__________________ DISTRICT OF TEXAS
										
__________________  DIVISION

UNITED STATES OF AMERICA	                 §
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MOTION FOR EVIDENCE FAVORABLE TO THE DEFENDANT
AND BRIEF IN SUPPORT THEREOF

TO THE HONORABLE ///, JUDGE, UNITED STATES DISTRICT COURT FOR THE /// DISTRICT OF TEXAS, /// DIVISION:

	COMES NO W ///, Defendant in the above styled and numbered cause, and moves this honorable Court to order the Government to reveal to him\her any evidence that is exculpatory or favorable to him\her and any evidence that could lead to evidence that is exculpatory or favorable and in support thereof would show the Court as follows:
I.
MOTION
	For purposes of this Motion, the Defendant submits the following would be exculpatory:
	1.	Any evidence that tends to show that the Defendant did not commit the acts alleged in the indictment;

	2.	Any evidence that tends to show that the Defendant committed the acts alleged in the indictment in some manner other than in the manner alleged;

	3.	Any evidence that would be in conflict or contradictory with the evidence the government intends to introduce at trial;

	4.	Any inconsistent statements made at any time, by any government witness, informant or agent, concerning the involvement of this Defendant or any of the Defendants in the acts alleged in the indictment;

	5.	Any physical evidence that is inconsistent with the Defendant's guilt;

	6.	Any evidence that could be used to impeach the Government's witnesses in this case;
	7.	Any evidence that the Defendant did not make or cause to be made the false and fraudulent pretenses, representations and promises that are subject of this indictment;

	8.	Any evidence that the Defendant did not know that the pretenses, representations and promises that were made were false;

	9.	That the Defendant did not talk to or cause someone to talk to any of the complaining witnesses alleged in the indictment;

	10.	Any evidence that the Defendant did not deposit or cause to be deposited into any financial institution the proceeds of the unlawful activities alleged in the indictment or that someone else may have caused such deposits to be made;

	11.	Any other evidence that is in any way exculpatory to the Defendant or in any way could raise a reasonable doubt as to his guilt;

	12.	Facts or evidence indicating the unreliability of any prosecution witness;

	13.	Facts, evidence or information indicating the untruthfulness of a prosecution witness;

	14.	Instructions to a prosecution witness not to speak with defense counsel or to do so only in the presence of a prosecution agent or attorney;

	15.	Any promises, benefits, concessions or consideration provided to any witness by the government;

	16.	Any documents, reports, records, photographs, film, audio or video tapes tending to show that any government witness was or is a member of or associated with the __________ or any other group or organization holding similar social or political beliefs or attitudes.

	The Defendant would request that the government’s attorney be ordered to examine his files and to question the government’s agents, informants or other persons working with the government in this case, as to their knowledge of any such evidence or materials.  Defendant would further request that he be allowed to question the government’s attorney and the government's agents concerning their knowledge of exculpatory evidence and diligence in attempting to locate such evidence.
II.
BRIEF
	Material or information in the hands of the prosecution is discoverable “where the evidence is material to guilt or to punishment.”  It includes evidence “favorable to the accused either direct or impeaching”.  Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d. 215 (1963); Giles v. Maryland, 386 U.S. 66, 76 (1967); Giglio v. United States, 405 U.S. 150 (1972); Kyles v. Whitley, 514 U.S. 419 (1995).  The obligation to disclose favorable evidence to the accused is that of the Government and failure to disclose such information is not excused merely because the prosecutor did not have actual knowledge of such favorable evidence.  United States v. Auten, 632 F.2d 478 (5th Cir.1980); Rhinehart v. Rhay, 440 F.2d. 725 (9th Cir.1971), cert. den. 404 U.S. 825.  “The duty of disclosure effects not only the prosecutor, but the Government as a whole, including its investigative agencies”.  United States v. Bryant, 439 F.2d 642, 658 (DC Cir. 1971).

	Further, the Texas State Bar Rules require a prosecutor in a criminal case to “make timely disclosure to the defense of all evidence or information known to the prosecutor that tends to negate the guilt of the accused or mitigate the offense, and in connection with sentencing, disclose to the defense and the tribunal all unprivileged mitigating information known to the prosecutor....”  Rule 3.09(d), Article 10, Section 9, State Bar Rules.
	The Government's duty of disclosure is based upon the Defendant’s right to due process of law under the Fifth Amendment to the United States Constitution, as interpreted by the courts.  Because fundamental rights are involved the Government has a duty to disclose any evidence that is arguably favorable to a Defendant’s case.  The evidence should be disclosed promptly upon its discovery by the Government.
	The Government’s duty of disclosure is based upon the Defendant’s right to due process of law under the Fifth Amendment to the United States Constitution, as interpreted by the courts.  Because fundamental rights are involved the Government has a duty to disclose any evidence that is arguably favorable to a Defendant’s case.  The evidence should be disclosed promptly upon its discovery by the Government.
	The Defendants have given examples in their motion of what they consider to be exculpatory evidence.  That list is not exhaustive and the Governments duty of production should not be limited to those specific items but should be interpreted broadly to include any item that is arguably favorable to the Defendants.
	WHEREFORE, the Defendant prays that his motion be in all things GRANTED. 
							Respectfully Submitted,

							___________________________________
							Name
							State Bar No. 
							Address
							City, State, Zip
							Telephone
							Attorney for Defendant

	

__________________ DISTRICT OF TEXAS
										
__________________  DIVISION

UNITED STATES OF AMERICA	                 §
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_______________________________               §

ORDER

	CAME ON TO BE CONSIDERED Defendant ///’s Motion To Compel Disclosure of Exculpatory Evidence. Having considered the motion, authorities and argument of counsel it is hereby:
	(GRANTED, and the Government is ordered to provide defense counsel any evidence that is exculpatory or favorable to the Defendant or that could lead to evidence that is exculpatory or favorable to the Defendant, on or before ____________________, 20 _____)
	(DENIED, to which the Defendant duly excepts).
	IT IS SO ORDERED.
	SIGNED on ____________________, 20_____.

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							JUDGE PRESIDING