CAUSE NO. _______________

THE STATE OF TEXAS				IN THE DISTRICT COURT 
	
VS.							_____JUDICIAL DISTRICT

JOHN DOE						_______ COUNTY, TEXAS

MOTION TO PRODUCE EXCULPATORY AND MITIGATING EVIDENCE IN REGARD TO ALLEGATIONS AGAINST DEFENDANT OF SEXUAL ASSAULT OF A CHILD OR INDECENCY WITH A CHILD

TO THE HONORABLE JUDGE OF SAID COURT:

	NOW COMES JOHN DOE, hereinafter Defendant, by and through his attorney of record, and moves this Court to direct the State of Texas by and through its District Attorney to disclose to Defendant herein and to his attorney all exculpatory and/or mitigating evidence and/or facts within the possession, custody, or control of the District Attorney or any of his agents the existence of which is known, or by the exercise of due diligence may become known, to said District Attorney. 

	FURTHER, Defendant requests that the individual prosecutor assigned to prosecute this case be ordered, pursuant to Brady v. Maryland, 373 U.S. 83 (1963), Kyles v. Whitley, 514 U.S. 419, 115 S. Ct. 1555 (1995), and Rule 3.09(d) Texas Disciplinary Rules of Professional Conduct, to exercise his/her affirmative duty to seek out and learn of any evidence favorable to Defendant and to provide Defendant with any evidence or information known to, or in the possession of, or under the direct or constructive control of agents of the State, which is inconsistent with the alleged guilt of Defendant or relevant to the punishment which should be assessed against Defendant.  As the United States Supreme Court has stated,"THIS IN TURN MEANS THAT THE INDIVIDUAL PROSECUTOR HAS A DUTY TO LEARN OF ANY FAVORABLE EVIDENCE KNOWN TO OTHERS ACTING ON THE GOVERNMENT'S BEHALF IN THE CASE, INCLUDING THE POLICE".  Kyles v. Whitley, 514 U.S. at 437.
By way of example, this includes but is not limited to any prior bad acts or disciplinary actions of the officers or agents of the State involved in the arrest or investigation of defendant, or any other law enforcement officers. 
In Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963), the Supreme Court held that the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution." Id., 373 U.S. at 87, 83 S. Ct. at 1196. 
In United States v. Agurs, 427 U.S. 97, 96 S. Ct. 2392, 49 L. Ed. 2d 342 (1976), the Supreme Court extended the Brady holding to apply to material exculpatory evidence even in the absence of a specific request, stating that "there are situations in which evidence is obviously of such substantial value to the defense that elementary fairness requires it to be disclosed even without a specific request." Id., 427 U.S. at 110-11, 96 S. Ct. 2401. 
Furthermore, where a defendant is diligent and makes a specific and relevant request for Brady information, failure of the prosecution to respond is reversible error if such evidence might have had an effect on the outcome of the trial. Ex parte Turner, 545 S.W.2d 470 (Tex.Cr.App. 1977); United States v. Agurs, 427 U.S. 97, 96 S. Ct. 2392, 49 L. Ed. 2d 342 (1976).

Specific Requests:
Accordingly, Defendant hereby makes it clear that the following are specific requests for disclosure in this case:

1.	abEvidence that the child recanted any allegation made against Defendant;

2.	abClaims or allegations of molestation, sexual assault, or improper sexual contact made by the child herein against any person other than Defendant;

3.	abStatements made by the child which are inconsistent with the outcry statement herein;

4.	abThe identification of persons other than the defendant who may have had access to the child during the relevant period of time who are suspected by any person to be a child molester or having molested children;

5.	abStatements (written or recorded) made by any person, including those involved in the treatment or counseling of the child herein, which indicate any of the following:
	a.	The child is not reliable;
	b.	The child is or has been incompetent;
	c.	The child in manipulative;
	d.	The child is mentally ill;
	e.	The child is a liar;
	f.	The child has a poor reputation for truthfulness or obeying the law;

6.	abAny offers, promises or suggestions in any form of a positive reward for cooperating, testifying or making a statement to any person concerning the incidents made the basis of the indictment herein;

7.	abAny offers, promises or suggestions in any form of a negative punishment or impact for failing to cooperate, testify or make a statement to any person concerning the incidents made the basis of the indictment herein;

8.	abAny evidence of any incompetence, mental illness, or insanity of the child;

9.	abAny evidence that the child has been or attempted to be hypnotized at any time regarding any subject matter;

	WHEREFORE, PREMISES CONSIDERED, Defendant prays that relief be granted as prayed for herein.

Respectfully Submitted,

______________________________
Attorney for Defendant

	

CERTIFICATE OF SERVICE

	The undersigned hereby certifies that a true and correct copy of the foregoing pleading was delivered by mail to the offices of the __________ County Attorney on the _____ day of _____________, 2004.

________________________________
Attorney for Defendant