Situation:
Shooting case...defense is asking for court to order that a firearm seized and now in State possession as evidence:
1.) Be hand-carried or otherwise delivered to a defense expert...
2.) who is 12 hours away by car/two airline flights away (would have to connect through either houston or dallas)...
3.) so this 'expert' can then shoot the gun...
4.) and recover whatever slugs and casings result...
5.) for use as defense exhibits in trial
6.) if the bullets and/or casings do not match those recovered from the victim and/or the scene

Essentially, they want the judge to order the State to deliver this gun to their expert, way on the other side of the state, so it doesn't leave state custody...so this guy can replicate the testing DPS has already done (firing into a water barrel, then recovering slug and casing)...

Issues:
1.) Can the judge order us to deliver evidence to a defense expert that far away? (great inconvenience and expense)
2.) More essentially, does the 'inspection' discussed in 39.14 encompass actually USING or UTILIZING state's evidence? and does it authorize using state's evidence (the gun) to generate new, not-presently-existing evidence for the defense (spent slugs and casings)

Would appreciate any thoughts
gwd

"To produce" has now been interpreted to require the state to duplicate a video. But, while the statute speaks of specifying "the time, place and manner of making the inspection," that language cannot reasonably be interpreted to require the State to move an item to wherever is most convenient for the defendant. The statute says nothing about who bears the expenses of discovery, but I would certainly argue that it does not envision the State bearing long distance transportation costs. After all, in Lane v. State,933 S.W.2d 504, 514-15 the CCA held that production is accomplished by making the item available for inspection at the District Attorney's office.

The inspection allowed by the statute has also been interpreted to encompass independent testing, so I suppose "using" the firearm to gain its identifying information is probably as acceptable as requiring a sample of a drug, that will be altered or destroyed by the defense, to be given up.

When enacted in 1965, art. 39.14 was a very limited exception to the pre-existing rule that there was no discovery in criminal cases. The courts have modified its meaning and purpose over time, but what the defense is proposing in your case is pretty clearly where no court has gone before (and should hesitate to go even in 2012).

Why couldn't the defense expert come to your jusisdiction, test fire the gun, get the bullets and casings, go back home and issue a report to the defense attorney? Also, there is the language in 39.14 that states: Nothing in this Act shall authorize the removal of such evidence from the possession of the State . . ."