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Code of Criminal Procedure

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, pornography involving juveniles as defined in R.S. 14:81.1, or unlawful posting of criminal activity for notoriety and publicity as defined in R.S. 14:107.4, 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, pornography involving juveniles as defined in R.S. 14:81.1, or unlawful posting of criminal activity for notoriety and publicity as defined in R.S. 14:107.4, 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; Acts 2020, No. 353, §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.