 Crim. L. Rep. 349, 2010 WL 4948559 (Mass. 12/8/10):

Holding: Punitive monetary sanctions against a party are not appropriate for a discovery violation; such sanctions are limited to remedial measures aimed at curing prejudice and promoting fair trial.
Freeman v. State, 93 Crim. L. Rep. 362 (Miss. 5/30/13):
Holding: State’s failure to preserve evidence that is subject to a court’s discovery order violated Defendant’s due process right to present a defense and entitled him to judgment in his favor regardless of whether State acted in bad faith; here, the defense had been granted an order to preserve all evidence, but state later destroyed a video of the DWI traffic stop.
State v. Scoles, 93 Crim. L. Rep. 400 (N.J. 6/13/13):

Holding: Defense lawyers defending child pornography cases are entitled to view copies of seized computer images at their own workplace provided counsel’s office is equipped to comply with a protective order designed to block further dissemination of the images; forcing defense counsel to view images only at Prosecutor’s office is too restrictive in view of the meaningful role that disclosure of evidence to a defendant has in promoting the search for truth (disagreeing with approach taken in Adam Walsh Act).
State v. W.B., 2011 WL 1573862 (N.J. 2011):

Holding: An appropriate sanction is warranted when police fail to preserve police notes as required by a rule.
State v. Bray, 2012 WL6005708 (Or. 2012):

Holding: Even though state constitution gives victims the right to refuse discovery requests from a criminal defendant, court could order rape victim’s computer hard drive to be preserved as potential evidence.
Com. v. Harris, 90 Crim. L. Rep. 324 (Pa. 11/23/11):

Holding: Under Penn. law, orders requiring disclosure of privileged information are immediately appealable despite contrary decision in Mowhawk Industries v. Carpenter, ___ U.S. ___ (U.S. 2009).
Town of Mt. Pleasant v. Roberts, 2011 WL 2682407 (S.C 2011):

Holding: Where statute required that police cars be equipped with video but Town refused to buy enough cameras for its police cars, this was not a valid reason for failure to produce a video of a DWI traffic stop.
Koenig v. Thurston County, 92 Crim. L. Rep. 59 (Wash. 9/27/12):

Holding: Crime victim’s impact statement is a public record under state Sunshine Law, and is not exempt from disclosure under the “investigative records exception.”
Rivera-Longoria v. Slayton, 2010 WL 4102906 (Ariz. Ct. App. 2010):
Holding: A prosecutor’s withdrawal of plea offer was a “deadline” under state rule that prohibited introduction of evidence not disclosed before “deadline”; purpose of rule was to ensure that Defendant had all discovery before making a decision on plea bargain.
In re Marcos B., 2013 WL 856637 (Cal. App. 2013):

Holding: Court abused its discretion in applying “public interest privilege” to not require Officer to reveal the location from which he observed juvenile Defendant’s alleged conduct; the court had no basis to determine that revealing the surveillance location would harm future surveillance or officer safety.
Rezek v. Supreior Court, 141 Cal. Rptr. 3d 891 (Cal. App. 2012):

Holding: Even though three eyewitness statements of the crime at issue had been placed in Officers’ personnel files as part of an internal affairs investigation, Defendant was entitled to court’s in camera review of them for discovery purposes since Defendant’s constitutional right for disclosure of favorable evidence outweighed Officer’s privacy interest in personnel files.
Magallan v. Superior Court, 2011 WL 658651 (Cal. App. 2011):

Holding: Judge had power to grant discovery to prepare for motion to suppress hearing, and not just to prepare for trial.
People v. Corson, 2013 WL 174450 (Colo. App. 2013):

Holding: Juvenile adjudication of a Witness is required to be disclosed as Brady impeachment material.
Zimmerman v. State, 2013 WL 2449591 (Fla. App. 2013):

Holding: Defendant’s attorney was entitled to depose the attorney for the murder victim’s family about an interview attorney conducted with Witness because attorney was not an “opposing counsel” for the state, the deposition would not violate work product privilege, and attorney waived any privilege that might exist by conducting the interview in the presence of news reporters.
People v. Jakes, 2013 WL 6504817 (Ill. App. 2013):

Holding: Defendant was entitled to postconviction discovery on his claim that Officer beat him to obtain a confession and had lied under oath, where since his conviction, Defendant had learned of multiple cases of police misconduct and coerced confessions involving this same Officer.
People v. Wright, 2012 WL 1108504 (Ill. App. Ct. 1^st Dist. 2012):

Holding: A defendant charged with aggravated criminal sexual assault demonstrated that DNA evidence would be material to the defense investigation or relevant at trial, and thus the defendant was entitled to a pretrial DNA database search.
People v. Duran, 2011 WL 1674842 (N.Y. City Crim. Ct. 2011):

Holding: Defendant was entitled to obtain by subpoena duces tecum Housing Authority videos which would likely show the crime.
Johnson v. Dept. of Public Safety Standards and Training, 2012 WL 5429461 (Or. App. 2012):

Holding: Oregon victim’s rights law which provided that a victim must be informed “by defendant’s attorney” that they are being contacted in a defense capacity did not require a private investigator hired by a defense attorney to disclose anything; the only obligation imposed by the law was on the attorney, not the investigator.

DNA Statute & DNA Issues
Fields v. State, 2014 WL 125205 (Mo. App. E.D. March 25, 2014):
Defendant, who was convicted in 1996, was entitled to an evidentiary hearing on his claim that DNA testing was still in its infancy in 1996 and was not reasonably available to him at the time.

Facts: Defendant was convicted at a jury trial in 1996 of forcible rape. A rape kit was collected, but never tested for DNA. Recently, he filed a motion for DNA testing under Sec. 547.035, which was denied without a hearing.

Holding: Sec. 547.035, as relevant here, provides a person is entitled to DNA testing to demonstrate innocence if (1) there is DNA evidence upon which testing can be conducted and (2) the technology for the testing was not reasonably available at the time of trial. To determine whether DNA testing was reasonably available, a court must consider the particular circumstances in the case at the time of trial. Here, Defendant acknowledges that DNA testing became recognized and admissible in Missouri in 1991. But Defendant claims the technology was still in its infancy and not reasonably available in 1996. Defendant cites a study by the Dept. of Justice in California in 1996 that DNA was still only being used in a small number of cases due to its high cost, time constraints and unavailability. Although Defendant cites no Missouri-specific data for 1996, he requested a hearing to prove similar circumstances existed here through testimony by a DNA expert, as well as his trial counsel from 1996. Defendant’s claims are not conclusively refuted by the record, so he is entitled to an evidentiary hearing.
* Maryland v. King, 93 Crim. L. Rep. 325, ___ U.S. ___ (U.S. 6/3/13):

Holding: When Officers make an arrest supported by probable cause for a serious crime and detain Defendant in custody, the taking of a DNA sample is a reasonable booking procedure similar to photographing and fingerprinting does not violate the 4^th Amendment.
* Skinner v. Switzer, ___ U.S. ___, 88 Crim. L. Rep. 683 (U.S. 3/7/11):

Holding: Prisoner can use 42 USC Sec. 1983 to obtain access to evidence for DNA testing after a conviction.
U.S. v. Hagler, 92 Crim. L. Rep. 233 (7^th Cir. 11/21/12):

Holding: 18 USC 3297, which resets the limitations period for a federal crime “in a case in which DNA testing implicates an identified person,” does not restart the limitations clock where the DNA testing produced a partial profile that implicated dozens of people.
Mitchell v. U.S., 94 Crim. L. Rep. 394 (D.C. 12/12/13):

Holding: Under DC’s DNA statute, Gov’t bears the burden of proving that it does not possess biological material that can be DNA tested, and that it has undertaken a reasonable search for such evidence.
State v. Cheeks, 94 Crim. L. Rep. 89, 2013 WL 5495257 (Kan. 10/4/13):

Holding: State law that allowed persons convicted of first degree murder and rape to petition for post-conviction DNA testing, but did not allow persons convicted of second degree murder to do so, violated Equal Protection because there was no rational basis to distinguish between these scenarios.
King v. State, 2012 WL 1392636 (Md. 2012):

Holding: The provision of the DNA Collection Act authorizing the warrantless collection of a DNA sample upon a person’s arrest for a qualifying crime was unconstitutional under the 4^th Amendment as applied to the defendant because, as an arrestee, he was entitled to the presumption of innocence.
Com. v. Wade, 94 Crim. L. Rep. 771 (Mass. 3/14/14):

Holding: Massachusetts standard for DNA testing is lower than for most other states; testing is not conditioned on proof that the test results will raise doubt as to the conviction.
State v. Pratt, 2014 WL 659678 (Neb. 2014):

Holding: To interpret the “physical integrity” requirement of DNA statute as requiring that the potential evidence have been stored in a way to avoid contamination would frustrate the purpose of the DNA statue, which was to allow defendants to obtain DNA testing in “old” cases where DNA testing was not previously available.
Com. v. Wright, 88 Crim. L. Rep. 684 (Pa. 2/23/11):