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Code of Criminal Procedure

Title XX. Change of Venue

Art. 621. Motion;  form;  time for filing

A motion for a change of venue may be filed by either the state or the defendant.  It shall be filed in accordance with Article 521; or thereafter, in the discretion of the court, any time before the first witness is sworn at the trial of the merits.  The motion shall be in writing, sworn to by mover or his counsel, and shall contain:

(1)  Allegations of fact upon which the motion is based; and

(2)  A statement that the motion is not made for the purpose of delay, but to obtain a fair and impartial trial.

A contradictory hearing shall be held upon the motion.

Amended by Acts 1970, No. 291, §1; Acts 1978, No. 735, §2.

Art. 622. Grounds for change of venue

A change of venue shall be granted when the applicant proves that by reason of prejudice existing in the public mind or because of undue influence, or that for any other reason, a fair and impartial trial cannot be obtained in the parish where the prosecution is pending.

In deciding whether to grant a change of venue the court shall consider whether the prejudice, the influence, or the other reasons are such that they will affect the answers of jurors on the voir dire examination or the testimony of witnesses at the trial.

Art. 623. Change granted;  transfer

When a change of venue is granted, the court shall transfer the case to another parish.

Art. 623.1. Capital cases;  transfer of jury

In a case involving a capital offense, upon motion to transfer a jury or on its own motion, if the court determines it is in the interest of justice, the court may, as an alternative to transferring the case to another parish after a change of venue is granted, select a jury in the parish to which venue would otherwise have been transferred, and thereafter, transfer such jury to the court in which the case is pending.

Acts 1991, No. 82, §1.

Art. 624. Grant of change of venue;  procedure

When a change of venue is granted, the clerk of the court in which the case is pending shall make and retain copies of all documents relating to the case.  He shall deliver the original documents together with certified copies of all minute entries of the case to the clerk of the court to which the case is transferred, who shall enter the case upon the docket of the court, and the case shall be proceeded with in the same manner as if the proceedings had originally been instituted therein.

Art. 625. Transfer of defendant in custody

If a defendant is in custody when a change of venue is granted, the sheriff shall immediately deliver him to the sheriff of the parish to which the case is transferred, who shall hold him in custody until otherwise ordered by the court.

Art. 626. Change of venue where defendant is on bail

If a defendant has furnished bail prior to a change of venue, his obligation and that of the surety on his bond shall be the same as if the prosecution had been instituted in the court to which the case is transferred.

Art. 627. Appeals

If a change of venue is granted to the defendant over the objection of the state, or if the court denies an application by the state for a change of venue, the state shall have the right to appeal from the ruling, within the legal delays for making a motion for an appeal, before a trial on the merits.  Prior to sentence the defendant may not appeal from a ruling changing or refusing to change the venue.

Title XXI. Insanity Proceedings

Chapter 1. Mental Incapacity to Proceed

Art. 641. Mental incapacity to proceed defined

Mental incapacity to proceed exists when, as a result of mental disease or defect, a defendant presently lacks the capacity to understand the proceedings against him or to assist in his defense.

Art. 642. How mental incapacity is raised;  effect

The defendant's mental incapacity to proceed may be raised at any time by the defense, the district attorney, or the court.  When the question of the defendant's mental incapacity to proceed is raised, there shall be no further steps in the criminal prosecution, except the institution of prosecution, until the defendant is found to have the mental capacity to proceed.

Art. 643. Order for mental examination

The court shall order a mental examination of the defendant when it has reasonable ground to doubt the defendant's mental capacity to proceed.  Prior to the ordering of any such mental examination, the court shall appoint counsel to represent the defendant if he has not already retained counsel.

Amended by Acts 1975, No. 325, §1.

Art. 644. Appointment of sanity commission;  examination of defendant

A.  Within seven days after a mental examination is ordered, the court shall appoint a sanity commission to examine and report upon the mental condition of the defendant.  The sanity commission shall consist of at least two and not more than three members who are licensed to practice medicine in Louisiana, who have been in the actual practice of medicine for not less than three consecutive years immediately preceding the appointment, and who are qualified by training or experience in forensic evaluations.  The court may appoint, in lieu of one physician, a clinical psychologist or medical psychologist who is licensed to practice psychology in Louisiana, who has been engaged in the practice of clinical or counseling psychology for not less than three consecutive years immediately preceding the appointment, and who is qualified by training or experience in forensic evaluations.  Every sanity commission shall have at least one psychiatrist as a member of the commission, unless one is not reasonably available, in which case, the commission shall have at least one clinical psychologist as a member of the commission.  No more than one member of the sanity commission shall be the coroner or any of his deputies.

B.  The members of the sanity commission appointed to make the examination shall have free access to the defendant at all reasonable times.  The court shall subpoena witnesses to attend the examination at the request of the defendant, the commission, or any member thereof.

C.  For the purpose of the mental examination, the court may order a defendant previously released on bail to appear for mental examinations and hearings in the same manner as other criminal proceedings.

D.(1)  The court, in any judicial district which enters into a cooperative endeavor agreement with the local mental health unit, in lieu of appointing a sanity commission as provided in Paragraph A, may appoint the local mental health unit to examine and report on the mental condition of the defendant.  If the local mental health unit is ordered to conduct the examination, it shall form a clinical team, consisting of at least two but not more than three members, to conduct the examination.  The clinical team shall be composed of one or more licensed physicians with at least three years experience in the study of psychiatry in an approved United States General Psychiatry Residency Program; if only one such licensed physician is a member of the clinical team, the remaining members of the clinical team may be composed of clinical psychologists, medical psychologists, or licensed clinical social workers, who are qualified by training or experience in forensic evaluations.

(2)(a)  With respect to all other provisions of the Code of Criminal Procedure in which the term "sanity commission" is designated, it shall also mean and include, for the exclusive purpose of this Article, a clinical team designated by the local health unit to conduct the examination of the defendant in accordance with this Paragraph.

(b)  "Local mental health unit" as used in this Paragraph shall mean a legislatively created Human Services Authority.

Acts 1975, No. 325, §1; Acts 1987, No. 577, §1; Acts 1990, No. 488, §1; Acts 1994, 3rd Ex. Sess., No. 67, §1, eff. July 7, 1994; Acts 1997, No. 1222, §1; Acts 1999, No. 1309, §10, eff. Jan. 1, 2000; Acts 2009, No. 251, §1, eff. Jan. 1, 2010.

Art. 644.1. Sanity proceedings for juvenile defendants transferred to criminal court

A.  Any juvenile transferred for criminal trial in accordance with Articles 305 and 857 of the Children's Code may seek a special sanity hearing which shall be conducted in accordance with Articles 833 through 836 of the Children's Code.

B.  The determination of the juvenile's capacity or incapacity to proceed to trial shall be governed by the provisions of Articles 837 and 838 of the Children's Code.  In all other cases, the provisions of Code of Criminal Procedure Articles 648 through 649.1 shall govern the determination of capacity or incapacity to proceed to trial.

Acts 2006, No. 308, §1; Acts 2012, No. 698, §2.

Art. 645. Report of sanity commission

A.(1)  The report of the sanity commission members shall address their specific findings with regard to all of the following:

(a)  The defendant's capacity to understand the proceedings against him.

(b)  His ability to assist in his defense.

(c)  His need for inpatient hospitalization in the event he is found incompetent.

(2)  The fact that the defendant claims to be unable to remember the time period surrounding the alleged offense shall not, by itself, bar a finding of competency if the defendant otherwise understands the charges against him and can assist in his defense.

B.  The report of the sanity commission shall be filed in triplicate with the presiding judge within thirty days after the date of the order of appointment.  The time for filing may be extended by the court.  The clerk shall make copies of the report available to the district attorney and to the defendant or his counsel without cost.

Acts 1990, No. 436, §1.

Art. 646. Examination by physician retained by defense or district attorney

The court order for a mental examination shall not deprive the defendant or the district attorney of the right to an independent mental examination by a physician or mental health expert of his choice, and such physician or mental health expert shall be permitted to have reasonable access to the defendant for the purposes of the examination.

Acts 1999, No. 1104, §1.

Art. 647. Determination of mental capacity to proceed

The issue of the defendant's mental capacity to proceed shall be determined by the court in a contradictory hearing.  The report of the sanity commission is admissible in evidence at the hearing, and members of the sanity commission may be called as witnesses by the court, the defense, or the district attorney.  Regardless of who calls them as witnesses, the members of the commission are subject to cross-examination by the defense, by the district attorney, and by the court.  Other evidence pertaining to the defendant's mental capacity to proceed may be introduced at the hearing by the defense and by the district attorney.

Art. 648. Procedure after determination of mental capacity or incapacity

            A. The criminal prosecution shall be resumed unless the court determines by a preponderance of the evidence that the defendant does not have the mental capacity to proceed. If the court determines that the defendant lacks mental capacity to proceed, the proceedings shall be suspended and one of the following dispositions made:

            (1) If the court determines that the defendant's mental capacity is likely to be restored within ninety days by outpatient care and treatment at a treatment facility as defined by R.S. 28:2 while remaining in the custody of the criminal authorities, and if the person is not charged with a felony or a misdemeanor classified as an offense against the person and is considered by the court to be unlikely to commit crimes of violence, then the court may order outpatient care and treatment at any institution as defined by R.S. 28:2.

            (2)(a) Except as otherwise provided for in Subsubparagraph (b) of this Subparagraph, if the person is charged with a felony, or with a misdemeanor violation of R.S. 14:35.3, and is considered by the court to be likely to commit crimes of violence, and the court determines that his mental capacity is likely to be restored within ninety days as a result of treatment, the court may order immediate jail-based treatment by the Louisiana Department of Health not to exceed ninety days. Otherwise, if his capacity cannot be restored within ninety days and inpatient treatment is recommended, the court shall commit the defendant to the Feliciana Forensic Facility.

            (b) If a person is charged with a felony violation of the Uniform Controlled Dangerous Substances Law, except for violations punishable under the provisions of R.S. 40:966(D) and (F) and 967(F)(1)(b) and (c), (2), and (3), and the court determines that his mental capacity cannot be restored within ninety days, the court shall release the person for outpatient competency restoration or other appropriate treatment.

            (c) If a person is charged with a misdemeanor classified as an offense against a person, except for a misdemeanor violation of R.S. 14:35.3, and the court determines that his mental capacity cannot be restored within ninety days, the court shall release the person for outpatient competency restoration or other appropriate treatment.

            (d) If a defendant committed to the Feliciana Forensic Facility is held in a parish jail for one hundred eighty days after the court's determination that he lacks the mental capacity to proceed, the court shall order a status conference to be held with the defense and the district attorney present, and for good cause shown and on motion of the defendant or the district attorney or on the court's own motion, the court shall order a contradictory hearing to determine whether there has been a change in the defendant's condition or other circumstances sufficient to warrant a modification of the previous order.

            (e) If a defendant committed to the Feliciana Forensic Facility is held in a parish jail for one hundred eighty days after the initial status conference provided in Subsubparagraph (d) of this Subparagraph, the court shall order a contradictory hearing to determine whether to release the defendant or to order the appropriate authorities to institute civil commitment proceedings pursuant to R.S. 28:54. The defendant shall remain in custody pending such civil commitment proceedings. If the defendant is civilly committed to a treatment facility pursuant to Title 28 of the Louisiana Revised Statutes of 1950, the director of the institution designated for the patient's treatment shall, in writing, notify the court and the district attorney when the patient is to be discharged or conditionally discharged, as long as the charges are pending.

            B.(1) In no instance shall such custody, care, and treatment exceed the time of the maximum sentence the defendant could receive if convicted of the crime with which he is charged. At any time after commitment and on the recommendation of the director or administrator of the treatment facility that the defendant will not attain the capacity to proceed with his trial in the foreseeable future, the court shall, within sixty days and after at least ten days notice to the district attorney, defendant's counsel, and the bureau of legal services of the Louisiana Department of Health, conduct a contradictory hearing to determine whether the defendant is, and will in the foreseeable future be, incapable of standing trial and whether he is a danger to himself or others.

            (2) Repealed by Acts 2008, No. 861, §2, eff. July 9, 2008.

            (3) If, after the hearing, the court determines that the incompetent defendant is unlikely in the foreseeable future to be capable of standing trial, the court shall order the defendant released or remanded to the custody of the Louisiana Department of Health which, within ten days exclusive of weekends and holidays, may institute civil commitment proceedings pursuant to Title 28 of the Louisiana Revised Statutes of 1950, or release the defendant. The defendant shall remain in custody pending such civil commitment proceedings. If the defendant is committed to a treatment facility pursuant to Title 28 of the Louisiana Revised Statutes of 1950, the director of the institution designated for the patient's treatment shall, in writing, notify the court and the district attorney when the patient is to be discharged or conditionally discharged, as long as the charges are pending. If not dismissed without prejudice at an earlier trial, charges against an unrestorable incompetent defendant shall be dismissed on the date upon which his sentence would have expired had he been convicted and received the maximum sentence for the crime charged, or on the date five years from the date of his arrest for such charges, whichever is sooner, except for the following charges:

            (a) Charges of a crime of violence as defined in R.S. 14:2(B).

            (b) R.S. 14:46 (false imprisonment).

            (c) R.S. 14:46.1 (false imprisonment; offender armed with dangerous weapon).

            (d) R.S. 14:52 (simple arson).

            (e) R.S. 14:62 (simple burglary).

            (f) R.S. 14:62.3 (unauthorized entry of an inhabited dwelling).

            (g) R.S. 14:89(A)(2) (crime against nature).

            (h) R.S. 14:89.1(A)(2) (aggravated crime against nature).

            (i) R.S. 14:801 (carnal knowledge of a juvenile).

            (j) R.S. 14:81 (indecent behavior with juveniles).

            (k) R.S. 14:81.1 (pornography involving juveniles).

            (l) R.S. 14:81.2 (molestation of a juvenile or a person with a physical or mental disability).

            (m) R.S. 14:92 (contributing to the delinquency of juveniles).

            (n) R.S. 14:92.1 (encouraging or contributing to child delinquency, dependency, or neglect).

            (o) R.S. 14:93 (cruelty to juveniles).

            (p) R.S. 14:93.2.3 (second degree cruelty to juveniles).

            (q) R.S. 14:93.3 (cruelty to persons with infirmities).

            (r) R.S. 14:93.4 (exploitation of persons with infirmities).

            (s) R.S. 14:93.5 (sexual battery of persons with infirmities).

            (t) R.S. 14:102 (cruelty to animals).

            (u) R.S. 14:106 (obscenity).

            (v) R.S. 14:283 (video voyeurism).

            (w) R.S. 14:284 (Peeping Tom).

            (x) Charges against a defendant who has been convicted of a felony offense within ten years prior to the date on which he was charged for the current offense.

            C. The superintendent of the forensic unit of the Feliciana Forensic Facility shall admit only those persons specified in R.S. 28:25.1 and those persons found not guilty by reason of insanity on conditional release who have a physician's emergency certificate or who seek voluntary admission pursuant to Article 658(B)(4) of this Code.

            Acts 1975, No. 325, §1; Acts 1979, No. 318, §1; Acts 1980, No. 612, §1; Acts 1982, No. 495, §1; Acts 1983, No. 399, §1; Acts 1987, No. 928, §1, eff. July 20, 1987; Acts 1988, No. 383, §1; Acts 1990, No. 755, §1; Acts 1992, No. 400, §1; Acts 1995, No. 800, §1; Acts 1997, No. 723, §1; Acts 2001, No. 472, §1; Acts 2008, No. 861, §§1, 2, eff. July 9, 2008; Acts 2010, No. 419, §1, eff. June 21, 2010; Acts 2014, No. 602, §2, eff. June 12, 2014; Acts 2014, No. 811, §31, eff. June 23, 2014; Acts 2017, No. 369, §5.

            1R.S. 14:80 changed to felony carnal knowledge of a juvenile by Acts 2001, No. 796, §1.

Art. 648.1. Information required prior to admission

No superintendent of an institution shall admit a defendant found by the court to lack the mental capacity to proceed pursuant to Article 648 unless he is furnished by the court the following information:

(1)  The name and address of the defendant's attorney.

(2)  The crime or crimes with which the defendant is charged and the date of such charge or charges.

(3)  A copy of the report of the sanity commission.

(4)  Any other pertinent information concerning the defendant's health which has come to the attention of the court such as injuries sustained at the time of arrest or injuries sustained following incarceration.

(5)  A copy of the defendant's criminal history record.

(6)  A copy of the police report concerning the charged offense.

(7)  A copy of the judgment and order specifying the nature and purpose of the commitment or recommitment to the state institution.

Acts 1975, No. 325, §2; Acts 1990, No. 754, §1; Acts 1992, No. 399, §1.

Art. 649. Procedure when capacity regained

A.  At any time after a defendant's commitment, if either the superintendent of the mental institution or the administrator of outreach forensic services reports to the committing court that the defendant presently has the mental capacity to proceed, the defendant, if hospitalized, shall be discharged from the mental institution and released to the custody of the sheriff of the parish from which the defendant was committed, and the court shall hold a contradictory hearing within thirty days on that issue.  No defendant shall be released prior to the holding of the contradictory hearing on his release unless the office of the district attorney in charge of the prosecution of the defendant receives seven days notice of the pending release of the defendant.

B.  Prior to such a hearing, the court shall appoint counsel to represent the defendant, if the defendant does not have counsel, and may order a mental examination by a sanity commission appointed in conformity with Article 644.  The report of the superintendent of the mental institution or the administrator of outreach services may be stipulated to and submitted by the state and the defense in lieu of a mental examination by a sanity commission.  If the committing court does not hold a hearing within thirty days, the sheriff of the parish from which the defendant was committed shall appear at the institution within seven days thereafter and shall receive and hold the defendant in custody pending further orders of the committing court.  If the sheriff fails to appear with a court order and accept custody of the defendant, the superintendent of the state mental institution or the director of the mental health unit shall notify the judicial administrator and the attorney general of such fact.  Thereafter the Criminal Court Fund of the parish from which the defendant was committed shall pay to the general fund of the state the sum of one hundred dollars a day until the sheriff appears and accepts custody of the defendant for the court.

C.  The district attorney or the defense may apply to the court to have the proceedings resumed, on the ground that the defendant presently has the mental capacity to proceed.  Upon receipt of such application the court shall hold a contradictory hearing to determine if there is reasonable ground to believe that the defendant presently has the mental capacity to proceed.  The court may direct the superintendent of the mental institution where the defendant is committed or the administrator of outreach forensic services, if treatment is initiated in jail, to make a report and recommendation prior to such hearing as to whether the defendant presently has capacity to proceed, or may order an independent mental examination by a sanity commission appointed in conformity with Article 644.

D.  Reports as to present mental capacity to proceed shall be filed in conformity with Article 645, and the court's determination of present mental capacity to proceed shall be made in conformity with the appropriate provisions of Articles 646 and 647.

E.  If the court determines that the defendant has the mental capacity to proceed, the proceedings shall be promptly resumed.

Acts 1975, No. 325, §1; Acts 1987, No. 928, §1, eff. July 20, l987; Acts 1988, No. 383, §1; Acts 1990, No. 490, §1; Acts 1992, No. 397, §1.

Art. 649.1. Prescribed medication;  administration

When a person is returned to the committing court from an institution pursuant to Article 649 pending a sanity hearing, and the superintendent of the committing institution deems it necessary that the patient receive prescribed medication, it shall be the duty of the chief administrative officer of the parish jail to make such medication available to the person until such time as the coroner or another physician finds that the medication or its prescribed dosage is no longer necessary.

Added by Acts 1975, No. 325, §2.

 

Chapter 2. Defense of Insanity at Time of Offense

Art. 650. Mental examination after plea of insanity

When a defendant enters a combined plea of "not guilty and not guilty by reason of insanity," the court may appoint a sanity commission as provided in Article 644 to make an examination as to the defendant's mental condition at the time of the offense.  The court may also order the commission to make an examination as to the defendant's present mental capacity to proceed.  Mental examinations and reports under this article shall be conducted and filed in conformity with Articles 644 through 646.

Art. 651. When defense of insanity at time of offense is available;  method of trial

When a defendant is tried upon a plea of "not guilty", evidence of insanity or mental defect at the time of the offense shall not be admissible.

The defenses available under a combined plea of "not guilty and not guilty by reason of insanity" shall be tried together.

Art. 652. Burden of proof

The defendant has the burden of establishing the defense of insanity at the time of the offense by a preponderance of the evidence.

Art. 653. Testimony of members of sanity commission

Upon the trial of the defense of insanity at the time of the offense, the members of the sanity commission may be called as witnesses by the court, the defense, or the district attorney.  Regardless of who calls them as witnesses, the members of the commission are subject to cross-examination by the defense, by the district attorney, and by the court.  Other evidence pertaining to the defense of insanity at the time of the offense may be introduced at the trial by the defense and by the district attorney.

Art. 654. Legal effect of acquittal on ground of insanity;  commitment

When a verdict of not guilty by reason of insanity is returned in a capital case, the court shall commit the defendant to a proper state mental institution or to a private mental institution approved by the court for custody, care, and treatment.

When a defendant is found not guilty by reason of insanity in any other felony case, the court shall remand him to the parish jail or to a private mental institution approved by the court and shall promptly hold a contradictory hearing at which the defendant shall have the burden of proof, to determine whether the defendant can be discharged or can be released on probation, without danger to others or to himself.  If the court determines that the defendant cannot be released without danger to others or to himself, it shall order him committed to a proper state mental institution or to a private mental institution approved by the court for custody, care, and treatment.  If the court determines that the defendant can be discharged or released on probation without danger to others or to himself, the court shall either order his discharge, or order his release on probation subject to specified conditions for a fixed or an indeterminate period.  The court shall assign written findings of fact and conclusions of law; however, the assignment of reasons shall not delay the implementation of judgment.

Amended by Acts 1975, No. 805, §1; Acts 1982, No. 689, §1.

Art. 654.1. Information required prior to admission

 No superintendent of a mental institution shall admit a defendant found not guilty by reason of insanity pursuant to Article 654 unless the court furnishes the following information:

(1)  The defendant's commitment order specifying not guilty by reason of insanity.

(2)  A copy of the defendant's criminal history record.

(3)  A police report concerning the charged offense.

(4)  Victim and witness statements, if any.

(5)  The name, address, and telephone number of the district attorney who prosecuted the defendant.

Acts 1990, No. 753, §1.

Art. 655. Application for discharge or release on probation;  review panel

            A.(1) When the superintendent of a mental institution is of the opinion that a person committed pursuant to Article 654 can be discharged or can be released on probation, without danger to others or to himself, he shall recommend the discharge or release of the person in a report to a review panel comprised of the person's treating physician, the clinical director of the facility to which the person is committed, and a physician, medical psychologist, or psychologist who served on the sanity commission which recommended commitment of the person. If any member of the panel is unable to serve, a physician, medical psychologist, or a psychologist engaged in the practice of clinical or counseling psychology with at least three years' experience in the field of mental health shall be appointed by the remaining members.

            (2) The panel shall review all reports received promptly. After review, the panel shall make a recommendation to the court by which the person was committed as to the person's mental condition and whether he can be discharged, conditionally or unconditionally, or placed on probation, without being a danger to others or himself. If the review panel recommends to the court that the person be discharged, conditionally or unconditionally, or placed on probation, the court shall conduct a contradictory hearing following notice to the district attorney.

            (3) A recommendation that the person be discharged or released on probation shall require a unanimous vote of the panel.

            (4) The panel shall render specific findings of fact in support of its recommendation.

            B. A person committed pursuant to Article 654 may make application to the review panel for discharge or for release on probation. Such application by a committed person may not be filed until the committed person has been confined for a period of at least six months after the original commitment. If the review panel recommends to the court that the person be discharged, conditionally or unconditionally, or placed on probation, the court shall conduct a hearing following notice to the district attorney. If the recommendation of the review panel or the court is adverse, the applicant shall not be permitted to file another application until one year has elapsed from the date of determination.

            C. The superintendent of the mental institution shall, under both Paragraphs A and B of this Article, transmit a copy of this report and recommendation to the person committed or his attorney and to the district attorney of the parish from which the person was committed.

            Acts 1985, No. 925, §1; Acts 1987, No. 928, §1, eff. July 20, 1987; Acts 2018, No. 532, §1.

Art. 656. Additional mental examinations

A.  Upon receipt of the superintendent's report, filed in conformity with Article 655, the review panel may examine the committed person and report, to the court promptly, whether he can be safely discharged, conditionally or unconditionally, or be safely released on probation, without danger to others or to himself.

B.  The committed person or the district attorney may also retain a physician to examine the committed person for the same purpose.  The physician's report shall be filed with the court.

C.  Upon receipt by the superintendent of the state hospital or other treatment facility to which the person has been committed of the recommendation of the hospital-based treatment team that the person is appropriate for probated outpatient status as set forth in this Chapter, the superintendent shall immediately forward such recommendation to the administrator of the conditional release  program, together with the proposed aftercare plans.  The administrator or a designee shall submit to the review panel a recommended plan, if appropriate, for outpatient supervision and monitoring.  The plan shall set forth any additional terms and conditions to be followed during outpatient status, if recommended.

Acts 1987, No. 928, §1, eff. July 20, 1987; Acts 1995, No. 800, §1.

Art. 657. Discharge or release;  hearing

            After considering the report or reports filed pursuant to Articles 655 and 656, the court may either continue the commitment or hold a contradictory hearing to determine whether the committed person no longer has a mental illness as defined by R.S. 28:2 and can be discharged, or can be released on probation, without danger to others or to himself as defined by R.S. 28:2. At the hearing the burden shall be upon the state to seek continuance of the confinement by proving by clear and convincing evidence that the committed person currently has a mental illness and is dangerous. After the hearing, and upon filing written findings of fact and conclusions of law, the court may order the committed person discharged, released on probation subject to specified conditions for a fixed or an indeterminate period, or recommitted to the state mental institution. A copy of the judgment and order containing the written findings of fact and conclusions of law shall be forwarded to the administrator of the forensic facility. Notice to the counsel for the committed person and the district attorney of the contradictory hearing shall be given at least thirty days prior to the hearing.

            Acts 1992, No. 398, §1; Acts 1993, No. 700, §1; Acts 2017, No. 369, §5.

Art. 657.1. Conditional release;  criteria

            A. At any time the court considers a recommendation from the hospital-based review panel that the person may be discharged or released on probation, it may place the insanity acquittee on conditional release if it finds the following:

            (1) Based on the factors which the court shall consider pursuant to Article 657, he does not need inpatient hospitalization but needs outpatient treatment, supervision, and monitoring to prevent his condition from deteriorating to a degree that he would likely become dangerous to self and others.

            (2) Appropriate outpatient treatment, supervision, and monitoring are reasonably available.

            (3) There is significant reason to believe that the insanity acquittee, if conditionally released, would comply with the conditions specified.

            (4) Conditional release will not present an undue risk of danger to others or self, as defined in R.S. 28:2.

            B. The court shall subject a conditionally released insanity acquittee to such orders and conditions it deems will best meet the acquittee's need for treatment, supervision, and monitoring and will best serve the interests of justice and society.

            C. These provisions for conditional release may also be applied to discharges of pretrial defendants found unrestorably incompetent to proceed pursuant to Article 648(B).

            Acts 1995, No. 800, §1; Acts 2017, No. 369, §5.

Art. 657.2. Conditional release;  additional requirements

            A. Upon an application for conditional release of a person, who has been committed to a state hospital or other treatment facility pursuant to this Chapter upon the grounds that the adverse effects of a mental illness are in remission, and if after a hearing the court determines that the applicant will not likely be a danger to others or himself, as defined in R.S. 28:2, if he is under supervision and his treatment is monitored in the community, the court shall not consider the applicant to be in stable remission from the adverse effects of a mental illness until the applicant is placed with an appropriate forensic conditional release program for at least one year but not more than five years.

            B. For good cause shown, placement in a conditional release program may be extended after five years in one-year increments at a yearly contradictory hearing with the state.

            C. All or a substantial portion of the program shall include outpatient treatment, supervision, and monitoring.

            D. At the termination of conditional release, the person may continue to receive appropriate treatment services, if recommended by the treating psychiatrist, from public or private mental health agencies, with inactive supervision provided by the division of probation and parole of the Department of Public Safety and Corrections.

            Acts 1995, No. 800, §1; Acts 2017, No. 369, §5.

Art. 658. Probation;  conditional release;  reporting

            A. When the committed person is released on probation, which shall also be known as conditional release, the clerk of court shall deliver to him a certificate setting forth the period and the conditions of his probation. It shall be a condition of every such probation that the person released shall be recommitted if he becomes dangerous to others or to himself for reasons of mental illness, substance abuse, or intellectual disability. The probationer shall be required to agree in writing to the conditions of his probation.

            B.(1) The probationer shall be under the supervision of the division of probation and parole. When the probationer violates or is about to violate the conditions of his probation, he may be arrested and detained in conformity with the applicable provisions of Article 899 of this Code.

            (2) The Louisiana Department of Health shall be responsible for the community treatment and monitoring of persons placed on outpatient status under this Chapter. These services shall be available on a parish or regional basis. The department may provide treatment services directly or through contracts with private providers or local jurisdictions.

            (3) The department shall designate for each parish or for each region comprised of two or more parishes a conditional release program coordinator, who shall be responsible for the provisions specified in this Chapter. The coordinator shall monitor the forensic aftercare provider's implementation of the conditional release order and the forensic aftercare provider's submission to the court of written reports on the acquittee's progress, adjustment in the community, and compliance with the order no less frequently than ninety days after admission to the program and every one hundred eighty days thereafter.

            (4) If a person on conditional release or otherwise probated under this Chapter is in need of acute, i.e. short-term, hospitalization and is not charged with a new criminal offense, he may be voluntarily admitted pursuant to R.S. 28:52 or admitted by emergency certificate pursuant to R.S. 28:53 to the Feliciana Forensic Facility or to another suitable treatment facility, with subsequent notice to the court. Transportation to and from the receiving hospital may be effected by the Feliciana Forensic Facility or the sheriff of the parish of incarceration. Hospital discharge of the person under this provision shall be at the discretion of the clinical director of the facility and a hospital admission pursuant to this provision will not be grounds for revocation or recommitment under Subparagraph (C)(4) of this Article. However, the discharge of a person based on the need for indefinite hospitalization or noncompliance with treatment recommendations shall be grounds for revocation or recommitment.

            (5) The division of probation and parole or the Louisiana Department of Health through the conditional release program coordinator or a designee shall immediately notify the court of any substantive violations or imminent violations of the conditions of a person's probated release and shall present recommendations to the court regarding whether the court should revoke the probation and recommit the probationer to a state mental institution or other recommendations as may be appropriate.

            (6) The court, on its own motion or that of the district attorney or probation officer, or upon receiving a report recommending revocation or other disposition from the conditional release program coordinator, may cause the person to be arrested, if he is not already in custody, and shall immediately hold a hearing to consider the violations listed or transfer the case to the parish of commitment, if different from that of the arrest, at which place the hearing should be held as soon as possible.

            C. If the court determines that there has been a violation or that the probationer was about to violate the conditions of release or probation it may do any of the following:

            (1) Reprimand and warn the probationer.

            (2) Order that supervision be intensified.

            (3) Modify or add additional conditions to the probation.

            (4) Revoke the probation and recommit the probationer to a state mental institution, subject to consideration for discharge or release on probation only after one year has elapsed from the date of revocation and in accordance with the procedure prescribed in Articles 655 through 657 of this Code for a first application and hearing. If the probation is revoked and the probationer recommitted, the court shall provide the hospital with the report of the probation officer or forensic aftercare provider regarding the details of the violations involved.

            D. The court may completely discharge the probationer after the expiration of one year in a supervised conditional release program only on recommendation of the director of the division of probation and parole or the administrator of the conditional release program or on other proper evidence of expected outpatient compliance with any continued treatment recommendations, and after a contradictory hearing with the district attorney.

            E. No person who is on outpatient conditional release status pursuant to this Chapter shall leave this state without first obtaining written approval to do so from the director of the division of probation and parole and the administrator of the conditional release program. Any person who violates the provisions of this Paragraph may be fined not more than one thousand dollars or imprisoned with or without hard labor for not more than one year, or both.

            Acts 1985, No. 925, §1; Acts 1995, No. 800, §1; Acts 2014, No. 811, §31, eff. June 23, 2014.

Chapter 3. Costs

Art. 659. Costs of mental examinations prior to commitment

The fees and expenses of physicians, including coroners and other physicians in the employ of the state or its political subdivisions, appointed by a court to make a mental examination and report prior to commitment shall be fixed by the court in an amount not less than the fees set forth in R.S. 13:5706 and shall be paid by the parish where the prosecution was instituted.  The fee paid to the coroner or other physician in the employ of the state shall be in addition to his salary.  Use of the facilities of a state mental institution in making the mental examination shall be without cost to the parish.

Acts 2001, No. 467, §1.

Art. 660. Institutional costs after commitment

The custody, care, and treatment of a defendant committed under the provisions of this Title, and mental examinations and reports subsequent thereto by physicians on the medical staff of the institution, shall be without cost to the parish from which the defendant was committed.  When a physician on the medical staff of the institution is called to testify at a hearing or trial concerning a mental examination made by him, he shall be entitled to a reasonable expert witness fee to be fixed by the court, and to reimbursement for traveling expenses in conformity with law, with such fees and expenses to be paid by the parish where the prosecution was instituted.

Chapter 4. Progress Reports

Art. 661. Progress reports;  responsibility to furnish

The superintendent of each mental institution and the director of each mental health unit throughout the state shall furnish progress reports every six months on each patient committed under the provisions of this Title.  Copies of such reports shall be furnished to the committing court, the judicial administrator, and the attorney general of the state.

Added by Acts 1975, No. 325, §3.

Title XXII. Recusation of Judges and District Attorneys

Chapter 1. Recusation of Judges

Art. 671. Grounds for recusation of judge

A.  In a criminal case a judge of any court, trial or appellate, shall be recused when he:

(1)  Is biased, prejudiced, or personally interested in the cause to such an extent that he would be unable to conduct a fair and impartial trial;

(2)  Is the spouse of the accused, of the party injured, of an attorney employed in the cause, or of the district attorney; or is related to the accused or the party injured, or to the spouse of the accused or party injured, within the fourth degree; or is related to an attorney employed in the cause or to the district attorney, or to the spouse of either, within the second degree;

(3)  Has been employed or consulted as an attorney in the cause, or has been associated with an attorney during the latter's employment in the cause;

(4)  Is a witness in the cause;

(5)  Has performed a judicial act in the case in another court; or

(6)  Would be unable, for any other reason, to conduct a fair and impartial trial.

B.  In any cause in which the state, or a political subdivision thereof, or a religious body is interested, the fact that the judge is a citizen of the state or a resident of the political subdivision, or pays taxes thereto, or is a member of the religious body is not of itself a ground for recusation.

Acts 1988, No. 515, §3, eff. Jan. 1, 1989.

{{NOTE:  SEE ACTS 1988, NO. 515, §12.}}

Art. 672. Recusation on court's own motion;  by supreme court

A judge may recuse himself, whether a motion for his recusation has been filed by a party or not, in any case in which a ground for recusation exists.

On the written application of a trial judge, the supreme court may recuse him for any reason that it considers sufficient.

Art. 673. Judge may act until recused

A judge has full power and authority to act, even though a ground for recusation exists, until he is recused, or a motion for his recusation is filed.  The judge to whom the motion to recuse is assigned shall have full power and authority to act in the cause pending the disposition of the motion to recuse.

Acts 2010, No. 262, §2.

Art. 674. Procedure for recusation of trial judge

A party desiring to recuse a trial judge shall file a written motion therefor assigning the ground for recusation.  The motion shall be filed prior to commencement of the trial unless the party discovers the facts constituting the ground for recusation thereafter, in which event it shall be filed immediately after the facts are discovered, but prior to verdict or judgment.  If a valid ground for recusation is set forth in the motion, the judge shall either recuse himself, or refer the motion for hearing to another judge or to a judge ad hoc, as provided in Article 675.

Art. 675. Selection of judge ad hoc to try motion to recuse

A.  In a court having two judges, the judge who is sought to be recused shall refer the motion to recuse to the other judge of that court.

B.  In a court having more than two judges, the motion to recuse shall be referred to another judge of the court through a random process as provided by the rules of court.

C.  When the ground assigned for the recusation of the judge of a district court having one judge is that he is biased, prejudiced, or personally interested in the cause, the judge shall appoint a district judge of an adjoining district to try the motion to recuse.  When any other ground is assigned for the recusation of such a district judge, he may appoint either a district judge of an adjoining district or a lawyer domiciled in the judicial district who has the qualifications of a district judge to try the motion to recuse.  In a city court, a separate juvenile court, or a family court, when the court has a single judge, the judge shall refer the motion to recuse to a district judge of his district.

D.  The order of the court appointing a judge ad hoc shall be entered on the minutes of the court, and the clerk of court shall forward a certified copy of the order to the appointed judge ad hoc.  The motion to recuse shall be tried promptly in a contradictory hearing in the court in which the case is pending.

Acts 2001, No. 417, §2.

Art. 676. Judge ad hoc to try case when judge recused

A.  When a district court judge, or a judge of a separate juvenile court or of a family court, recuses himself, a judge ad hoc shall be assigned to try the case in the manner provided by Article 675 for the appointment of a judge ad hoc to try a motion to recuse.  When a city court judge of a court having a single judge recuses himself, he shall appoint to try the case either a city court judge from an adjoining parish or a lawyer who is domiciled in the parish and has the qualifications of a city court judge.

B.  When a district court judge or a judge of a separate juvenile court or of a family court is recused after a trial of the motion, the matter shall be reassigned to another judge for trial of the case in accordance with the procedures contained in Code of Criminal Procedure Article 675.  When a city court judge of a court having a single judge is recused after a trial on the motion, the judge ad hoc who tried the motion to recuse shall appoint to try the case either a city court judge from an adjoining parish or a lawyer who is domiciled in the parish and has the qualifications of a city court judge.

C.  When a city court has two judges, if a judge recuses himself or is recused, the case shall be tried by the other judge of that court.

D.  When a city court has more than two judges, if a judge recuses himself or is recused, the case shall be tried by another judge of that court through a random reassignment process.

E.  The judge ad hoc has the same power and authority to dispose of the case as the recused judge would have.

Amended by Acts 1972, No. 191, §1; Acts 2001, No. 417, §2.

Art. 677. Supreme court appointment of judge ad hoc

In a case in which the district judge is recused, even when a judge ad hoc has been appointed for the trial of the case under Article 676, the defendant or the district attorney may apply to the supreme court for the appointment of another district judge as judge ad hoc to try the case.  If the supreme court deems it in the interest of justice, it shall make such appointment.

The order of the supreme court appointing a judge ad hoc shall be entered on its minutes.  The clerk of the supreme court shall forward a certified copy of the order to the appointed judge ad hoc, and a certified copy to the clerk of the district court where the case is pending, for entry in its minutes.

Art. 678. Recusation of judge ad hoc

A judge ad hoc appointed to try a motion to recuse a judge, or appointed to try the case, may be recused on the grounds and in the manner provided in this Chapter for the recusation of judges.

Art. 679. Recusation of an appellate judge and a supreme court justice

A.  When a written motion is filed to recuse a judge of a court of appeal, he may recuse himself or the motion shall be heard by the other judges on the panel to which the cause is assigned, or by all judges of the court, except the judge sought to be recused, sitting en banc.

B.  When a judge of a court of appeal recuses himself or is recused, the court shall appoint another of its judges to act for the recused judge in the hearing and disposition of the case.

C.  When a written motion is filed to recuse a justice of the supreme court, he may recuse himself or the motion shall be heard by the other justices of the court.

D.  When a justice of the supreme court recuses himself, or is recused, the court may have the case argued before and disposed of by the other justices or appoint a judge of a district court or of a court of appeal to sit as a member of the court in the hearing and disposition of the case.

Acts 1997, No. 887, §1.

Chapter 2. Recusation of District Attorneys;  District Attorney Ad Hoc

Art. 680. Grounds for recusation of district attorney

A district attorney shall be recused when he:

(1)  Has a personal interest in the cause or grand jury proceeding which is in conflict with fair and impartial administration of justice;

(2)  Is related to the party accused or to the party injured, or to the spouse of the accused or party injured, or to a party who is a focus of a grand jury investigation, to such an extent that it may appreciably influence him in the performance of the duties of his office; or

(3)  Has been employed or consulted in the case as attorney for the defendant before his election or appointment as district attorney.

Amended by Acts 1980, No. 195, §1, eff. July 8, 1980.

 

Art. 681. Procedure for recusation of district attorney

A district attorney may recuse himself, whether a motion for his recusation has been filed or not, in any case in which a ground for recusation exists.  A motion to recuse the district attorney shall be in writing and shall set forth the grounds therefor.  The motion shall be filed in accordance with Article 521, and shall be tried in a contradictory hearing.  If a ground for recusation is established the judge shall recuse the district attorney.

Amended by Acts 1978, No. 735, §2.

Art. 682. Appointment of substitute for a recused district attorney

When a district attorney is recused, or recuses himself, the trial judge shall either appoint an attorney at law, who has the qualifications of a district attorney and is not an assistant to the recused district attorney, to act in the place of the district attorney in the case, or shall notify the attorney general in writing of the recusation.  In the latter instance, it shall be the duty of the attorney general to appoint a member of his staff or a district attorney of another district to act in the place of the recused district attorney.  The substitute appointed for the recused district attorney shall have all powers of the recused district attorney with reference to the case.

Amended by Acts 1972, No. 652, §1; Acts 2009, No. 271, §1.

Art. 683. Disability or absence of district attorney

When a district attorney is unable to perform his duties for any cause, other than recusation, death, or resignation or removal from office, an assistant district attorney shall act in his place.  When the district attorney still holds office and there is no assistant district attorney, the trial judge shall appoint an attorney at law of that district, having the qualifications of a district attorney, to act in his place during his disability or absence.  If the trial judge is unable to make the appointment, he shall certify the fact in writing to the attorney general, who shall appoint a district attorney of another district to act in place of the regular district attorney.  The temporary district attorney shall have all powers of the district attorney during the time of his disability or absence.

Art. 683.1. Costs of prosecution and investigation

A.  Whenever the district attorney of the parish of original jurisdiction and venue is recused or requests another district attorney or the attorney general to undertake a prosecution or an investigation reasonably related to a possible prosecution and such other district attorney or the attorney general actually undertakes same, the costs of such prosecution and investigation shall be borne by the parish of original jurisdiction and venue, which shall reimburse such other district attorney or the attorney general therefor.

B.  For the purposes of this Article, "costs of prosecution and investigation" include not only unreimbursed court costs but also the actual costs of travel, including mileage or transportation costs, lodging, and meals, all in accord with the travel regulations of the Division of Administration; the actual costs of experts and expert witnesses, their actual costs of travel, including mileage or transportation costs, lodging, and meals; laboratory fees, and all other actual costs of performing the prosecution and investigation.

Acts 1986, No. 895, §1.

Chapter 3. Review of Recusation Ruling

Art. 684. Review of recusation ruling

If a judge or a district attorney is recused over the objection of the state, or if an application by the state for recusation of a  judge is denied, the state may apply for a review of the ruling by supervisory writs.  The defendant may not appeal prior to sentence from a ruling recusing or refusing to recuse the judge or the district attorney.

Acts 1997, No. 887, §1.

Title XXIII. Dismissal of Prosecution

Art. 691. Dismissal of prosecution by district attorney

The district attorney has the power, in his discretion, to dismiss an indictment or a count in an indictment, and in order to exercise that power it is not necessary that he obtain consent of the court.  The dismissal may be made orally by the district attorney in open court, or by a written statement of the dismissal signed by the district attorney and filed with the clerk of court.  The clerk of court shall cause the dismissal to be entered on the minutes of the court.

Amended by Acts 1968, No. 142, §1.

Art. 692. Dismissal of indictment after conviction

After conviction, the district attorney is authorized to dismiss an indictment or count thereof only:

(1)  When a new trial has been granted.

(2)  When a motion in arrest of judgment has been sustained.

Acts 1983, No. 588, §1.

Art. 693. Effect of dismissal

Dismissal by the district attorney of an indictment or of a count of an indictment, discharges that particular indictment or count.  The dismissal is not a bar to a subsequent prosecution, except that:

(1)  A dismissal entered without the defendant's consent after the first witness is sworn at the trial on the merits, shall operate as an acquittal and bar a subsequent prosecution for the charge dismissed; and

(2)  A dismissal entered after a city court conviction has been appealed to the district court for a trial de novo, shall operate as an acquittal and bar a subsequent prosecution for the charge dismissed.

Title XXIV. Procedures Prior to Trial

Chapter 1. Setting Cases for Trial

Art. 701. Right to a speedy trial

            A. The state and the defendant have the right to a speedy trial.

            B. The time period for filing a bill of information or indictment after arrest shall be as follows:

            (1)(a) When the defendant is continued in custody subsequent to an arrest, an indictment or information shall be filed within forty-five days of the arrest if the defendant is being held for a misdemeanor and within sixty days of the arrest if the defendant is being held for a felony.

            (b) When the defendant is continued in custody subsequent to an arrest, an indictment shall be filed within one hundred twenty days of the arrest if the defendant is being held for a felony for which the punishment may be death or life imprisonment.

            (2)(a) When the defendant is not continued in custody subsequent to arrest, an indictment or information shall be filed within ninety days of the arrest if the defendant is booked with a misdemeanor and one hundred fifty days of the arrest if the defendant is booked with a felony.

            (b) Failure to institute prosecution as provided in Subparagraph (1) of this Paragraph shall result in release of the defendant if, after contradictory hearing with the district attorney, just cause for the failure is not shown. If just cause is shown, the court shall reconsider bail for the defendant. Failure to institute prosecution as provided in this Subparagraph shall result in the release of the bail obligation if, after contradictory hearing with the district attorney, just cause for the delay is not shown.

            C. Upon filing of a bill of information or indictment, the district attorney shall set the matter for arraignment within thirty days unless just cause for a longer delay is shown.

            D.(1) A motion by the defendant for a speedy trial, in order to be valid, must be accompanied by an affidavit by defendant's counsel certifying that the defendant and his counsel are prepared to proceed to trial within the delays set forth in this Article. Except as provided in Subparagraph (3) of this Paragraph, after the filing of a motion for a speedy trial by the defendant and his counsel, the time period for commencement of trial shall be as follows:

            (a) The trial of a defendant charged with a felony shall commence within one hundred twenty days if he is continued in custody and within one hundred eighty days if he is not continued in custody.

            (b) The trial of a defendant charged with a misdemeanor shall commence within thirty days if he is continued in custody and within sixty days if he is not continued in custody.

            (2) Failure to commence trial within the time periods provided above shall result in the release of the defendant without bail or in the discharge of the bail obligation, if after contradictory hearing with the district attorney, just cause for the delay is not shown.

            (3) After a motion for a speedy trial has been filed by the defendant, if the defendant files any subsequent motion which requires a contradictory hearing, the court may suspend, in accordance with Article 580, or dismiss upon a finding of bad faith the pending speedy trial motion. In addition, the period of time within which the trial is required to commence, as set forth by Article 578, may be suspended, in accordance with Article 580, from the time that the subsequent motion is filed by the defendant until the court rules upon such motion.

            E. "Just cause" as used in this Article shall include any grounds beyond the control of the State or the Court.

            F. A motion for a speedy trial filed by the defendant, but not verified by the affidavit of his counsel, shall be set for contradictory hearing within thirty days.

            Amended by Acts 1981, No. 181, §1; Acts 1982, No. 462, §1; Acts 1993, No. 682, §1; Acts 2007, No. 295, §1; Acts 2018, No. 259, §1.

Art. 702. Setting cases for trial

Cases shall be set for trial by the court on motion of the state, and may be set for trial on motion of the defendant.

Courts shall adopt rules governing the procedure for setting cases for trial and giving notice thereof.  The defendant shall be given notice of trial sufficiently in advance thereof so that he may summon his witnesses.

Chapter 2. Motion to Suppress Evidence

Art. 703. Motion to suppress evidence

A.  A defendant adversely affected may move to suppress any evidence from use at the trial on the merits on the ground that it was unconstitutionally obtained.

B.  A defendant may move on any constitutional ground to suppress a confession or statement of any nature made by the defendant.

C.  A motion filed under the provisions of this Article must be filed in accordance with Article 521, unless opportunity therefor did not exist or neither the defendant nor his counsel was aware of the existence of the evidence or the ground of the motion, or unless the failure to file the motion was otherwise excusable.  The court in its discretion may permit the filing of a motion to suppress at any time before or during the trial.

D.  On the trial of a motion to suppress filed under the provisions of this Article, the burden of proof is on the defendant to prove the ground of his motion, except that the state shall have the burden of proving the admissibility of a purported confession or statement by the defendant or of any evidence seized without a warrant.

E.(1)  An evidentiary hearing on a motion to suppress shall be held only when the defendant alleges facts that would require the granting of relief.  The state may file an answer to the motion.  The defendant may testify in support of a motion to suppress without being subject to examination on other matters.  The defendant's testimony cannot be used by the state except for the purpose of attacking the credibility of the defendant's testimony at the trial on the merits.

(2)  If the defendant testifies before the jury at the trial on the merits, he can be cross-examined on the whole case.

F.  A ruling prior to trial on the merits, upon a motion to suppress, is binding at the trial.  Failure to file a motion to suppress evidence in accordance with this Article prevents the defendant from objecting to its admissibility at the trial on the merits on a ground assertable by a motion to suppress.

G.  When a ruling on a motion to suppress a confession or statement is adverse to the defendant, the state shall be required, prior to presenting the confession or statement to the jury, to introduce evidence concerning the circumstances surrounding the making of the confession or statement for the purpose of enabling the jury to determine the weight to be given the confession or statement.

A ruling made adversely to the defendant prior to trial upon a motion to suppress a confession or statement does not prevent the defendant from introducing evidence during the trial concerning the circumstances surrounding the making of the confession or statement for the purpose of enabling the jury to determine the weight to be given the confession or statement.

Amended by Acts 1975, No. 814, §1; Acts 1978, No. 746, §1; Acts 1980, No. 431, §1; Acts 1988, No. 515, §3, eff. Jan. 1, 1989.

{{NOTE:  SEE ACTS 1988, NO. 515, §12.}}

Chapter 3. Severance and Consolidation

Art. 704. Severance

Jointly indicted defendants shall be tried jointly unless:

(1)  The state elects to try them separately; or

(2)  The court, on motion of the defendant, and after contradictory hearing with the district attorney, is satisfied that justice requires a severance.

Art. 705. Effects of severance

When the court has ordered severance of an indictment, the district attorney shall file separate indictments.

In the case of a grand jury indictment, no further action by the grand jury is required.  Severed indictments shall be considered as filed on the date of the filing of the original indictment.  Proceedings under the original indictment are not affected by the severance except insofar as they may be inconsistent with some other provision of this Code.  The effects of a severance, as stated in this article, apply to severances under Articles 532(3) and 704.

Art. 706. Consolidation for trial

Upon motion of a defendant, or of all defendants if there are more than one, the court may order two or more indictments consolidated for trial if the offenses and the defendants, if there are more than one, could have been joined in a single indictment.  The procedure thereafter shall be the same as if the prosecution were under a single indictment.

Chapter 4. Continuance

Art. 707. Motion for continuance;  time for filing

A motion for a continuance shall be in writing and shall allege specifically the grounds upon which it is based and, when made by a defendant, must be verified by his affidavit or that of his counsel.  It shall be filed at least seven days prior to the commencement of trial.

Upon written motion at any time and after contradictory hearing, the court may grant a continuance, but only upon a showing that such motion is in the interest of justice.

Amended by Acts 1978, No. 735, §2; Acts 1981, No. 440, §1.

Art. 708. Continuance and recess;  definitions

A continuance is the postponement of a scheduled trial or hearing, and shall not be granted after the trial or hearing has commenced.  A recess is a temporary adjournment of a trial or hearing that occurs after a trial or hearing has commenced.

Art. 709. Continuance based on absence of a witness

A.  A motion for a continuance based upon the absence of a witness shall state all of the following:

(1)  Facts to which the absent witness is expected to testify, showing the materiality of the testimony and the necessity for the presence of the witness at the trial.

(2)  Facts and circumstances showing a probability that the witness will be available at the time to which the trial is deferred.

(3)  Facts showing due diligence used in an effort to procure attendance of the witness.

B.  In addition to the requirements set forth in Paragraph A of this Article, when the motion for continuance is based upon the absence of a witness who is in the armed forces, the moving party, either the district attorney or the defense counsel, shall attest to facts showing that the absent witness is on active military duty in the United States Armed Forces.

Acts 2010, No. 744, §1, eff. June 29, 2010.

Art. 710. Prevention of continuance by admission of adverse party

When a motion for a continuance is based on the absence of a material witness, and the adverse party admits that if the witness were present he would testify as stated in the motion, the court may proceed to the trial of the case.  If the court is of the opinion that despite the admission, the case cannot be tried with justice to the applicant, it may require the adverse party to admit also the truth of the testimony as a condition of refusing to grant the continuance.

Art. 711. Trial of motion

A motion for continuance, unless consented to, shall be tried summarily and contradictorily with the adverse party.

Art. 712. Discretionary grounds

A motion for continuance, if timely filed, may be granted, in the discretion of the court, in any case if there is good ground therefor.

Art. 713. Peremptory grounds

A motion for a continuance based upon peremptory grounds as provided by law shall be granted.

Amended by Acts 1982, No. 734, §1, eff. Jan. 1, 1983.

Art. 714. Continuance to defendants jointly indicted

When defendants are jointly indicted and a continuance is granted to one of them, the court may grant a continuance to any of the others, on his motion.  However, a continuance granted to one defendant shall not deprive other jointly indicted defendants of a prompt trial unless the state can show good ground for continuance as to them.

Amended by Acts 1968, No. 143, §1.

Art. 715. Continuance to definite date or indefinitely

In granting the continuance, the judge shall fix the date upon which the trial or hearing shall proceed, if then practicable, except when both parties ask that no date be set.

Chapter 5. Discovery and Inspection

Part A. Discovery by the Defendant

Art. 716. Statements by the defendant, codefendants, and witnesses

A.  Upon written motion of the defendant, the court shall order the district attorney to disclose to the defendant, and to permit or authorize the defendant to inspect and copy, photograph or otherwise reproduce any relevant written or recorded confession or statement of any nature, including recorded testimony before a grand jury, or copy thereof, of the defendant in the possession, custody, control, or knowledge of the district attorney.

B.  Except as provided by Paragraph C of this Article, upon written motion of the defendant, the court shall order the district attorney to inform the defendant of the existence, but not the contents, of any oral confession or statement of any nature made by the defendant or any codefendant which the district attorney intends to offer in its case in chief at the trial, with the information as to when, where, and to whom such oral confession or statement was made.

C.  Upon written motion of the defendant, the court shall order the district attorney to inform the defendant of the substance of any oral statement made by the defendant or any codefendant which the state intends to offer in its case in chief at the trial, whether before or after arrest, in response to interrogation by any person then known to the defendant or the codefendant to be a law enforcement officer.

D.  Upon written motion of the defendant, the court shall order the district attorney to disclose to the defendant, and to permit or authorize the defendant to inspect and copy any written or recorded statements of any witness the state intends to call in its case in chief at the trial. For purposes of this Article: (1) "written or recorded statement of a witness" shall mean any audio or audio-video recording of an oral statement or interview of a witness, and any statement a witness writes or signs; (2) for the purposes of this Article, "trial" shall mean the phase of the case at which the state attempts to meet its burden as to guilt, and specifically does not extend to pretrial matters or hearings, or to the penalty phase in capital prosecutions. The state need not provide the defendant any written or recorded statement of its witnesses until immediately prior to the opening statement at trial.

E.  Nothing in this Chapter shall be construed to require that testimony before a grand jury be recorded.

F.  Nothing contained in this Chapter shall obligate the state to provide to any defendant a witness list for any trial or pretrial matter.

Added by Acts 1977, No. 515, §1; Acts 2013, No. 250, §1.

NOTE:  See Acts 2013, No. 250, §2, relative to applicability.

Art. 717. Disclosure by the state;  criminal records of defendant and witnesses;  inducements to the state's witnesses

A.  Upon written motion of the defendant, the court shall order the district attorney to disclose, or to direct the appropriate law enforcement agency to disclose to the defendant, the record of arrests and convictions of the defendant, any codefendant, and any witness the state calls, or intends to call at trial.

B.  The district attorney shall also disclose any inducement offered by the district attorney, or by any law enforcement officer on behalf of the district attorney, to any state witness.

C.  The time for disclosure provided for by this Article shall be set by the court, provided that the district attorney shall not be required to disclose inducements or records of arrests and convictions until the commencement of trial.  For any witness called by the state in its rebuttal case, the record of arrests and convictions of the rebuttal witness, and any inducement offered by the district attorney, or by any law enforcement officer on behalf of the district attorney, to secure testimony of the witness in the state's rebuttal case shall be disclosed immediately prior to the witness being sworn.

D.  The provisions of Article 729.7 of this Code regarding the protection of a witness's identity shall apply to this Article.

Added by Acts 1977, No. 515, §1; Acts 2012, No. 842, §1; Acts 2013, No. 250, §1.

NOTE:  See Acts 2013, No. 250, §2, relative to applicability.

Art. 718. Documents and tangible objects

Subject to the limitation of Article 723 of this Code, and except as otherwise prohibited by law, upon written motion of the defendant, the court shall order the district attorney to permit or authorize the defendant to inspect and copy, photograph or otherwise reproduce law enforcement reports created and known to the prosecutor made in connection with the particular case, and to permit or authorize the defendant or an expert working with the defendant, to inspect, copy, examine, test scientifically, photograph, or otherwise reproduce books, papers, documents, photographs, tangible objects, buildings, places, or copies or portions thereof that are within the possession, custody, or control of the state, and that are intended for use by the state as evidence in its case in chief at trial, or were obtained from or belong to the defendant.

Added by Acts 1977, No. 515, §1; Acts 2012, No. 842, §1; Acts 2013, No. 250, §1.

NOTE:  See Acts 2013, No. 250, §2, relative to applicability.

Art. 718.1. Evidence of obscenity, video voyeurism, or pornography involving juveniles;  prohibition on reproduction of pornography involving juveniles

            A. In any criminal proceeding, any property or material that is alleged to constitute evidence of obscenity as defined in R.S. 14:106(A)(2) that is unlawfully possessed, video voyeurism as defined in R.S. 14:283, or pornography involving juveniles as defined in R.S. 14:81.1, shall remain in the care, custody, and control of the investigating law enforcement agency, the court, or the district attorney.

            B. Notwithstanding any other provision of law to the contrary, the court shall deny any request by the defendant to copy, photograph, duplicate, or otherwise reproduce any property or material that is alleged to constitute evidence of obscenity as defined in R.S. 14:106(A)(2) that is unlawfully possessed, video voyeurism as defined in R.S. 14:283, or pornography involving juveniles as defined in R.S. 14:81.1, provided that the district attorney makes the property or material reasonably available to the defendant.

            C. For purposes of this Article, the property or material shall be deemed reasonably available to the defendant if the district attorney provides ample opportunity for the inspection, viewing, and examination at the office of the district attorney of the property or material by the defendant, the defendant's attorney, and any individual the defendant may seek to qualify to furnish expert testimony at trial.

            D. Any material described in Paragraph A of this Article shall be contraband and shall not be disseminated or viewed by anyone other than as provided for in this Article or for the purposes of prosecution of the related criminal offenses. The court may issue any orders it deems appropriate to ensure that the privacy concerns of the victim are addressed.

            Acts 2012, No. 404, §1; Acts 2012, No. 558, §1, eff. June 5, 2012; Acts 2016, No. 82, §1.

Art. 719. Reports of examinations and tests

A.  Upon written motion of the defendant, the court shall order the district attorney to permit or authorize the defendant to inspect and copy, photograph, or otherwise reproduce any results or reports, or copies thereof, of a physical or mental examination, and of scientific tests or experiments, made in connection with or material to the particular case, that are in the possession, custody, control, or knowledge of the district attorney and intended for use at trial. If the witness preparing the report will be called as an expert, the report shall contain the witness's area of expertise, his qualifications, a list of materials upon which his conclusion is based, and his opinion and the reason therefor.  If the expert witness has not reduced his results to writing, or if the expert witness's written report does not contain the information required of an expert as provided in this Article, the state must produce for the defendant a written summary containing any information required to be produced pursuant to this Article but absent from a written report, if any, including  the name of the expert witness, his qualifications, a list of materials upon which his conclusion is based, and his opinion and the reason therefor.

B.  In addition, upon motion of the defendant, whenever the court orders the defendant to provide urine, blood, saliva, or hair samples or samples of other bodily substances for deoxyribonucleic acid testing in a criminal case, the defendant shall be authorized to acquire one-half of the deoxyribonucleic acid sample to be tested separately by the defendant at his expense.

Added by Acts 1977, No. 515, §1; Acts 1997, No. 1074, §1; Acts 2013, No. 250, §1.

NOTE:  See Acts 2013, No. 250, §2, relative to applicability.

Art. 720. Evidence of other crimes

Upon written motion of defendant, the court shall order the district attorney to inform the defendant of the state's intent to offer evidence of the commission of any other crime admissible under the authority of Code of Evidence Articles 404 and 412.2.  However, that order shall not require the district attorney to inform the defendant of the state's intent to offer evidence of offenses which relates to conduct that constitutes an integral part of the act or transaction that is the subject of the present proceeding or other crimes for which the accused was previously convicted.

Added by Acts 1977, No. 515, §1.  Acts 1988, No. 515, §3, eff. Jan. 1, 1989; Acts 2013, No. 250, §1.

NOTE:  See Acts 2013, No. 250, §2, relative to applicability.

Art. 721. Statements of coconspirators

Upon written motion of the defendant, the court shall order the district attorney to disclose to the defendant the state's intent to use any written, recorded, or oral statements of coconspirators that the state intends to introduce in its case in chief pursuant to Code of Evidence Article 801(D)(3)(b).

Added by Acts 1977, No. 515, §1.  Acts 1988, No. 515, §3, eff. Jan. 1, 1989; Acts 2013, No. 250, §1.

NOTE:  See Acts 2013, No. 250, §2, relative to applicability.

Art. 722. Confessions and statements of codefendants

Upon written motion of the defendant, the court shall order the district attorney to permit or authorize the defendant to inspect and copy, photograph, or otherwise reproduce any written or recorded confessions or statements made by a codefendant.

Added by Acts 1977, No. 515, §1; Acts 2013, No. 250, §1.

NOTE:  See Acts 2013, No. 250, §2, relative to applicability.

Art. 723. State reports and other matters not subject to disclosure, favorable evidence

A.  Except as specifically provided in this Chapter, this Chapter does not authorize the discovery or inspection of reports, memoranda, notes, or other internal state documents made by the district attorney or by agents of the state in connection with the investigation or prosecution of the case; or of any document, notes, or other items which contain the mental impressions of any attorney for the state or any investigator working on behalf of such attorney.

B.  Notwithstanding any provision to the contrary contained herein, the state shall provide the defendant with any evidence constitutionally required to be disclosed pursuant to Brady v. Maryland, 373 U.S. 83 (1963) and its progeny.

Added by Acts 1977, No. 515, §1; Acts 2013, No. 250, §1.

NOTE:  See Acts 2013, No. 250, §2, relative to applicability.

Part B. Discovery by the State

Art. 724. Documents and tangible objects

When the court grants relief sought by the defendant under Article 718 of this Code, it shall upon the motion of the district attorney, condition its order by requiring the defendant to disclose to the state, and to permit or authorize the state, or an expert working with the state, to inspect, copy, examine, test scientifically, photograph, or otherwise reproduce books, papers, documents, photographs, tangible objects, buildings, places, or copies, or portions thereof, that are in the possession, custody, or control of the defendant, and that the defendant intends to use in evidence at the trial.

Added by Acts 1977, No. 515, §1; Acts 2013, No. 250, §1.

NOTE:  See Acts 2013, No. 250, §2, relative to applicability

Art. 725. Reports of examinations and tests

When the court grants the relief sought by the defendant pursuant to Article 719 of this Code, it shall, upon the written motion of the state, condition its order by requiring the defendant to disclose to the state, and to permit or authorize the state, or an expert working with the state, to inspect and copy, photograph, or otherwise reproduce, and disclose to the district attorney any results of reports, or copies thereof, of physical and mental examinations and of scientific tests or experiments, made in connection with the particular case, that are in the possession, custody, control, or knowledge of the defendant, and intended for use at trial.  If the witness preparing the report will be called as an expert, the report shall contain the witness's area of expertise, his qualifications, a list of materials upon which his conclusion is based, and his opinion and the reason therefor.  If the expert witness has not reduced his results or reports to writing, or if the expert witness's written report does not contain the information required of an expert as provided in this Article, the defendant must produce for the state a written summary containing any information required to be produced pursuant to this Article but absent from a written report, if any, including the name of the expert witness, his qualifications, a list of materials upon which his conclusion is based, and his opinion and the reason therefor.

Added by Acts 1977, No. 515, §1; Acts 2013, No. 250, §1.

NOTE:  See Acts 2013, No. 250, §2, relative to applicability.

Art. 725.1. Disclosure by the defendant;  names of defense witnesses

A.  If the defendant moves, pursuant to Article 717 of this Code, for disclosure of the records of arrests and convictions of witnesses to be called by the state in its case in chief, the defendant shall disclose to the district attorney, prior to those witnesses being sworn, the name and date of birth of the witnesses to be called by the defendant in his case in chief.

B.(1)  If the defendant moves, pursuant to Article 716(D) of this Code, for disclosure of statements of witnesses to be called by the state in its case in chief, the defendant shall, upon motion by the state, disclose to the district attorney, and permit or authorize the district attorney to inspect and copy any written or recorded statements of any witness the defendant intends to call at trial.

(2)  For purposes of this Article:

(a)  "Trial" shall mean the phase of the case at which the defense responds to the state's attempt to meet its burden as to guilt, and specifically does not extend to pretrial matters or hearings, or to the penalty phase in capital prosecutions.

(b)  "Written or recorded statement of a witness" shall mean any audio or audio-video recording of an oral statement or interview of a witness, and any statement a witness writes or signs.

Acts 2012, No. 842, §1; Acts 2013, No. 250, §1; Acts 2014, No. 791, §§21, 23.

NOTE:  See Acts 2013, No. 250, §2, relative to applicability.

Art. 726. Notice of defense based upon mental condition

A.  If a defendant intends to introduce testimony relating to a mental disease, defect, or other condition bearing upon the issue of whether he had the mental state required for the offense charged, he shall not later than ten days prior to trial or such reasonable time as the court may permit, notify the district attorney in writing of such intention and file a copy of such notice with the clerk.  The court may for cause shown allow late filing of the notice or grant additional time to the parties to prepare for trial or make such other orders as may be appropriate.

B.  If there is a failure to give notice as required by Subsection A of this Article, the court may exclude the testimony of any witness offered by the defendant on the issue of mental condition.

Added by Acts 1977, No. 515, §1.

Art. 727. Notice of alibi

A.  Upon written demand of the district attorney stating the time, date, and place at which the alleged offense was committed, the defendant shall serve within ten days, or at such different time as the court may direct, upon the district attorney a written notice of his intention to offer a defense of alibi.  Such notice by the defendant shall state the specific place or places at which the defendant claims to have been at the time of the alleged offense and the names and addresses of the witnesses upon whom he intends to rely to establish such alibi.

B.  Within ten days thereafter, but in no event less than ten days before trial, unless the court otherwise directs, the district attorney shall serve upon the defendant or his attorney a written notice stating the names and addresses of the witnesses upon whom the state intends to rely to establish the defendant's presence at the scene of the alleged offense and any other witnesses to be relied on to rebut testimony of any of the defendant's alibi witnesses.

C.  If prior to or during trial, a party learns of an additional witness whose identity, if known, should have been included in the information furnished under Subsection A or B, the party shall promptly notify the other party or his attorney of the existence and identity of such additional witness.

D.  Upon the failure of either party to comply with the requirements of this rule, the court may exclude the testimony of any undisclosed witness offered by such party as to the defendant's absence from or presence at, the scene of the alleged offense.  This rule shall not limit the right of the defendant to testify in his own behalf.

E.  For good cause shown, the court may grant an exception to any of the requirements of Subsections A through D of this Section.

F.  Evidence of an intention to rely upon an alibi defense, later withdrawn, or of statements made in connection with such intention, is not admissible in any civil or criminal proceeding against the person who gave notice of the intention.

Added by Acts 1977, No. 515, §1.

Art. 728. Defense information and other matters not subject to disclosure

Except as specifically provided in this Chapter, this Chapter does not authorize the discovery or inspection of reports, memoranda, notes, or other internal documents made by the defendant or by agents of the defendant in connection with the investigation or defense of the case; or of any document, notes, or other items which contain the mental impressions of any attorney for the defendant or any investigator working on behalf of such attorney.

Added by Acts 1977, No. 515, §1; Acts 2013, No. 250, §1.

NOTE:  See Acts 2013, No. 250, §2, relative to applicability.

Part C. Regulation of Discovery

Art. 729. Time and scope of motion by defendant

A motion for discovery by a defendant under this Chapter may be filed in accordance with Article 521 or within such reasonable time as the court may permit.  The motion shall include all relief sought under this Chapter.  A subsequent motion may be considered before trial, but only upon a showing that such motion would be in the interest of justice.

Added by Acts 1977, No. 515, §1.  Amended by Acts 1978, No. 735, §2.

Art. 729.1. Court's disposition of motion for discovery;  vacation or restriction of order

A.  A motion for discovery shall not be denied without a contradictory hearing unless it appears on the face of the motion that, as a matter of law, the moving party is not entitled to the relief sought.

B.  Upon a sufficient showing by either party, the court may at any time vacate, restrict or defer an order for discovery, or make such other order as is appropriate.

Added by Acts 1977, No. 515, §1.

Art. 729.2. Time, place and manner of discovery and inspection

An order of the court granting relief under this Chapter shall specify the time, place, and manner of making the discovery and inspection and may prescribe such terms and conditions as are appropriate.

Added by Acts 1977, No. 515, §1.

Art. 729.3. Continuing duty to disclose

If, subsequent to compliance with an order issued pursuant to this Chapter and prior to or during trial, a party discovers additional evidence or decides to use additional evidence and such evidence is or may be, subject to discovery or inspection under the order issued, he shall promptly notify the other party and the court of the existence of the additional evidence, so that the court may modify its previous order or allow the other party to make an appropriate motion for additional discovery or inspection.

Added by Acts 1977, No. 515, §1.

Art. 729.4. Pretrial conferences

The court may by special order or pursuant to local rules require the district attorney and defense counsel to participate in a pretrial conference for the purpose of:

(1)  Disposing of discovery motions without formal hearing when there is no objection and no prior voluntary compliance with the provisions hereof; and

(2)  Consideration of such other matters as may aid in the prompt and fair disposition of the charge.

Added by Acts 1977, No. 515, §1.

Art. 729.5. Failure to comply;  sanctions

A.  If at any time during the course of the proceedings it is brought to the attention of the court that a party has failed to comply with this Chapter or with an order issued pursuant to this Chapter, the court may order such party to permit the discovery or inspection, grant a continuance, order a mistrial on motion of the defendant, prohibit the party from introducing into evidence the subject matter not disclosed, or enter such other order, other than dismissal, as may be appropriate.

B.  In addition to the sanctions authorized in Part A hereof, if at any time prior or subsequent to final disposition the court finds that either the state through the district attorney or assistant district attorney or the defendant or his counsel has willfully failed to comply with this Chapter or with an order issued pursuant to this Chapter, such failure shall be deemed to be a constructive contempt of court.

Added by Acts 1977, No. 515, §1.

Art. 729.6. Applicability of discovery

The rules of this Chapter shall be applied in all criminal cases tried in the district, parish, and city courts.  They shall be applicable following the institution of  prosecution by the return of a grand jury indictment, the filing of a bill of information, or the filing of an affidavit charging an offense.  However, the rules of this Chapter do not apply in city and parish courts to cases in which prosecution is instituted by affidavit for violations of city or parish ordinances defining traffic offenses.

Added by Acts 1977, No. 515, §1; Acts 2012, No. 842, §1.

Art. 729.7. Protection of witness identity

A.  Notwithstanding any other provision of law to the contrary, the district attorney or the defendant may delete or excise from any information required to be disclosed herein any information which identifies a witness if such party believes the witness's safety may be compromised by the disclosure.  If a party objects to the deletion or excision, he must do so by written motion.  The court shall maintain the deletion or excision if, at an ex parte proceeding which shall be recorded and maintained under seal, the party excising or deleting such information makes a prima facie showing that the witness's safety may be compromised by the disclosure.

B.  If the information excised by a party includes the substance, or any part thereof, of any written or recorded statement of the witness, that party must provide the excised substance, or any part thereof, to the other party immediately prior to the witness's testimony at the trial.

C.  If a judge finds that the party excising or deleting such information has  failed to present prima facie proof to support the deletion or excision of information related to a witness, then upon the motion of either party, the court shall order an automatic stay of all matters related to the disclosure of information about the witness and maintain all proceedings under seal during the time while the moving party seeks supervisory review to the appropriate reviewing courts with appellate jurisdiction, including the Louisiana Supreme Court.

D.  The rules of evidence shall not be applicable to the ex parte proceedings conducted pursuant to this Article.

Acts 2013, No. 250, §1.

NOTE: See Acts 2013, No. 250, §2, relative to applicability.

Title XXV. Compulsory Process

Chapter 1. General Section;  Subpoenas

Art. 731. Issuance of subpoenas

A.  The court shall issue subpoenas for the compulsory attendance of witnesses at hearings or trials when requested to do so by the state or the defendant.  Clerks of court may issue subpoenas except as provided in Article 739.

B.  The court and the clerks of court are authorized to place their signatures by electronic means on all subpoenas issued pursuant to this Chapter.

Amended by Acts 1980, No. 286, §1; Acts 2001, No. 54, §1; Acts 2007, No. 29, §1; Acts 2010, No. 58, §2.

Art. 732. Subpoena duces tecum

A subpoena may order a person to produce at the trial or hearing, books, papers, documents, or any other tangible things in his possession or under his control, if a reasonably accurate description thereof is given; but the court shall vacate or modify the subpoena if it is unreasonable or oppressive.

Art. 732.1. Subpoena duces tecum regarding sex offenses against victims who are minors

A.  The Department of Public Safety and Corrections, office of state police, the office of the attorney general, any agency that is a member of the Department of Justice Internet Crimes Against Children Task Force, or the sheriff's office investigating any sex offense as defined in R.S. 15:541 where the victim is a minor, or the offender reasonably believes that the victim is a minor, shall have the administrative authority to issue in writing and cause to be served a subpoena requiring the production and testimony described in Paragraph B of this Article upon reasonable cause to believe that an Internet service account, or online identifier as defined in R.S. 15:541(20), has been used in the commission of the offense, or in the exploitation or attempted exploitation of children.

B.  Except as provided in Paragraph C of this Article, a subpoena issued under this Article may require the production of the following records or other documentation relevant to the investigation:

(1)  Electronic mail address.

(2)  Internet username.

(3)  Internet protocol address.

(4)  Name of account holder.

(5)  Billing and service address.

(6)  Telephone number.

(7)  Account status.

(8)  Method of access to the Internet.

(9)  Automatic number identification records if access is by modem.

C.  The following information shall not be subject to disclosure pursuant to an administrative subpoena issued pursuant to the provisions of this Article but shall be subject to disclosure pursuant to other lawful process:

(1)  In-transit electronic communications.

(2)  Account memberships related to Internet groups, newsgroups, mailing lists, or specific areas of interest.

(3)  Account passwords.

(4)  Account content, including electronic mail in any form, address books, contacts, financial records, web surfing history, Internet proxy content, or files or other digital documents stored with the account or pursuant to use of the account.

D.  A subpoena issued pursuant to this Article shall describe the objects required to be produced and shall prescribe a return date with a reasonable period of time within which the objects can be assembled and made available.

E.  If no case or proceeding arises from the production of records or other documentation pursuant to this Section and the time limitation for initiation of prosecution has expired, the Department of Public Safety and Corrections, office of state police, the sheriff's office, or the office of the attorney general shall destroy the records and documentation.

F.  Except as provided in this Article, any information, records, or data reported or obtained pursuant to a subpoena authorized by the provisions of this Article shall remain confidential and shall not be disclosed unless in connection with a criminal case related to the subpoenaed materials.

G.  Any administrative subpoena issued pursuant to this Article shall comply with the provisions of 18 U.S.C. 2703(c)(2).

Acts 2010, No. 514, §1.

Art. 733. Form

A subpoena shall state the name of the court and the title of the case and shall command the attendance of a witness at a time and place specified.

Acts 1986, No. 505, §1.

Art. 734. Service of subpoena by sheriff;  investigators

A.  The sheriff of any parish in which the witness may be found or of the parish in which the proceeding is pending shall serve the subpoena and make a return thereof without delay.

B.  When the attorney general is involved in the conduct of a criminal case, investigators who are employed by the attorney general and who are commissioned law enforcement officers may serve any subpoena or subpoena duces tecum which is issued in that case.  If an investigator who is employed by the attorney general serves  a subpoena or a subpoena duces tecum under this Article, the investigator shall execute the return of service provided for in Article 736.

C.  When the district attorney is involved in the investigation or prosecution of a criminal case, investigators who are employed by that district attorney and who are P.O.S.T. certified commissioned law enforcement officers may serve any subpoena or subpoena duces tecum which is issued in that case.  Each investigator who serves a subpoena or subpoena duces tecum under the provisions of this Article shall execute the return of service required by Article 736.

Acts 2001, No. 304, §1; Acts 2001, No. 441, §1; Acts 2004, No. 499, §1.

Art. 735. Types of service

A.  Unless otherwise directed by the state or defendant, subpoenas shall be served by domiciliary service, personal service, or United States mail as provided in Paragraph B.  Personal service is made when the sheriff tenders the subpoena to the witness.  Domiciliary service is made when the sheriff leaves the subpoena at the dwelling house or usual abode of the witness with a person of suitable age and discretion residing therein as a member of the domiciliary establishment of the witness.

B.(1)  The criminal sheriff for the parish of Orleans and all other sheriffs throughout the state may serve all subpoenas directed to him to be served by mailing the said subpoenas in the United States Post Office, by either certified mail, return receipt requested, or first class mail to the addressee at the address listed on the subpoena.

(2)  Service by first class mail shall include a request that the enclosed return form be signed by the addressee and mailed to the sheriff.  If a signed return is not received by the sheriff, the subpoena shall be served by domiciliary or personal service as provided in Paragraph A.

(3)  Service by mail shall be considered personal service if the certified return receipt or the return form is signed by the addressee.  Service by mail shall be considered domiciliary service if the certified return receipt or the return form is signed by anyone other than the addressee.

C.  The criminal sheriff of the parish of Orleans and all other sheriffs throughout the state are hereby authorized to make service of subpoenas to law enforcement officers through the law enforcement officer's ranking officers or their designated representative, which, upon service thereof, shall have the same legal effect as if domiciliary service had been made upon the law enforcement officer named therein.  This service shall be made at the district stations or departmental headquarters of said law enforcement agency.  Service may consist of individual subpoenas or may consist of lists which include officer's name and badge number, case title, name of court, and date of commanded appearance.  Such lists may be served by the sheriff or his deputies by means of electronic transfer to printing devices located in the district stations or departmental headquarters.  The ranking officer, or his designated representative, shall sign for such subpoenas or indicate receipt by electronic verification code, and shall be required to notify the law enforcement officer named therein of receipt of the subpoenas or list.

D.  This type of subpoena service shall be known as departmental subpoena service of law enforcement officers, and shall not be construed to replace domiciliary or personal service for said officers, but shall be an additional method of service.

Amended by Acts 1968, No. 512, §1; Acts 1970, No. 116, §1; Acts 1974, No. 641, §1; Acts 1988, No. 294, §1; Acts 1989, No. 338, §1.

Art. 736. Return of subpoena by sheriff

A.  The sheriff shall endorse on a copy of the subpoena the date, place, type of service, and sufficient other data to show service in compliance with law.  When the witness cannot be found, the sheriff must set out in his return every fact that in his opinion justifies the return.  He shall sign and return the copy promptly after the service to the court that issued the subpoena.  The return, when received by the clerk, shall form part of the record and shall be considered prima facie correct.

B.  The criminal sheriff for the Parish of Orleans when serving subpoenas under the provisions of Paragraph A of Article 735 of the Louisiana Code of Criminal Procedure shall endorse on a copy of the subpoena the date and time of mailing, and shall attach the return receipt of delivery from the United States Post Office showing the disposition of the envelope bearing the subpoena.  He shall return the copy and the attached receipt to the court that issued the subpoena.  The return, when received by the clerk, shall form part of the record and shall be considered prima facie correct and shall constitute sufficient basis for an action to cite persons for contempt for failure to appear in response thereto.

Amended by Acts 1968, No. 511, §1.

Art. 737. Contempt;  attachment of witnesses failing to appear

Contumacious failure to comply with a subpoena, proof of service of which appears of record, constitutes a direct contempt of the court which issued the subpoena, and the court may order the witness attached and brought to court immediately.

If an order of attachment is issued, it may be executed in any parish by the sheriff of the parish from which the attachment was issued, or by the sheriff of the parish where the witness is found.

Chapter 2. Restrictions on Subpoenas

Art. 738. Number of witnesses allowed

At a trial or hearing, each defendant in a misdemeanor case shall be allowed to summon six witnesses at the expense of the parish, and in a felony case sixteen witnesses.  A defendant shall have the right of compulsory process for additional witnesses at his own expense.

Acts 2001, No. 1119, §1.

Art. 739. Indigent defendant

If a defendant is indigent and unable to pay for witnesses desired by him in addition to those summoned at the expense of the parish, he shall make a sworn application to the court for the additional witnesses.  The application must allege that the testimony is relevant and material and not cumulative and that the defendant cannot safely go to trial without it.

The court shall make a private inquiry into the facts, and if satisfied that the defendant is entitled to the privilege, it shall render an order permitting the defendant to subpoena additional witnesses at the expense of the parish.  If the application is denied, the court shall state the reasons for the denial in writing, which shall become part of the record.

Art. 740. Restrictions on subpoenas;  members of the legislature and personnel

No subpoena or order compelling discovery shall issue to compel the attendance of a member of the Louisiana Legislature, or legislative employee, except in strict conformity with the provision of R.S. 13:3667.1 and no subpoena or order compelling discovery shall issue to compel the attendance of a member or former member of the Louisiana Legislature, or legislative employee, except in strict conformity with the provision of R.S. 13:3667.3.  For purposes of this Article, "legislative employee" means the clerk of the House of Representatives, the secretary of the Senate, and employees of the House of Representatives, the Senate, and the Legislative Bureau.

Acts 2006, No. 690, §3, eff. June 29, 2006; Acts 2008, No. 374, §2, eff. June 21, 2008; Acts 2012, No. 519, §2.

Chapter 3. Obtaining Witnesses from Outside the State

Art. 741. Method of obtaining a witness from another state

If a person in any state, which by its laws has made provision for commanding persons within its borders to attend and testify in criminal prosecutions or grand jury investigations commenced or about to commence in this state, is a material witness in a prosecution pending in a court of record in this state, or in a grand jury investigation which has commenced or is about to commence, a judge of such court may issue a certificate under the seal of the court stating these facts and specifying the number of days the witness shall be required.  This certificate shall be presented to a judge of a court of record in the county (parish) in which the witness is found.

If the certificate recommends that the witness be taken into immediate custody and delivered to an officer of this state to assure his attendance in this state, the judge may direct that the witness be forthwith brought before him.  The judge being satisfied of the desirability of custody and delivery, for which determination the certificate shall be prima facie proof, may order that the witness be forthwith taken into custody and delivered to an officer of this state.  The order shall be sufficient authority for the officer to take the witness into custody and hold him unless and until he may be released by bail, recognizance, or order of the judge issuing the certificate.

If the witness is summoned to attend and testify in this state he shall be tendered the sum of ten cents a mile for each mile and five dollars for each day that he is required to travel and attend as a witness.  A witness who has appeared in accordance with the provisions of the summons shall not be required to remain within the state a longer period of time than the period mentioned in the certificate, unless otherwise ordered by the court.  If the witness fails without good cause to attend and testify as directed in the summons, he shall be punished in the manner provided for the punishment of any witness who disobeys a summons issued from a court of record of this state.

Art. 742. Method of summoning a witness in this state to testify in another state

If a judge of a court of record in any state which by its laws has made provision for commanding persons within that state to attend and testify in this state, certifies under seal of court that there is a criminal prosecution pending in that court, or that a grand jury investigation has commenced or is about to commence, that a person being within this state is a material witness in the prosecution or grand jury investigation, and that his presence will be required for a specified number of days, upon presentation of the certificate to any judge of a court of record in the parish (county) in which the person is, the judge shall fix a time and place for a hearing and shall make an order directing the witness to appear at a time and place certain for the hearing.

If at a hearing the judge determines that the witness is material and necessary, that it will not cause undue hardship to the witness to be compelled to attend and testify in the prosecution or grand jury investigation in the other state, and that the laws of the state in which the prosecution is pending, or grand jury investigation has commenced or is about to commence, will give to him protection from arrest and the service of civil and criminal process, he shall issue a summons, with a copy of the certificate attached, directing the witness to attend and testify in the court where the prosecution is pending, or where a grand jury investigation has commenced or is about to commence at a time and place specified in the summons.  In any such hearing the certificate shall be prima facie evidence of all the facts stated therein.

If the certificate recommends that the witness be taken into immediate custody and delivered to an officer of the requesting state to assure his attendance in the requesting state, the judge may, in lieu of notification of the hearing, direct that the witness be forthwith brought before him for the hearing.  The judge at the hearing being satisfied of the desirability of custody and delivery, for which determination the certificate shall be prima facie proof of desirability may, in lieu of issuing subpoena or summons, order that the witness be forthwith taken into custody and delivered to an officer of the requesting state.

If the witness, who is summoned as above provided, after being paid or tendered by some properly authorized person the sum of ten cents a mile for each mile and five dollars for each day, that he is required to travel and attend as a witness, fails without good cause to attend and testify as directed in the summons, he shall be punished in the manner provided by law for the punishment of any witness who disobeys a summons issued from a court of record in this state.

Art. 743. Exemption from arrest and service of process

If a person comes into this state in obedience to a summons directing him to attend and testify in this state, he shall not, while in this state pursuant to such summons or order, be subject to arrest or the service of process, civil or criminal, in connection with matters which arose before his entrance into this state under the summons.

If a person passes through this state while going to another state in obedience to a summons or order to attend and testify in that state or while returning therefrom, he shall not, while so passing through this state be subject to arrest, or the service of process, civil or criminal, in connection with matters which arose before his entrance into this state under the summons or order.

Art. 744. Witness;  state;  defined

"Witness" as used in Articles 741 through 743 shall include a person whose testimony is relevant and material and desired in any proceeding or investigation by a grand jury or in a criminal action, prosecution, or proceeding.

"State" shall include any territory of the United States and the District of Columbia.

Art. 745. Uniformity of interpretation

            Articles 741 through 744 shall be so interpreted and construed as to effect their general purpose to make uniform the law of the states which enact similar provisions.

Title XXVI. Trial Procedure

Chapter 1. General Provisions

Art. 761. Commencement of trial

A jury trial commences when the first prospective juror is called for examination.  A trial by a judge alone commences when the first witness is sworn.

Art. 761.1. Homicide victim's picture;  possession by family member in courtroom

In the case of a homicide, and with prior court approval, one member of the victim's family shall be authorized to possess in the courtroom, during the trial of the case a photograph of the deceased victim that is not larger than eight by ten inches and is not inflammatory in nature.  Nothing in this Article shall preclude the admission into evidence of a photograph of the victim that the court deems admissible.

Acts 1999, No. 1066, §1.

Art. 762. Place of sessions of court

Sessions of court shall be held at the parish courthouse and, if there is more than one courthouse in a parish, sessions may be held at any such courthouse, or sessions may be held at places within the parish other than the courthouse or courthouses in the discretion of the court:

(1)  To take the testimony of witnesses who are so incapacitated that they cannot attend the trial in the parish courthouse;

(2)  To allow the jury or judge to view the place where the crime or any material part thereof is alleged to have occurred, or to view an object which is admissible in evidence but which is difficult to produce in court.  At this view, the court shall not permit the taking of evidence except in connection with the place or object; or

(3)  When the courthouse in which the sessions are usually held is unsuitable for use, or there is no courthouse.

Amended by Acts 1972, No. 354, §1.

Art. 763. Proceedings on holidays

Trials and hearings may commence or continue on a holiday or half-holiday in the discretion of the court.

Art. 764. Exclusion of witnesses

The exclusion of witnesses is governed by Louisiana Code of Evidence Article 615.

Acts 1986, No. 968, §1; Acts 1988, No. 515, §3, eff. Jan. 1, 1989.

{{NOTE:  SEE ACTS 1988, NO. 515, §12.}}

Art. 765. Normal order of trial

The normal order of trial shall be as follows:

(1)  The selection and swearing of the jury;

(2)  The reading of the indictment;

(3)  The reading of the defendant's plea on arraignment;

(4)  The opening statements of the state and of the defendant;

(5)  The presentation of the evidence of the state, and of the defendant, and of the state in rebuttal.  The court in its discretion may permit the introduction of additional evidence prior to argument;

(6)  The argument of the state, the defendant, and the state in rebuttal;

(7)  The court's charge;

(8)  The announcement of the verdict or mistrial in jury cases, or of the judgment in nonjury cases; and

(9)  The discharge of the jury in jury cases.

When there is more than one defendant, the court shall determine the order of trial as between them.

A defendant may waive his opening statement.

Art. 766. Opening statement by state;  scope

The opening statement of the state shall explain the nature of the charge, and set forth, in general terms, the nature of the evidence by which the state expects to prove the charge.

Art. 767. Same;  prohibition against adverting to confessions

The state shall not, in the opening statement, advert in any way to a confession or inculpatory statement made by the defendant unless the statement has been previously ruled admissible in the case.

Acts 1995, No. 1278, §1.

Art. 768. Same;  use of confession or inculpatory statement;  notice to defendant prior to opening statement

Unless the defendant has been granted pretrial discovery, if the state intends to introduce a confession or inculpatory statement in evidence, it shall so advise the defendant in writing prior to beginning the state's opening statement.  If it fails to do so a confession or inculpatory statement shall not be admissible in evidence.

Amended by Acts 1982, No. 735, §1.

Art. 769. Same;  effect on introduction of evidence

Evidence not fairly within the scope of the opening statement of the state shall not be admitted in evidence.

If the state offers evidence that was inadvertently and in good faith omitted from the opening statement, the court, in its discretion may admit the evidence if it finds that the defendant is not taken by surprise or prejudiced in the preparation of his defense.

Art. 770. Prejudicial remarks;  basis of mistrial

Upon motion of a defendant, a mistrial shall be ordered when a remark or comment, made within the hearing of the jury by the judge, district attorney, or a court official, during the trial or in argument, refers directly or indirectly to:

(1)  Race, religion, color or national origin, if the remark or comment is not material and relevant and might create prejudice against the defendant in the mind of the jury;

(2)  Another crime committed or alleged to have been committed by the defendant as to which evidence is not admissible;

(3)  The failure of the defendant to testify in his own defense; or

(4)  The refusal of the judge to direct a verdict.

An admonition to the jury to disregard the remark or comment shall not be sufficient to prevent a mistrial.  If the defendant, however, requests that only an admonition be given, the court shall admonish the jury to disregard the remark or comment but shall not declare a mistrial.

Art. 771. Admonition

In the following cases, upon the request of the defendant or the state, the court shall promptly admonish the jury to disregard a remark or comment made during the trial, or in argument within the hearing of the jury, when the remark is irrelevant or immaterial and of such a nature that it might create prejudice against the defendant, or the state, in the mind of the jury:

(1)  When the remark or comment is made by the judge, the district attorney, or a court official, and the remark is not within the scope of Article 770; or

(2)  When the remark or comment is made by a witness or person other than the judge, district attorney, or a court official, regardless of whether the remark or comment is within the scope of Article 770.

In such cases, on motion of the defendant, the court may grant a mistrial if it is satisfied that an admonition is not sufficient to assure the defendant a fair trial.

Art. 772. Comment on facts by judge in jury's presence prohibited

The judge in the presence of the jury shall not comment upon the facts of the case, either by commenting upon or recapitulating the evidence, repeating the testimony of any witness, or giving an opinion as to what has been proved, not proved, or refuted.

Art. 773. Order of evidence;  foundation

Neither the state nor the defendant can be controlled by the court as to the order in which evidence shall be adduced.  The procedure for laying a foundation is provided in the Louisiana Code of Evidence.

Acts 1988, No. 515, §3, eff. Jan. 1, 1989.

{{NOTE:  SEE ACTS 1988, NO. 515, §12.}}

Art. 774. Argument;  scope

The argument shall be confined to evidence admitted, to the lack of evidence, to conclusions of fact that the state or defendant may draw therefrom, and to the law applicable to the case.

The argument shall not appeal to prejudice.

The state's rebuttal shall be confined to answering the argument of the defendant.

Art. 775. Mistrial;  grounds for

A mistrial may be ordered, and in a jury case the jury dismissed, when:

(1)  The defendant consents thereto;

(2)  The jury is unable to agree upon a verdict;

(3)  There is a legal defect in the proceedings which would make any judgment entered upon a verdict reversible as a matter of law;

(4)  The court finds that the defendant does not have the mental capacity to proceed;

(5)  It is physically impossible to proceed with the trial in conformity with law; or

(6)  False statements of a juror on voir dire prevent a fair trial.

Upon motion of a defendant, a mistrial shall be ordered, and in a jury case the jury dismissed, when prejudicial conduct in or outside the courtroom makes it impossible for the defendant to obtain a fair trial, or when authorized by Article 770 or 771.

A mistrial shall be ordered, and in a jury case the jury dismissed, when the state and the defendant jointly move for a mistrial.

Art. 775.1. Automatic stay following order of mistrial

If a judge orders a mistrial, then upon motion of either the state or the defendant, the court shall order an automatic twenty-four-hour stay of all proceedings in which either the state or the defendant may take an emergency writ application to the appropriate reviewing courts with appellate jurisdiction, including the Louisiana Supreme Court.  The jury shall not be released pending the stay unless both the state and defendant agree to release the jury.

Acts 2004, No. 413, §1; Acts 2011, No. 87, §1.

Art. 776. Oath of witness

Before a witness is permitted to testify he shall be sworn, in accordance with Article 14.

Art. 777. Recordation of proceedings

A record of the trial proceedings shall be made in accordance with other provisions of law.

Art. 778. Motion for acquittal

In a trial by the judge alone the court shall enter a judgment of acquittal on one or more of the offenses charged, on its own motion or on that of defendant, after the close of the state's evidence or of all the evidence, if the evidence is insufficient to sustain a conviction.

If the court denies a defendant's motion for a judgment of acquittal at the close of the state's case, the defendant may offer its evidence in defense.

Amended by Acts 1975, No. 527, §1.

Chapter 2. Trial Without Jury

Art. 779. Trial of misdemeanors

A.  A defendant charged with a misdemeanor in which the punishment, as set forth in the statute defining the offense, may be a fine in excess of one thousand dollars or imprisonment for more than six months shall be tried by a jury of six jurors, all of whom must concur to render a verdict.

B.  The defendant charged with any other misdemeanor shall be tried by the court without a jury.

Amended by Acts 1968, No. 635, §1; Acts 1974, Ex.Sess., No. 23, §1, eff. Jan. 1, 1975; Acts 1975, 1st Ex.Sess., No. 16, §1, eff. Jan. 28, 1975; Acts 1979, No. 56, §1; Acts 1986, No. 852, §1, eff. July 10, 1986; Acts 1988, No. 202, §1.

Art. 780. Right to waive trial by jury

A.  A defendant charged with an offense other than one punishable by death may knowingly and intelligently waive a trial by jury and elect to be tried by the judge.

B.  The defendant shall exercise his right to waive trial by jury in accordance with Article I, Section 17 of the Constitution of Louisiana. The waiver shall be by written motion filed in the district court not later than forty-five days prior to the date the case is set for trial.  The motion shall be signed by the defendant and shall also be signed by defendant's counsel unless the defendant has waived his right to counsel.

C.  With the consent of the district attorney the defendant may waive trial by jury within forty-five days prior to the commencement of trial.

D.  A waiver of trial by jury is irrevocable and cannot be withdrawn by the defendant.

Amended by Acts 1974, Ex.Sess., No. 24, §1, eff. Jan. 1, 1975; Acts 1975, 1st Ex.Sess., No. 16, §1, eff. Jan. 28, 1975; Acts 1985, No. 801, §1; Acts 2013, No. 343, §1, eff. June 17, 2013.

Art. 781. Charges in cases tried without a jury

When a case is tried without a jury the state or the defendant may request the court to charge itself in accordance with written charges presented to the court.  The requested charges shall be governed by the rules of procedure relative to requested charges in jury cases.

Chapter 3. Trial by Jury

Section 1. General Provisions

Art. 782. Number of jurors composing jury;  number which must concur;  waiver

            A. A case in which punishment may be capital shall be tried by a jury of twelve jurors, all of whom must concur to render a verdict. A case for an offense committed prior to January 1, 2019, in which punishment is necessarily confinement at hard labor shall be tried by a jury composed of twelve jurors, ten of whom must concur to render a verdict. A case for an offense committed on or after January 1, 2019, in which the punishment is necessarily confinement at hard labor shall be tried before a jury of twelve persons, all of whom must concur to render a verdict. A case in which the punishment may be confinement at hard labor shall be tried by a jury composed of six jurors, all of whom must concur to render a verdict.

            B. Trial by jury may be knowingly and intelligently waived by the defendant except in capital cases.

            Amended by Acts 1974, Ex.Sess., No. 25, §1, eff. Jan. 1, 1975; Acts 1975, 1st Ex.Sess., No. 16, §1, eff. Jan. 28, 1975; Acts 1979, No. 56, §2; Acts 2018, No. 493, §1, eff. Jan. 1, 2019, if const. amend. is ratified.

Art. 783. Excusing, tendering, and attachment of members of the venire

A.  The court may excuse a member of the petit jury venire at any time prior to the time he is sworn as a juror to try a particular case.  The panel shall be selected from the remaining members of the petit jury venire.  The court, either on its own motion, or that of the state or a defendant, may order the attachment of an absent and unexcused petit jury venireman.

B.  If jury service, whether criminal or civil, would result in undue hardship or extreme inconvenience, the district court may excuse a person from such service either prior to or after his selection for the general venire, jury pool, or jury wheel.  The court may take such action on its own initiative or on recommendation of an official or employee designated by the court.

C.  No person or group of persons shall be automatically excused.

D.  In the event a person is excused because jury service would result in undue hardship or extreme inconvenience, the court may order that person's name be placed again in the general venire or in a central jury pool.

Amended by Acts 1976, No. 212, §2; Acts 1977, No. 378, §1.

Art. 784. Method of selecting panel

In selecting a panel, names shall be drawn from the petit jury venire indiscriminately and by lot in open court and in a manner to be determined by the court.

In those judicial district courts, including the Criminal District Court for the parish of Orleans, wherein use of a jury pool has been authorized by law, the petit jury panel shall be selected by random, indiscriminate choice in a manner to be determined by the rules of the court in which the jury panel is selected.

Amended by Acts 1977, No. 556, §1, eff. July 15, 1977.

Art. 785. Tales jurors

A.  In a parish other than Orleans having more than one division of court, holding petit jury terms simultaneously, when a petit jury venire of one division is or is about to be exhausted before a trial jury is impaneled, the judge of that division, with the consent of the judge of a division that has not exhausted its petit jury venire, may order the petit jury venire of the latter division or such portion thereof not being used by the latter division, to report to his division to serve as tales jurors.  The names of the petit jury veniremen so ordered to report shall be drawn as provided by Article 784 for examination as prospective trial jurors.  Those who are impaneled as trial jurors shall serve as though regularly selected as tales jurors.  Those who are not selected as trial jurors shall be ordered to report back to the division of court in which they were previously serving as petit jury veniremen.

B.  In all other instances, except as provided in Article 409.1 of this code, when the petit jury venire is or is about to be exhausted before a trial jury is impaneled, the judge may order the secretary of the jury commission or the clerk of court to draw indiscriminately and by lot such number of tales jurors from the general venire box as in the opinion of the court may be necessary to complete the impaneling of the trial jury.

C.  Immediately after the drawing of tales jurors, they shall be summoned to attend court at such time as the court may direct, and shall be subject to the same duties as petit jurors.

D.  In parishes other than Orleans, the judge may order the summoning of tales jurors from among the bystanders or persons in or about the courthouse, in place of the drawing of tales jurors.

E.  When called, tales jurors shall be selected for completion of the panel in accordance with Article 784.

Amended by Acts 1975, No. 406, §1; Acts 1975, No. 696, §1.

Art. 786. Examination of jurors

The court, the state, and the defendant shall have the right to examine prospective jurors.  The scope of the examination shall be within the discretion of the court.  A prospective juror, before being examined, shall be sworn to answer truthfully questions asked him relative to his qualifications to serve as a juror in the case.

Art. 787. Disqualification of petit jurors in particular cases

The court may disqualify a prospective petit juror from service in a particular case when for any reason doubt exists as to the competency of the prospective juror to serve in the case.

Art. 788. Tendering jurors

A.  After the examination provided by Article 786, a prospective juror may be tendered first to the state, which shall accept or challenge him.  If the state accepts the prospective juror, he shall be tendered to the defendant, who shall accept or challenge him.  When a prospective juror is accepted by the state and the defendant, he shall be sworn immediately as a juror.  This Article is subject to the provisions of Articles 795 and 796.

B.  If the court does not require tendering of jurors, it shall by local rule provide for a system of simultaneous exercise of challenges.

Acts 1983, No. 603, §1.

Art. 789. Alternate jurors

A.  The court may direct that not more than six jurors in addition to the regular panel be called and impaneled to sit as alternate jurors.  Alternate jurors, in the order in which they are called, shall replace jurors who become unable to perform or disqualified from performing their duties.  Alternate jurors shall be drawn in the same manner, shall have the same qualifications, shall be subject to the same examination and challenges for cause, shall take the same oath, and shall have the same functions, powers, facilities, and privileges as the principal jurors.  If the court determines that alternate jurors are desirable in the case, the court shall determine the number to be chosen.  The regular peremptory challenges allowed by law shall not be used against the alternate jurors.  The court shall determine how many additional peremptory challenges shall be allowed, and each defendant shall have an equal number of such challenges.  The state shall have as many peremptory challenges as the defense.  The additional peremptory challenges may be used only against alternate jurors.  Except in capital cases, an alternate juror who does not replace a principal juror may be discharged when the jury retires to consider its verdict.

B.  In a capital case, at the conclusion of the guilt phase of the trial, alternate jurors that have not replaced principal jurors shall not be discharged, but shall be sequestered from other members of the jury until the jury has reached a verdict.  If a sentencing hearing is mandated, the alternate jurors will be returned to the jury and will hear the evidence presented at the sentencing hearing and will be available to replace principal jurors.

C.  If the court, as provided in Paragraph A, replaces a principal juror with an alternate juror after deliberations have begun, the court shall order the jury to begin deliberations anew.

Acts 1995, No. 364, §1; Acts 1995, No. 1273, §1.

Art. 790. Swearing of jurors

When selection of jurors and alternate jurors has been completed, and all issues properly raised under Article 795 have been resolved, the jurors shall then be sworn together to try the case in a just and impartial manner, each to the best of his judgment, and to render a verdict according to the law and the evidence.

Acts 1990, No. 524, §1.

Art. 791. Sequestration of jurors and jury

A.  A jury is sequestered by being kept together in the charge of an officer of the court so as to be secluded from outside communication, except as permitted by R.S. 18:1307.2.

B.  In capital cases, after each juror is sworn he shall be sequestered, unless the state and the defense have jointly moved that the jury not be sequestered.

C.  In noncapital cases, the jury shall be sequestered after the court's charge and may be sequestered at any time upon order of the court.

Amended by Acts 1981, No. 475, §1; Acts 1995, No. 1172, §1; Acts 1995, No. 1277, §1.

Art. 792. Selection of foreman

When the jury has retired, the jurors shall select a foreman who shall preside over their deliberations and sign the verdict.

Art. 793. Use of evidence in jury room;  reading of recorded testimony;  jurors' notes

A.  Except as provided in Paragraph B of this Article, a juror must rely upon his memory in reaching a verdict.  He shall not be permitted to refer to notes or to have access to any written evidence.  Testimony shall not be repeated to the jury.  Upon the request of a juror and in the discretion of the court, the jury may take with it or have sent to it any object or document received in evidence when a physical examination thereof is required to enable the jury to arrive at a verdict.

B.  A juror shall be permitted to take notes when agreement to granting such permission has been made between the defendant and the state in open court but not within the presence of the jury.  The court shall provide the needed writing implements. Jurors may, but need not, take notes and such notes may be used during the jury's deliberations but shall not be preserved for review on appeal.  The trial judge shall ensure the confidentiality of the notes during the course of trial and the jury's deliberation and shall cause the notes to be destroyed immediately upon return of the verdict.

C.  The lack of consent by either the defendant or the state to allow a juror to take notes during a trial shall not be communicated to the jury.

Acts 2001, No. 465, §1.

Art. 794. Removal of jury

A.  The court may, and at the request of the state or a defendant shall, remove the jury from the courtroom when the court hears matters to be decided by the court alone.  The court may remove the jury from the courtroom at any time when considered in the best interest of justice.

B.  The removal of the jury when the court is asked to make rulings on evidentiary matters is controlled by the Louisiana Code of Evidence.

Acts 1988, No. 515, §3, eff. Jan. 1, 1989.

{{NOTE:  SEE ACTS 1988, NO. 515, §12.}}

Section 2. Challenges

Art. 795. Time for challenges;  method;  peremptory challenges based on race or gender;  restrictions

            A. A juror shall not be challenged for cause after having been temporarily accepted pursuant to Article 788(A) unless the challenging party shows that the cause was not known to him prior to that time.

            B.(1) Peremptory challenges shall be exercised prior to the swearing of the jury panel.

            (2) Peremptory challenges of jurors shall be made and communicated to the court in a side bar conference of the judge, the attorneys conducting the examination and selection of jurors, and the defendant in a case in which the defendant chooses to represent himself. The conference shall be conducted in a manner that only the court, the attorneys, and the defendant in a case in which the defendant chooses to represent himself, are aware of the challenges made until the court announces the challenges without reference to any party or attorney in the case.

            C. No peremptory challenge made by the state or the defendant shall be motivated in substantial part on the basis of the race or gender of the juror. If an objection is made that a challenge was motivated in substantial part on the basis of race or gender, and a prima facie case supporting that objection is made by the objecting party, the court shall demand a satisfactory race or gender neutral reason for the exercise of the challenge. Such demand and disclosure shall be made outside of the hearing of any juror or prospective juror. The court shall then determine whether the challenge was motivated in substantial part on the basis of race or gender.

            D. The court shall allow to stand each peremptory challenge exercised for a race or gender neutral reason either apparent from the examination or disclosed by counsel when required by the court. The provisions of Paragraph C of this Article and this Paragraph shall not apply when both the state and the defense have exercised a challenge against the same juror.

            E. The court shall allow to stand each peremptory challenge for which a satisfactory racially neutral or gender neutral reason is given. Those jurors who have been peremptorily challenged and for whom no satisfactory racially neutral or gender neutral reason is apparent or given may be ordered returned to the panel, or the court may take such other corrective action as it deems appropriate under the circumstances. The court shall make specific findings regarding each such challenge.

            Amended by Acts 1986, No. 323, §1; Acts 1990, No. 547, §1; Acts 1990, No. 713, §1; Acts 1993, No. 1019, §1; Acts 2008, No. 669, §1; Acts 2019, No. 235, §1.

 

Art. 796. Removal of juror after swearing

If it is discovered after a juror has been accepted and sworn, that he is incompetent to serve, the court may, at any time before the first witness is sworn, order the juror removed and the panel completed in the ordinary course.

Art. 797. Challenge for cause

The state or the defendant may challenge a juror for cause on the ground that:

(1)  The juror lacks a qualification required by law;

(2)  The juror is not impartial, whatever the cause of his partiality.  An opinion or impression as to the guilt or innocence of the defendant shall not of itself be sufficient ground of challenge to a juror, if he declares, and the court is satisfied, that he can render an impartial verdict according to the law and the evidence;

(3)  The relationship, whether by blood, marriage, employment, friendship, or enmity between the juror and the defendant, the person injured by the offense, the district attorney, or defense counsel, is such that it is reasonable to conclude that it would influence the juror in arriving at a verdict;

(4)  The juror will not accept the law as given to him by the court; or

(5)  The juror served on the grand jury that found the indictment, or on a petit jury that once tried the defendant for the same or any other offense.

Art. 798. Causes for challenge by the state

It is good cause for challenge on the part of the state, but not on the part of the defendant, that:

(1)  The juror is biased against the enforcement of the statute charged to have been violated, or is of the fixed opinion that the statute is invalid or unconstitutional;

(2)  The juror tendered in a capital case who has conscientious scruples against the infliction of capital punishment and makes it known:

(a)  That he would automatically vote against the imposition of capital punishment without regard to any evidence that might be developed at the trial of the case before him;

(b)  That his attitude toward the death penalty would prevent or substantially impair him from making an impartial decision as a juror in accordance with his instructions and his oath; or

(c)  That his attitude toward the death penalty would prevent him from making an impartial decision as to the defendant's guilt; or

(3)  The juror would not convict upon circumstantial evidence.

Amended by Acts 1968, Ex.Sess., No. 13, §1, emerg.  eff. Dec. 27, 1968, at 1:00 P.M; Acts 1990, No. 366, §1.

Art. 799. Number of peremptory challenges

In trials of offenses punishable by death or necessarily by imprisonment at hard labor, each defendant shall have twelve peremptory challenges, and the state twelve for each defendant.  In all other cases, each defendant shall have six peremptory challenges, and the state six for each defendant.

Acts 1983, No. 495, §1; Acts 1985, No. 952, §1.

Art. 799.1. Challenges;  use of all available challenges

Notwithstanding any other provision of law to the contrary, and specifically notwithstanding the provisions of Article 788, in the jury selection process, the state and the defendant may exercise all peremptory challenges available to each side, respectively, prior to the full complement of jurors being seated and before being sworn in by the court, and the state or the defendant may exercise any remaining peremptory challenge to one or more of the jurors previously accepted.  No juror shall be sworn in until both parties agree on the jury composition or have exercised all challenges available to them, unless otherwise agreed to by the parties.

Acts 2006, No. 71, §1.

Art. 800. Objection to ruling on challenge for cause

           A. A defendant may not assign as error a ruling refusing to sustain a challenge for cause made by him, unless an objection thereto is made at the time of the ruling. The nature of the objection and grounds therefor shall be stated at the time of objection.

           B. The erroneous allowance to the state of a challenge for cause does not afford the defendant a ground for complaint, unless the effect of such ruling is the exercise by the state of more peremptory challenges than it is entitled to by law.

           Acts 1983, No. 181, §1.

Section 3. Charging the Jury