Ok, this is one of those questions on exactly who is covered by that "any person under contract with the state" phrase.

A proposition came up in court today that the State is under an obligation to turn over to the defense photographs (colposcopy) in possession of a forensic nurse under in (at least) the following circumstances:

A) forensic nurse works for a local hospital (not a CAC) who is paid by law enforcement on a per case basis;
B) the local hospital does not allow access to those records without some process.

For the sake of argument, I don't mind getting them, but it goes to the limits of the work that the defense is putting off on the state--if they want them, do I have to get them, or should they?

Thoughts?

Let's start with this caveat: this could go on and on and on and on and on with some pretty nuanced arguments based on the construction act and case law and blah blah blah.

But let's just start with what we know for sure. You are required by statute to "produce and permit the inspection... of any... tangible things not otherwise privileged that constitute or contain evidence material to any matter involved in the action and that are in the possession, custody, or control of the state or any person under contract with the state."

The Morton Act did not define ANY words it used. And that is, to say the least, problematic.

But if we want to try and use Brady standards to figure out who "the state" is, the answer under that case law was always anyone on the prosecution team who is actively prosecuting the instant case.

So the police agency that investigated the offense in the first place? They are absolutely the State.

Is that agency paying a forensic nurse to help them investigate the case? Then any "tangible things not otherwise privileged that constitute or contain evidence material to any matter involved in the action" that is in the nurse's possession, custody, or control has to be produced and permitted to be inspected by you, the prosecutor, to the defense, if the defense has requested it.

Thank you. Good response. I definitely agree that the request has to trigger it. It just seems weird that they can request and I have to subpoena. Why not the Defense subpoena it? I know, I know. This statute needs some examination by the courts for help. Thanks Again!

My next thought on this is that if your police agency is paying a nurse to do forensic exams as part of the case, then that should be part of what they are turning over to you as part of your file. Otherwise, it's going to be really hard for you to know if the nurse is doing these exams or not. So the practical responsibility falls on your law enforcement to be getting those results and giving them to your office. The legal responsibility, in the end, is going to fall on you to make sure the defense gets the results whether your agency remembers to tell you or not.

If they're not routinely collecting those results and giving them to you EVERY TIME the nurse does the exam, then my suggestion is that when you subpoena your officer, you do it via a duces tecum that reminds your officer "You're being commanded by the court to give me EVERYTHING you have on the case." That subpoena at least gives you some cover in being able to show the court, and maybe eventually the Board of Disciplinary Conduct, that the officer was directed to get those records and give them to you.

quote:

Originally posted by Matthew Poston:
Thank you. Good response. I definitely agree that the request has to trigger it. It just seems weird that they can request and I have to subpoena. Why not the Defense subpoena it? I know, I know. This statute needs some examination by the courts for help. Thanks Again!

Again, you don't have to subpoena it from the hospital if it doesn't exist. But if it exists, then your police agency surely already has it in their own physical possession, right? I mean, why would they pay someone to do an exam and then never collect the results?

At that point, you don't have to get it from the hospital. You have to get it from your LEA. And if those results exist, there's a 100% chance you want them for your case anyway, right?

Nah. We normally get charts/reports no problem. they send them to LEA and LEA gets those to us without a hiccup.

This particular place just doesn't send photographs with the report, out of (my perception only) a concern for some sort of privacy. And yes, there is a 100% chance i want them.

Just interested because this particular issue of "agencies under contract with the state" can include folks somewhere between AT&T (and others non-LEA) and those sorts of folks we would classically think of as LEA.