The Louisiana Supreme Court granted a state writ yesterday in an Orleans
second degree murder where Judge van Davis had excluded an alleged
confession due to a discovery violation. State v. Donald Forest
available at http://www.lasc.org/opinions/2008/08KK1474.PC.pdf.

The state had not granted discovery of the confession (though it had
been referenced in the supplemental report). However, there had never
been a formal discovery motion filed by the defense and no formal
discovery order had been entered by the court (Orleans practice of
informal discovery relied upon). Pursuant to La. C. Cr. P. art 768 the
state noticed their intent to rely on the statement a week or so prior
to opening. The trial court suppressed. The Fourth Circuit denied the
state's writ. The Supreme Court granted the state's writ saying that
there can be no discovery violation sanctions unless there is a formal
discovery motion and an order on that motion. ("To prevent the State
from using the confession, there must be a motion seeking discovery,
pursuant to La. C. Cr. P. art 716.2 of the confession and/or an order
from the trial court mandating that such material be disclosed.")
 

I think most people outside of Orleans file formal discovery motions but
I have seen many files where the judge does not enter a formal order
granting discovery under the Code (for instance, the state provides a
bundle of documents and the motion is noted as satisfied). This
decision is a warning to all of us to make sure that we don't just get
discovery but that we get a formal order under the Code.

On the flip side, where we don't get a formal order for discovery, it is
questionable whether the state's reciprocal discovery rights are
properly triggered. The formalism of this opinion supports that
conclusion.
Richard Bourke
Acting Director
Louisiana Capital Assistance Center
636 Baronne Street
New Orleans LA 70113
Ph. +1 (504) 558 9867 ext. 500
Fx. +1 (504) 558 0378
Cell +1 (504) 258 2915