CAUSE NO.___________

THE STATE OF TEXAS	§	IN THE _____ COURT
§
V.	§	OF
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____________________	§	____________________COUNTY, TEXAS

MOTION FOR DISCOVERY, PRODUCTION AND DAUBERT HEARING
(The accused’s motion asking the Court to require the State to provide to the Court, and Counsel for the Accused, documentation that is relevant to the Court’s determination of the admissibility of opinion testimony,  a pre-trial hearing to determine the admissibility of that testimony and other relief)

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      Now comes __________________, Attorney for the Defendant, ________________, and pursuant to the 5th, 6th, 8th and 14th Amendments to the United States Constitution and Article 1, sections 3, 10, 13, 15 & 19 of the Texas Constitution, and further pursuant to Tex. R. Crim.P. 39.14 (a) and (b) and Tex.R.Evid. 104, 702, 703 and 705.  In support thereof, the Defendant would show the following:

1.  The Defendant has been indicted by the _____________County grand jury for the offense of capital murder.

2.  The State is seeking the death penalty.

3.  The Defendant anticipates that during trial the State will call one or more witnesses who will offer opinions that are either scientific in nature or are based upon personal training or experience.  The admissibility of such opinions are governed by Tex.R Evid. 702, 703, 705 and,  Daubert v. Merrell Dow, 113 S.Ct. 2786 (1993), Kumho Tire Company v. Carmichael, 119 S.Ct. 1167 (1999),  Kelly v. State, 824 S.W.2d 568, 573 (Tex.Crim.App. 1992) and Jordan v. State 928 S.W.2d 550 (Tex.Crim.App.1996).

4.   The proponent of scientific evidence bears the burden of demonstrating by clear and convincing evidence that the evidence is reliable.  This is accomplished by showing : (1) the validity of the underlying scientific theory; (2) the validity of the technique applying the theory and (3) proper application of the technique on the occasion in question.  Prior to the offer of scientific evidence, the trial court must conduct a hearing outside the presence of the jury to determine whether the proponent has established all three criteria.  This pre-admission determination is required whether the science at issue is novel or well established.  Jackson v. State, 17 S.W.3d 664 (Tex.Crim.App. 2000).   

5.   The United States Supreme Court has said: 

		Faced with a proffer of expert scientific testimony, then, 
		the trial judge must determine at the outset, pursuant to Rule 
		104(a),  whether the expert is proposing to testify to (1) scientific
		knowledge that (2) will assist the trier of fact to understand or 
		determine a fact in issue.  This entails a preliminary assessment of
whether the reasoning or methodology underlying the testimony is 
		scientifically valid and of whether that reasoning or methodology 
		properly can be applied to the facts in issue.  Daubert., supra at page 482.

6.   This Court must find that the opinion evidence is not only reliable, but that it is  relevant under Tex. R. Evid.401, that it meets the standard set in Rule 702 and that it  “assists the trier of fact [in] understanding the evidence [in] determining a fact in issue.”  If the trial judge finds the proposed expert testimony meets both the Rule 401 and Rule 702 requirements, then the judge must perform a Rule 403 analysis to determine whether the evidence should, in fact, be presented to the jury. Morales v. State, 32 S.W. 3d 862  (Tex.Crim.App. 2000) at page 6.
This Court is  the “gatekeeper” that must screen expert testimony for scientific reliability. Evidentiary reliability is based  on scientific validity.  Jordan, supra at page 6.

7.  The Texas Court of Criminal Appeals, identified the following factors that the trial                 judge could consider in performing its “gatekeeper function”: 

          (a) the extent to which the underlying scientific theory and technique are accepted, as                      valid,  by the relevant scientific community, if such a community can be ascertained; 

          (b) the qualifications of the expert(s) testifying; 

          (c) the existence of literature supporting or rejecting the underlying scientific theory                       and technique; 
          (d) the potential rate of error of the technique; 

            (e) the availability of other experts to test and evaluate the technique; 

            (f) the clarity with which the underlying scientific theory and technique can be
            explained to the court; 

            (g) the experience and skill of the person(s) who applied the technique on the occasion                    in question. Kelly, supra at page 573

9.  Should the Court determine that the testimony to be offered is in a field of science that is based upon experience and training as opposed to a scientific method, the Court must find:

	       (a) whether the field of expertise is a legitimate one;
	       
       (b) whether the subject matter of the expert’s testimony is within the scope of that field, and;

	        (c) whether the expert’s testimony properly relies upon and or utilizes the principles                        involved in the field.  Nenno v. State, 970 S.W.2s 549 (Tex. Crim.App. 1990).

All of the material that is sought by this motion is relevant to admissibility of “soft science” testimony. 
	
8.    So as to aid the Court in its “gatekeeping” function, the State should be required to                provide the Court, at least ______ days prior to trial, the following:

            (a) all  literature supporting or rejecting the underlying theory, methodology or                                technique used or relied upon by each State witness that will provide opinion                                  testimony at trial.  This information will allow the Court to determine if the relevant                       theory, methodology or technique has been subjected to review by the witnesses’s                          peers and if the purported science is generally accepted in the field..

            (b) the results of any tests that have been performed on the science or methodology                         relied upon by each State witness that will provide opinion testimony at trial.  This                         information will allow the Court to determine if the basis for the opinion has been or can               be subjected to testing to determine its reliability.

            (c) the names of each person about whom a witness to be called by the state has                              expressed an opinion in the past and the opinion expressed as to each by the State’s                        witness.  This information will allow the Court to determine if a known or potential rate                 of error exists.

            (d) a listing of any standards that control the technique or methodology used to arrive                     at any opinion that may be expressed at trial.  This will allow the Court to determine if                   there is an accepted  protocol for gathering relevant information and interpreting that                     information in arriving at an opinion.

            (e)  the qualifications that allow the witnesses to form and express the opinions.  This                     will allow the Court to determine if the opinion of the witness is based on scientific                        knowledge and training or is merely an opinion based on personal belief, bias or                             prejudice.
	
9.    As provided for in Tex. C.Crim. Proc. Art. 39.14(a) counsel for the Accused                        should be given the opportunity to examine and copy any documents that are provided               to the Court pursuant to its Order.

WHEREFORE PREMISES CONSIDERED, Counsel for the Accused prays that upon hearing of this motion the Court:

(1) Order the State to provide to the Court those documents that have been identified in this motion as being important to the Court’s “gatekeeping” function;

(2) Order that counsel for the Accused be allowed to photocopy each of the documents, if any, produced by the State in support of the witness’s opinion testimony;

(3) Order that this matter be set for a pre-trial hearing at which the State be required to establish, under the cited authority, the admissibility of any opinions that are to be offered at trial; 

(4) Order that this hearing be set sufficiently in advance of trial so that the accused can arrange for necessary rebuttal testimony should any of the State’s opinion testimony be found to be scientifically reliable and helpful to the trier of fact.
(4)  Such other and further relief to which the Accused, or his counsel,  may show himself to be entitled.

	Respectfully submitted on this the _____ day of ________________, 2001,

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                                          Signature block for attorney 

Certificate of Service and notice of hearing on motion