IN THE CIRCUIT COURT OF KANAWHA COUNTY, WEST VIRGINIA
IN THE INTEREST OF:
________________
A Child Under the Age of 21 Years
2014-JD-________
Judge ________
MOTION FOR DISCLOSURE OF EXCULPATORY EVIDENCE
AND IMPEACHMENT MATERIAL
The juvenile respondent, ____________, by counsel, __________, hereby moves
this Honorable Court to have the State provide to defense counsel, prior to trial and in
writing, all evidence or other materials favorable to the accused and which may negate or
tend to negate guilt for the offense alleged or which may mitigate punishment, and all
evidence which could reasonably weaken or impeach any evidence proposed by the State to
be introduced against the juvenile respondent. W.Va. Const. art. 3, secs. 10 and 14, U.S.
Const. amends 5, 6 and 14; Smith v. Cain, 132 S.Ct. 627 (2012); Kyles v. Whitely, 514 U.S.
419, 131 L.Ed.2d 490 (1995),Brady v. Maryland, 83 S.Ct. 1194 (1963); U.S. v. Agurs, 96
S.Ct. 2392 (1976) (due process); Barbee v. Warden, Maryland Penitentiary, 331 F.2d 842
(4th Cir. 1964); U.S. v. Bagley, 105 S.Ct. 3375 (1985); U.S. v. Badalamente, 507 F.2d 12
(2nd Cir. 1974); State v. McArdle, 156 W.Va. 409, 194 S.E.2d 174 (1973); State v.
Dudick, 158 W.Va. 629, 213 S.E.2d 458 (W.Va. 1975); State v. Petry, 166 W.Va. 153, 161,
273 S.E.2d 346 (1980); State v. Ashcraft, 172 W.Va. 640, 309 S.E.2d 600 (1983); and
United States v. Nixon, 418 U.S. 683, 709 (1974) (compulsory process).
This request specifically includes, but is not limited to, the following material:
1.
Notes, tapes or transcripts of all interviews with any witness for the
prosecution in which any of the following was present/occurred:
a.
Multiple interviews were conducted with a witness;
b.
Any statement, interview or testimony, which was inconsistent with another
statement, interview or testimony of that witness, or another State's witness;
c.
The statement, interview or testimony of a witness is internally inconsistent
with itself, or with other statements interviews or testimony of the witness.
2.
Juvenile respondent seeks disclosure of all exculpatory not specifically
requested above, considering not only its value as an individual item of evidence, but also
considering its cumulative impact on the prosecution case. Kyles v. Whitley, supra, United
States v. Bagley, supra.
This request includes, but is not limited to:
A.
Witness's Failure to Inculpate the Juvenile respondent:
(1)
any statement made by a percipient or informed witness which failed to
mention the juvenile respondent. Jones v. Jago, 575 F.2d 1164 (6th Cir. 1978); and
(2)
any failure by an eyewitness to identify the juvenile respondent as an actor in
a transaction in which the State contends he personally participated.
B.
Offers of Leniency to State Witnesses:
The terms of any plea bargain, offer of leniency or immunity, or other
inducement or agreement, whether oral or written, offered or actually given
to any witness whom the State intends to call at trial. SEE State v. Jones,
161 W.Va. 55, 239 S.E.2d 763 (1977).
C.
Juvenile & Criminal Records of State Witnesses:
The prior juvenile and criminal records or other prior material acts of misconduct of
any witness whom the State intends to call at trial. United States v. Strifler, 851
F.2d 1197, 1202 (9th Cir. 1988); United States v. Perdomo, 929 F.2d 967, 970-71
(3rd Cir. 1991). This includes all declarants whose out-of-court statements the State
will seek to introduce as an exception to the hearsay rule. SEE W.Va.R.Evid., Rule
806.
D.
Probation Reports of State Witnesses:
Copies of any federal or state probation or presentence report of any prospective
State witness. United States v. Figurski, 545 F.2d 389 (4th Cir. 1976); United
States v. Anderson, 724 F.2d 596, 598 (7th Cir. 1984) (presentence report contents
that impeach witness' credibility are discoverable; interpreting Figurski); United
States v. Strifler, 851 F.2d 1197 (9th Cir. 1988).
E.
Complaining Witness' Efforts to Dismiss Charge:
Any and all oral or written requests by a complaining witness or victim to withdraw
a complaint or to otherwise cause the dismissal of the charges alleged herein.
F.
Polygraph Tests:
The oral and/or written results of any polygraph test administered to any prospective
State witness. Carter v. Rafferty, 826 F.2d 1299, 1306-09 (3rd Cir. 1987).
G.
Investigations of State Witnesses:
Any evidence that any prospective government witness is or has been under
investigation by federal, state or local authorities for any criminal conduct unrelated
to the instant case. United States v. Chitty, 760 F.2d 425, 428 (2nd Cir.), cert.
denied, 474 U.S. 945 (1985).
H.
Prior False Statements of State Witnesses:
Any evidence that any prospective State witness has ever made any false statement
to authorities, whether or not under oath or penalty of perjury. United States v.
Strifler, 851 F.2d at 1202 (9th Cir. 1988).
I.
Bias/Motive of State Witnesses:
Any evidence that any prospective State witness is biased, prejudiced or has a
motive to be biased or prejudiced against the Juvenile respondent for any reason.
United States v. Strifler, 851 F.2d at 1202 (9th Cir. 1988); United States v.
Sperling, 726 F.2d 69 (2nd Cir. 1984).
J.
Inconsistent Statement(s) of State Witnesses:
Any evidence that any prospective State witness has made a contradictory or
inconsistent statement with regard to this case, and evidence that the testimony of
any prospective State witness is inconsistent with any statement of any other person
or prospective witness. Hudson v. Blackburn, 601 F.2d 785, 789 (5th Cir. 1979);
United States v. Hibler, 463 F.2d 455, 460 (9th Cir. 1972); Mesarosh v. United
States, 353 U.S. 1 (1956); Johnson v. Brewer, 521 F.2d 556 (8th Cir. 1975).
K.
Medical/Psychiatric Condition of State Witnesses:
Any evidence, including any medical or psychiatric report or evaluation, tending to
show that any prospective State witness' ability to perceive, remember,
communicate, or tell the truth is impaired; and any evidence that a witness has ever
used narcotics or other controlled substance, or has ever been an alcoholic. Chavis
v. North Carolina, 637 F.2d 213, 224 (4th Cir. 1980) United States v. Society of
Independent Gasoline Marketers of America, 624 F.2d 461, 467-69 (4th Cir. 1980).
L.
Evidence of Other Suspects in this Case:
Any evidence that someone other than the Juvenile respondent committed, or was
ever suspected of committing, the crimes charged or of performing the role in the
offense which the State intends to prove was performed by the Juvenile respondent.
McDowell v. Dixon; Miller v. Angliker, 848 F.2d 1312, 1321-23 (2nd Cir. 1988);
Bowen v. Maryland, 799 F.2d 593, 613 (10th Cir. 1986); James v. Jago, 575 F.2d
1164, 1168 (6th Cir. 1978).
M.
Witnesses Not Called by The State:
The names and addresses of witnesses to the offenses allegedly committed by the
Juvenile respondent whom the State does not intend to call at trial. United States v.
Cadet, 727 F.2d 1453, 1469 (9th Cir. 1984); State v. Bennett, 176 W.Va. 1, 339
S.E.2d 213 (1985); State v. Mansfield, 175 W.Va. 397, 332 S.E.2d 862 (1985).
The juvenile respondent requests that, as part of the disposition of this request for
exculpatory and impeachment material, the Court have the prosecuting attorney make
specific inquiry of each State agent connected to this case for each of the above-listed items.
State v. Watson, 318 S.E.2d 603 (W.Va. 1984) (question whether prosecutor "has access");
State v. Hall, 174 W.Va. 787, 329 S.E.2d 860 (1985) (what a law enforcement officer
knows must be imputed to the prosecution); Barbee v. Warden, 331 F.2d 842 (4th Cir.
1964); Boone v. Paderick, 541 F.2d 447 (4th Cir. 1976), cert denied, 430 U.S. 959 (1977);
United States v. Sutton, 542 F.2d 1239, 1241 and n.2 (4th Cir. 1976).
WHEREFORE, the juvenile respondent respectfully prays this Honorable Court
have the State to make inquiry as to the above requests, and to disclose all evidence set out
above; and that there be a continuing duty to provide such evidence, as well grant any other
relief this Court may deem appropriate.
_______________
By Counsel.
_______________________
__________________
ASSISTANT PUBLIC DEFENDER
KANAWHA COUNTY PUBLIC DEFENDER'S OFFICE
P.O. Box 2827
Charleston, WV 25330
(304) 348-2323
WV Bar#__________
CERTIFICATE OF SERVICE
I, _____________, hereby certify that on this 1st day of October, 2014, service of the
foregoing motion was made upon the State of West Virginia by hand-delivering a true copy
to the office of the Kanawha County Prosecutor, at 301 Virginia Street East, Charleston,
WV 25301.
__________________________
_______________
Counsel for Juvenile Respondent