Supreme Court of Missouri
en banc
December 19, 2017
Effective July 1, 2018
Effective July 1, 2018
In re:
Repeal of subdivision 25.01, entitled "Misdemeanors or Felonies – Rules – Applicable to What Cases and When Commenced;" subdivision 25.02, entitled "Misdemeanors or Felonies – Time for Discovery;" subdivision 25.03, entitled "Misdemeanors or Felonies – Disclosure by State to Defendant Without Court Order;" subdivision 25.04, entitled "Misdemeanors or Felonies – Disclosure by State to Defendant by Court Order Requiring a Showing of Good Cause;" subdivision 25.05, entitled "Misdemeanors or Felonies – Disclosure by Defendant to State Without Court Order;" subdivision 25.06, entitled "Misdemeanors or Felonies – Disclosure by Defendant to State by Court Order Requiring a Showing of Good Cause;" subdivision 25.07, entitled "Misdemeanors or Felonies – Manner of Making Disclosure;" subdivision 25.08, entitled "Misdemeanors or Felonies – Continuing Duty to Disclosure; " subdivision 25.09, entitled "Misdemeanors or Felonies – Use of Matters Disclosed;" subdivision 25.10, entitled "Misdemeanors or Felonies – Matters Not Subject to Disclosure;" subdivision 25.11, entitled "Misdemeanors or Felonies – Protective Orders;" subdivision 25.12, entitled "Misdemeanors or Felonies – Deposition by Defendant – How Taken;" subdivision 25.13, entitled "Misdemeanors or Felonies – Deposition Offered by Defendant – When Admissible;" subdivision 25.14, entitled "Misdemeanors or Felonies – Depositions by State to Preserve Testimony – When and How Taken;" subdivision 25.15, entitled "Misdemeanors or Felonies – Discovery Depositions by State – When and How Taken;" subdivision 25.16, entitled "Misdemeanors or Felonies – Deposition Offered by State – When Admissible;" and subdivision 25.18, entitled "Misdemeanors or Felonies – Sanctions," of Rule 25, entitled "Misdemeanors or Felonies – Disclosure and Depositions," and in lieu thereof adoption of a new subdivision 25.01, entitled "Misdemeanors or Felonies – Rules – Applicable to What Cases;" a new subdivision 25.02, entitled "Misdemeanors or Felonies – Time for Discovery;" a new subdivision 25.03, entitled "Misdemeanors or Felonies – Disclosure by State to Defendant Without Court Order;" a new subdivision 25.04, entitled "Misdemeanors or Felonies – Disclosure by State to Defendant by Court Order Requiring a Showing of Good Cause;" a new subdivision 25.05, entitled "Misdemeanors or Felonies – Disclosure by Defendant to State Without Court Order;" a new subdivision 25.06, entitled "Misdemeanors or Felonies – Disclosure by Defendant to State by Court Order Requiring a Showing of Good Cause;" a new subdivision 25.07, entitled "Misdemeanors or Felonies – Manner of Making Disclosure;" a new subdivision 25.08, entitled "Misdemeanors or Felonies – Continuing Duty to Disclosure;" a new subdivision 25.09, entitled "Misdemeanors or Felonies – Use of Matters Disclosed;" a new subdivision 25.10, entitled "Misdemeanors or Felonies – Matters Not Subject to Disclosure;" a new subdivision 25.11, entitled "Misdemeanors or Felonies – Protective Orders;" a new subdivision 25.12, entitled "Misdemeanors or Felonies – Discovery Deposition by Defendant – When and How Taken;" a new subdivision 25.13, entitled "Misdemeanors or Felonies – Deposition Offered by Defendant – When Admissible;" a new subdivision 25.14, entitled "Misdemeanors or Felonies – Depositions to Preserve Testimony – When and How Taken;" a new subdivision 25.15, entitled "Misdemeanors or Felonies – Discovery Depositions by State – When and How Taken;" a new subdivision 25.16, entitled "Misdemeanors or Felonies – Deposition Offered by State – When Admissible;" a new subdivision 25.18, entitled "Misdemeanors or Felonies –Sanctions;" and a new subdivision 25.19, entitled "Misdemeanors or Felonies – Investigations Not to be Impeded."
ORDER
1. It is ordered that effective July 1, 2018, subdivisions 25.01, 25.02, 25.03, 25.04, 25.05, 25.06, 25.07, 25.08, 25.09, 25.10, 25.11, 25.12, 25.13, 25.14, 25.15, 25.16, and 25.18 of Rule 25 be and the same are hereby repealed and a new subdivision 25.01, a new subdivision 25.02, a new subdivision 25.03, a new subdivision 25.04, a new subdivision 25.05, a new subdivision 25.06, a new subdivision 25.07, a new subdivision 25.08, a new subdivision 25.09, a new subdivision 25.10, a new subdivision 25.11, a new subdivision 25.12, a new subdivision 25.13, a new subdivision 25.14, a new subdivision 25.15, a new subdivision 25.16, a new subdivision 25.18, and a new subdivision 25.19 adopted in lieu thereof to read as follows:
25.01. MISDEMEANORS OR FELONIES – RULES – APPLICABLE TO WHAT CASES
Rules 25.01 through 25.19 shall apply to all criminal cases.
25.02. MISDEMEANORS OR FELONIES – TIME FOR DISCOVERY
(a) Disclosure on filing of felony complaint. Requests or motions for discovery of material and information as provided in Rule 25.03(a) may be made any time after defendant's initial appearance in court. The state shall, within fourteen days of service of defendant's request, provide to defendant's counsel material and information as provided in Rule 25.03(a). The court may enlarge or shorten the time for the state to respond to the request.
(b) Disclosure after indictment or filing of information. Except as provided in paragraph (a), upon the filing of an indictment or information discovery may commence. Requests or motions for discovery may be made after the filing of the indictment or information. Requests or motions for discovery shall be made not later than twenty days after arraignment. Requests or motions for discovery shall be answered within fourteen days after service of the request. The court may enlarge or shorten the times specified in this rule.
25.03. MISDEMEANORS OR FELONIES – DISCLOSURE BY STATE TO DEFENDANT WITHOUT COURT ORDER
(a) Disclosure upon filing of felony complaint. Except as otherwise provided in these Rules, the state shall, upon written request of defendant's counsel, disclose to defendant's counsel the following material and information in the possession of the prosecutor: any arrest reports, incident reports, investigative reports, written or recorded statements, documents, photographs, video, electronic communications and electronic data that relate to the offense for which defendant is charged.
(b) Disclosure after indictment or filing of information. Except as otherwise provided in these Rules, the state shall, upon written request of defendant's counsel, disclose to defendant's counsel the following material and information within its possession or control designated in the request:
(c) The request provided for by this Rule shall be made by filing the request in the court where the case is pending and serving a copy of the request upon counsel for the state.
(d) The state may redact from any document it provides to defendant's counsel the following information: taxpayer identification number, the first five digits of a social security number, driver's license number, financial account number, personal identification code (PIN), electronic password of a victim or witness, or the actual address or mailing address of a participant in an address confidentiality program administered by the Missouri Secretary of State, but must do so in a manner that makes it clear that the information has been redacted.
(e) The state may elect to provide a separate copy of a redacted document to defendant's counsel to be delivered to defendant and designated as "Defendant's Copy." If the state provides a redacted document designated as "Defendant's Copy," in addition to the information permitted to be redacted pursuant to Rule 25.03(d), the state may also redact from "Defendant's Copy" of the document the following information: date of birth, home address, work address, and personal phone number and work phone number of a victim or witness. However, the redaction must be done in a manner that makes it clear the information has been redacted from the document. Defendant's counsel shall be provided a separate document that includes the information that has been redacted from the document pursuant to Rule 25.03(e). If defendant's counsel is provided with a redacted document by the state designated as "Defendant's Copy," only that copy shall be provided to defendant. Defendant's counsel shall not provide to defendant the unredacted document or any information redacted from the document pursuant to this Rule without court approval.
(f) Defendant is not entitled to the information redacted from a document as provided in Rule 25.03(d) or (e) unless the court determines after a showing of good cause that the disclosure of the information is necessary for the defense of the case.
(g) The state shall, without written request, disclose to defendant any material or information that tends to negate the guilt of defendant for the charged offense, mitigate the degree of the offense charged, reduce the punishment of the offense charged, and any additional material or information that would be required to be disclosed to comply with Brady v. Maryland, 373 U.S. 83 (1963), Giglio v. United States, 405 U.S. 150 (1972) and their progeny.
(h) If material or information would be discoverable under subsections (b) and (g) of this Rule if in the possession or control of the state, but is in the possession or control of other governmental personnel, the state shall use diligence and make good faith efforts to make the material or information available to defendant. If the state’s efforts are unsuccessful and the material or information or other governmental personnel are subject to the jurisdiction of the court, the court, upon request, shall issue subpoenas or orders to cause the material or information to be made available to the state for disclosure to the defense.
25.04. MISDEMEANORS OR FELONIES – DISCLOSURE BY STATE TO DEFENDANT BY COURT ORDER REQUIRING A SHOWING OF GOOD CAUSE
(a) The defense may make a written motion in the court having jurisdiction to try said case requesting the state to disclose material and information not covered by Rule 25.03. Such motion shall specify the material or information sought to be disclosed. If the court finds the request to be reasonable, the court shall order the state to disclose to defendant that material and information requested which is found by the court to be relevant and material to defendant's case.
(b) The court shall specify the material and information to be disclosed and the time and manner in which the state shall make disclosure under this Rule.
(c) If any material and information which the court orders the state to disclose under this Rule is in the possession or control of other governmental personnel, the state shall use diligence and make good faith efforts to cause such material to be made available to the defense; and if the state's efforts are unsuccessful and such material or other governmental personnel are subject to the jurisdiction of the court issuing such order, said court, upon request, shall issue suitable subpoenas or orders to cause such material to be made available to the state for disclosure to the defense.
25.05. MISDEMEANORS OR FELONIES – DISCLOSURE BY DEFENDANT TO STATE WITHOUT COURT ORDER
(a) Except as otherwise provided in these Rules as to protective orders, and subject to constitutional limitations, on written request by the state, defendant shall disclose to counsel for the state part or all of the following material or information within defendant's possession or control designated in such request:
(b) The request provided for by this Rule shall be made by filing the request in the court where the case is pending and serving a copy of the request upon defendant or defendant's attorney.
25.06. MISDEMEANORS OR FELONIES – DISCLOSURE BY DEFENDANT TO STATE BY COURT ORDER REQUIRING A SHOWING OF GOOD CAUSE
(a) Subject to constitutional limitations, the state may make a written motion in the court having jurisdiction to try the case requesting defendant to disclose material and information not covered in Rule 25.05. Such motion shall specify the material or information sought to be disclosed. If the court finds the request to be reasonable, the court shall order defendant to disclose to the state that material and information requested which is found by the court to be relevant and material to the state's case.
(b) Upon motion by the state, and subject to constitutional limitations and any other safeguards deemed appropriate by the court, and upon a showing of good cause, the court may order defendant to:
(c) If requested by any party, the court shall hear evidence on the necessity of discovery requested under Rule 25.06(b).
(d) In its order directing discovery under this Rule, the court shall make the grounds for its decision a part of the record.
(e) The court shall specify the material and information to be disclosed and the time and manner in which defendant shall make disclosure under this Rule.
(f) Defendant shall have the right to have counsel present during any disclosure under Rule 25.06(b).
(g) Rule 25.06(b) shall not apply to investigative procedures before an indictment or information is filed.
25.07. MISDEMEANORS OR FELONIES – MANNER OF MAKING DISCLOSURE
Unless otherwise ordered by the court, disclosure under Rules 25.03 through 25.06 shall be:
(a) In a manner agreed to by the state and defendant, or
(b) By the party making disclosure notifying opposing counsel that the material and information may be inspected, obtained, tested, copied, or photographed at a specified time and place, or
(c) By the party making disclosure providing opposing counsel a copy of the material and information and filing contemporaneously with the court a document listing what was disclosed to the other party.
25.08. MISDEMEANORS OR FELONIES – CONTINUING DUTY TO DISCLOSURE
If after complying with a request for disclosure or order of court, a party discovers information or material that the party would have been required to disclose under the request or order, the party shall furnish this additional information or material to opposing counsel as soon as practicable. If the additions are discovered during trial, the court also shall be notified.
25.09. MISDEMEANORS OR FELONIES – USE OF MATTERS DISCLOSED
Any information or materials obtained pursuant to these Rules shall be used only for the purpose of preparation and trial of the case and shall be subject to the terms, conditions or restrictions that the court, statutes and rules require. A willful violation of these rules may subject that party to sanctions and penalties by the court.
25.10. MISDEMEANORS OR FELONIES – MATTERS NOT SUBJECT TO DISCLOSURE
The following matters shall not be subject to disclosure:
(a) Legal research, or records, correspondence, reports, or memoranda to the extent that they contain the opinions, theories, or conclusions of counsel for the state or members of the state's legal or investigative staff, or of defendant, defense counsel, or members of defendant's legal or investigative staff.
(b) An informant's identity where informant's identity is a prosecution secret, a failure to disclose will not infringe the constitutional rights of defendant, and disclosure is not essential to a fair determination of the cause. Disclosure shall not be denied hereunder as to the identity of an informant to be produced at a hearing or trial.
(c) Any material or information which involves a substantial risk of prejudice to national security, where a failure to disclose will not infringe the constitutional rights of the accused, and where disclosure is not essential to a fair determination of the cause. Disclosure shall not be denied hereunder as to material or information which is to be disclosed at a hearing or trial.
25.11. MISDEMEANORS OR FELONIES – PROTECTIVE ORDERS
The court may at any time, on motion and for good cause shown:
(a) Order specified disclosures be denied or restricted, or make an order it determines appropriate, provided that all material which a party is entitled to receive is disclosed in time for counsel to make use of it; and
(b) Order non-discoverable material or information contained within discoverable material be removed or redacted and the remaining material or information be disclosed. The removed or redacted material or information shall be preserved by the party or in the records of the court and be made available to a reviewing court in the event of an appeal.
At any proceeding for showing good cause for the denial or restriction of disclosure, that is made in camera and a record is made, the record of the in camera proceeding shall be sealed and preserved in the records of the court, to be made available to a reviewing court in the event of an appeal.
In determining a motion for protective order, the court may consider the following: the risk of endangering the life or physical safety of an individual; the risk of intimidation of potential witnesses; the risk of flight from prosecution; the risk of destruction or tampering with evidence; the risk of economic reprisals; the risk that disclosure may seriously jeopardize a criminal investigation; or any other relevant consideration.
25.12. MISDEMEANORS OR FELONIES – DISCOVERY DEPOSITION BY DEFENDANT – WHEN AND HOW TAKEN
(a) In General. A defendant in any criminal case after an indictment or the filing of an information may obtain the deposition of any person on oral examination or written questions. The manner of taking the deposition shall be governed by the rules relating to the taking of depositions in civil actions.
(b) Location of Deposition. Depositions of witnesses shall be taken in the county where the witnesses live, or in another location agreed upon by the parties, or at a location designated by the court. The deposition of any person confined in prison shall be taken where the person is confined, unless otherwise ordered by the court.
(c) Presence of Defendant. Defendant shall not be physically present at a discovery deposition except by agreement of the parties or upon court order for good cause shown. In addition, upon motion of the defense, the court may order the physical presence of defendant upon a showing of good cause.
The court should consider:
(d) Experts. The defense may discover by deposition the facts and opinions to which an expert is expected to testify. Unless manifest injustice would result, the court shall require that the party seeking discovery pay the expert a reasonable hourly fee for the time the expert is deposed.
25.13. MISDEMEANORS OR FELONIES – DEPOSITION OFFERED BY DEFENDANT – WHEN ADMISSIBLE
At the trial or upon any hearing, any deposition obtained in accordance with Rules 25.12, 25.14 and 25.15, so far as it is otherwise admissible under the rules of evidence, may be used by defendant if it appears that:
(a) The witness:
The facts that would authorize the use of any deposition may be established by the testimony of the deposing witness or by the certificate of the officer before whom the deposition is taken.
25.14. MISDEMEANORS OR FELONIES – DEPOSITIONS TO PRESERVE TESTIMONY – WHEN AND HOW TAKEN
A prosecuting attorney or defense attorney may file a motion in a pending case to take the deposition of a witness to preserve testimony. The motion shall not seek the deposition of defendant or the spouse of defendant.
The court shall order the deposition if it finds, after a hearing, that the deposition is necessary to preserve testimony.
The order shall require defendant to attend the deposition or to personally waive the right to be present and the right of confrontation in writing or in open court. The order shall contain provisions necessary to fully protect defendant's rights of personal confrontation and cross-examination of the witness.
The court shall direct that the deposition be taken in the county where the offense occurred or at another location designated by the court.
A deposition taken pursuant to this Rule 25.14 may be used by either party at trial, subject to Rules 25.13 and 25.16.
The officer before whom the deposition is to be taken shall have authority to issue a subpoena requiring the attendance of the witness at the deposition in the same manner as is provided with respect to the attendance of witnesses at the trial of a criminal case.
The reasonable personal and traveling expenses of defendant and counsel shall be taxed as costs.
25.15. MISDEMEANORS OR FELONIES – DISCOVERY DEPOSITIONS BY STATE – WHEN AND HOW TAKEN
(a) In General. A prosecuting attorney in any criminal case may obtain the deposition of any person on oral examination after an indictment or the filing of an information. The manner of taking the deposition shall be governed by the rules relating to the taking of depositions in civil actions.
(b) Location of Deposition. Depositions of witnesses shall be taken in the county where the witnesses live, or in a location that is agreed upon by the parties, or at a location designated by the court. The deposition of any person confined in prison shall be taken where the person is confined, unless otherwise ordered by the court.
(c) Presence of Defendant. Defendant shall not be physically present at a discovery deposition except by agreement of the parties or upon court order for good cause shown.
(d) Experts. The prosecution may discover by deposition the facts and opinions to which an expert is expected to testify. Unless manifest injustice would result, the court shall require that the party seeking discovery from an expert pay the expert a reasonable hourly fee for the time the expert is deposed.
25.16. MISDEMEANORS OR FELONIES – DEPOSITION OFFERED BY STATE – WHEN ADMISSIBLE
At the trial or upon any hearing, any deposition obtained in accordance with Rules 25.12, 25.14 or 25.15, so far as it is otherwise admissible under the rules of evidence, may be used by the state if:
(a) Defendant:
(b) The witness is unavailable in that the witness:
Rules 25.01 through 25.19 shall apply to all criminal cases.
25.02. MISDEMEANORS OR FELONIES – TIME FOR DISCOVERY
(a) Disclosure on filing of felony complaint. Requests or motions for discovery of material and information as provided in Rule 25.03(a) may be made any time after defendant's initial appearance in court. The state shall, within fourteen days of service of defendant's request, provide to defendant's counsel material and information as provided in Rule 25.03(a). The court may enlarge or shorten the time for the state to respond to the request.
(b) Disclosure after indictment or filing of information. Except as provided in paragraph (a), upon the filing of an indictment or information discovery may commence. Requests or motions for discovery may be made after the filing of the indictment or information. Requests or motions for discovery shall be made not later than twenty days after arraignment. Requests or motions for discovery shall be answered within fourteen days after service of the request. The court may enlarge or shorten the times specified in this rule.
25.03. MISDEMEANORS OR FELONIES – DISCLOSURE BY STATE TO DEFENDANT WITHOUT COURT ORDER
(a) Disclosure upon filing of felony complaint. Except as otherwise provided in these Rules, the state shall, upon written request of defendant's counsel, disclose to defendant's counsel the following material and information in the possession of the prosecutor: any arrest reports, incident reports, investigative reports, written or recorded statements, documents, photographs, video, electronic communications and electronic data that relate to the offense for which defendant is charged.
(b) Disclosure after indictment or filing of information. Except as otherwise provided in these Rules, the state shall, upon written request of defendant's counsel, disclose to defendant's counsel the following material and information within its possession or control designated in the request:
(1) Any arrest reports, incident reports, investigative reports, written or recorded statements, documents, photographs, video, electronic communications and electronic data that relate to the offense for which defendant is charged;
(2) The names and last known addresses of persons whom the state intends to call as witnesses at any hearing or at the trial, together with their written or recorded statements, and existing memoranda, reporting or summarizing part or all of their oral statements;
(3) Any written or recorded statements and the substance of any oral statements made by defendant, a co-defendant or a co-actor, a list of all witnesses to the making of the statements and a list of all witnesses to the acknowledgment of the statements including the last known addresses of the witnesses;
(4) Those portions of any existing transcript of grand jury proceedings that relate to the offense with which defendant is charged, containing testimony of defendant and testimony of persons whom the state intends to call as witnesses at a hearing or trial;
(5) Any existing transcript of the preliminary hearing and of any prior trial held in defendant's case if the state has the transcript in its possession or if it is available to the state;
(6) Any reports or statements of experts made in connection with the particular case, including results of physical or mental examinations and of scientific tests, experiments, or comparisons;
(7) Any books, papers, documents, photographs, video, electronic communications, electronic data, or objects that the state intends to introduce into evidence at the hearing or trial or that were obtained from or belong to defendant;
(8) Any record of prior criminal convictions of persons the state intends to call as witnesses at a hearing or the trial; and
(9) Any photographic or electronic surveillance (including wiretapping) of defendant or of conversations to which defendant was a party or of defendant's premises, relating to the offense charged. This disclosure shall be in the form of a written statement by counsel for the state briefly setting out the facts pertaining to the time, place, and persons making the photographic or electronic surveillance.
(2) The names and last known addresses of persons whom the state intends to call as witnesses at any hearing or at the trial, together with their written or recorded statements, and existing memoranda, reporting or summarizing part or all of their oral statements;
(3) Any written or recorded statements and the substance of any oral statements made by defendant, a co-defendant or a co-actor, a list of all witnesses to the making of the statements and a list of all witnesses to the acknowledgment of the statements including the last known addresses of the witnesses;
(4) Those portions of any existing transcript of grand jury proceedings that relate to the offense with which defendant is charged, containing testimony of defendant and testimony of persons whom the state intends to call as witnesses at a hearing or trial;
(5) Any existing transcript of the preliminary hearing and of any prior trial held in defendant's case if the state has the transcript in its possession or if it is available to the state;
(6) Any reports or statements of experts made in connection with the particular case, including results of physical or mental examinations and of scientific tests, experiments, or comparisons;
(7) Any books, papers, documents, photographs, video, electronic communications, electronic data, or objects that the state intends to introduce into evidence at the hearing or trial or that were obtained from or belong to defendant;
(8) Any record of prior criminal convictions of persons the state intends to call as witnesses at a hearing or the trial; and
(9) Any photographic or electronic surveillance (including wiretapping) of defendant or of conversations to which defendant was a party or of defendant's premises, relating to the offense charged. This disclosure shall be in the form of a written statement by counsel for the state briefly setting out the facts pertaining to the time, place, and persons making the photographic or electronic surveillance.
(c) The request provided for by this Rule shall be made by filing the request in the court where the case is pending and serving a copy of the request upon counsel for the state.
(d) The state may redact from any document it provides to defendant's counsel the following information: taxpayer identification number, the first five digits of a social security number, driver's license number, financial account number, personal identification code (PIN), electronic password of a victim or witness, or the actual address or mailing address of a participant in an address confidentiality program administered by the Missouri Secretary of State, but must do so in a manner that makes it clear that the information has been redacted.
(e) The state may elect to provide a separate copy of a redacted document to defendant's counsel to be delivered to defendant and designated as "Defendant's Copy." If the state provides a redacted document designated as "Defendant's Copy," in addition to the information permitted to be redacted pursuant to Rule 25.03(d), the state may also redact from "Defendant's Copy" of the document the following information: date of birth, home address, work address, and personal phone number and work phone number of a victim or witness. However, the redaction must be done in a manner that makes it clear the information has been redacted from the document. Defendant's counsel shall be provided a separate document that includes the information that has been redacted from the document pursuant to Rule 25.03(e). If defendant's counsel is provided with a redacted document by the state designated as "Defendant's Copy," only that copy shall be provided to defendant. Defendant's counsel shall not provide to defendant the unredacted document or any information redacted from the document pursuant to this Rule without court approval.
(f) Defendant is not entitled to the information redacted from a document as provided in Rule 25.03(d) or (e) unless the court determines after a showing of good cause that the disclosure of the information is necessary for the defense of the case.
(g) The state shall, without written request, disclose to defendant any material or information that tends to negate the guilt of defendant for the charged offense, mitigate the degree of the offense charged, reduce the punishment of the offense charged, and any additional material or information that would be required to be disclosed to comply with Brady v. Maryland, 373 U.S. 83 (1963), Giglio v. United States, 405 U.S. 150 (1972) and their progeny.
(h) If material or information would be discoverable under subsections (b) and (g) of this Rule if in the possession or control of the state, but is in the possession or control of other governmental personnel, the state shall use diligence and make good faith efforts to make the material or information available to defendant. If the state’s efforts are unsuccessful and the material or information or other governmental personnel are subject to the jurisdiction of the court, the court, upon request, shall issue subpoenas or orders to cause the material or information to be made available to the state for disclosure to the defense.
25.04. MISDEMEANORS OR FELONIES – DISCLOSURE BY STATE TO DEFENDANT BY COURT ORDER REQUIRING A SHOWING OF GOOD CAUSE
(a) The defense may make a written motion in the court having jurisdiction to try said case requesting the state to disclose material and information not covered by Rule 25.03. Such motion shall specify the material or information sought to be disclosed. If the court finds the request to be reasonable, the court shall order the state to disclose to defendant that material and information requested which is found by the court to be relevant and material to defendant's case.
(b) The court shall specify the material and information to be disclosed and the time and manner in which the state shall make disclosure under this Rule.
(c) If any material and information which the court orders the state to disclose under this Rule is in the possession or control of other governmental personnel, the state shall use diligence and make good faith efforts to cause such material to be made available to the defense; and if the state's efforts are unsuccessful and such material or other governmental personnel are subject to the jurisdiction of the court issuing such order, said court, upon request, shall issue suitable subpoenas or orders to cause such material to be made available to the state for disclosure to the defense.
25.05. MISDEMEANORS OR FELONIES – DISCLOSURE BY DEFENDANT TO STATE WITHOUT COURT ORDER
(a) Except as otherwise provided in these Rules as to protective orders, and subject to constitutional limitations, on written request by the state, defendant shall disclose to counsel for the state part or all of the following material or information within defendant's possession or control designated in such request:
(1) Any reports or statements of experts made in connection with the particular case, including results of physical or mental examinations and of scientific tests, experiments, or comparisons, which the defense intends to introduce into evidence at a hearing or trial, except that those portions of any of the above containing statements made by defendant shall not be disclosed;
(2) The names and last known addresses of persons, other than defendant, whom defendant intends to call as witnesses at any hearing or trial, together with their written or recorded statements, and existing memoranda reporting or summarizing part or all of their oral statements;
(3) Those parts of any books, papers, documents, photographs, video, electronic communications, electronic data, or objects, except those that contain statements of defendant, which defendant intends to introduce in evidence at a hearing or trial;
(4) If defendant intends to rely on the defense of mental disease or defect excluding responsibility, or to claim that defendant has a mental disease or defect negating a culpable mental state, disclosure of these defenses shall be in the form of a written statement by counsel for defendant; and
(5) If defendant intends to rely on the defense of alibi and the state in its request specifies the place, date, and time of the crime charged, disclosure shall be in the form of a written statement by counsel for defendant, announcing defendant's intent and giving specific information as to the place at which defendant claims to have been at the time of the alleged offense, and as particularly as is known, the names and addresses of the witnesses by whom defendant proposes to establish the alibi.
(2) The names and last known addresses of persons, other than defendant, whom defendant intends to call as witnesses at any hearing or trial, together with their written or recorded statements, and existing memoranda reporting or summarizing part or all of their oral statements;
(3) Those parts of any books, papers, documents, photographs, video, electronic communications, electronic data, or objects, except those that contain statements of defendant, which defendant intends to introduce in evidence at a hearing or trial;
(4) If defendant intends to rely on the defense of mental disease or defect excluding responsibility, or to claim that defendant has a mental disease or defect negating a culpable mental state, disclosure of these defenses shall be in the form of a written statement by counsel for defendant; and
(5) If defendant intends to rely on the defense of alibi and the state in its request specifies the place, date, and time of the crime charged, disclosure shall be in the form of a written statement by counsel for defendant, announcing defendant's intent and giving specific information as to the place at which defendant claims to have been at the time of the alleged offense, and as particularly as is known, the names and addresses of the witnesses by whom defendant proposes to establish the alibi.
(b) The request provided for by this Rule shall be made by filing the request in the court where the case is pending and serving a copy of the request upon defendant or defendant's attorney.
25.06. MISDEMEANORS OR FELONIES – DISCLOSURE BY DEFENDANT TO STATE BY COURT ORDER REQUIRING A SHOWING OF GOOD CAUSE
(a) Subject to constitutional limitations, the state may make a written motion in the court having jurisdiction to try the case requesting defendant to disclose material and information not covered in Rule 25.05. Such motion shall specify the material or information sought to be disclosed. If the court finds the request to be reasonable, the court shall order defendant to disclose to the state that material and information requested which is found by the court to be relevant and material to the state's case.
(b) Upon motion by the state, and subject to constitutional limitations and any other safeguards deemed appropriate by the court, and upon a showing of good cause, the court may order defendant to:
(1) Appear in a lineup;
(2) Speak for identification;
(3) Be fingerprinted;
(4) Pose for photographs not involving reenactment of a scene;
(5) Try on articles of clothing;
(6) Provide a sample of defendant's handwriting;
(7) Submit to the taking of specimens of material from under defendant's fingernails;
(8) Submit to the taking of samples of defendant's blood, hair, and other materials of defendant's body, which involve no unreasonable intrusion thereof; or
(9) Submit to a reasonable physical or medical inspection of defendant's body.
(2) Speak for identification;
(3) Be fingerprinted;
(4) Pose for photographs not involving reenactment of a scene;
(5) Try on articles of clothing;
(6) Provide a sample of defendant's handwriting;
(7) Submit to the taking of specimens of material from under defendant's fingernails;
(8) Submit to the taking of samples of defendant's blood, hair, and other materials of defendant's body, which involve no unreasonable intrusion thereof; or
(9) Submit to a reasonable physical or medical inspection of defendant's body.
(c) If requested by any party, the court shall hear evidence on the necessity of discovery requested under Rule 25.06(b).
(d) In its order directing discovery under this Rule, the court shall make the grounds for its decision a part of the record.
(e) The court shall specify the material and information to be disclosed and the time and manner in which defendant shall make disclosure under this Rule.
(f) Defendant shall have the right to have counsel present during any disclosure under Rule 25.06(b).
(g) Rule 25.06(b) shall not apply to investigative procedures before an indictment or information is filed.
25.07. MISDEMEANORS OR FELONIES – MANNER OF MAKING DISCLOSURE
Unless otherwise ordered by the court, disclosure under Rules 25.03 through 25.06 shall be:
(a) In a manner agreed to by the state and defendant, or
(b) By the party making disclosure notifying opposing counsel that the material and information may be inspected, obtained, tested, copied, or photographed at a specified time and place, or
(c) By the party making disclosure providing opposing counsel a copy of the material and information and filing contemporaneously with the court a document listing what was disclosed to the other party.
25.08. MISDEMEANORS OR FELONIES – CONTINUING DUTY TO DISCLOSURE
If after complying with a request for disclosure or order of court, a party discovers information or material that the party would have been required to disclose under the request or order, the party shall furnish this additional information or material to opposing counsel as soon as practicable. If the additions are discovered during trial, the court also shall be notified.
25.09. MISDEMEANORS OR FELONIES – USE OF MATTERS DISCLOSED
Any information or materials obtained pursuant to these Rules shall be used only for the purpose of preparation and trial of the case and shall be subject to the terms, conditions or restrictions that the court, statutes and rules require. A willful violation of these rules may subject that party to sanctions and penalties by the court.
25.10. MISDEMEANORS OR FELONIES – MATTERS NOT SUBJECT TO DISCLOSURE
The following matters shall not be subject to disclosure:
(a) Legal research, or records, correspondence, reports, or memoranda to the extent that they contain the opinions, theories, or conclusions of counsel for the state or members of the state's legal or investigative staff, or of defendant, defense counsel, or members of defendant's legal or investigative staff.
(b) An informant's identity where informant's identity is a prosecution secret, a failure to disclose will not infringe the constitutional rights of defendant, and disclosure is not essential to a fair determination of the cause. Disclosure shall not be denied hereunder as to the identity of an informant to be produced at a hearing or trial.
(c) Any material or information which involves a substantial risk of prejudice to national security, where a failure to disclose will not infringe the constitutional rights of the accused, and where disclosure is not essential to a fair determination of the cause. Disclosure shall not be denied hereunder as to material or information which is to be disclosed at a hearing or trial.
25.11. MISDEMEANORS OR FELONIES – PROTECTIVE ORDERS
The court may at any time, on motion and for good cause shown:
(a) Order specified disclosures be denied or restricted, or make an order it determines appropriate, provided that all material which a party is entitled to receive is disclosed in time for counsel to make use of it; and
(b) Order non-discoverable material or information contained within discoverable material be removed or redacted and the remaining material or information be disclosed. The removed or redacted material or information shall be preserved by the party or in the records of the court and be made available to a reviewing court in the event of an appeal.
At any proceeding for showing good cause for the denial or restriction of disclosure, that is made in camera and a record is made, the record of the in camera proceeding shall be sealed and preserved in the records of the court, to be made available to a reviewing court in the event of an appeal.
In determining a motion for protective order, the court may consider the following: the risk of endangering the life or physical safety of an individual; the risk of intimidation of potential witnesses; the risk of flight from prosecution; the risk of destruction or tampering with evidence; the risk of economic reprisals; the risk that disclosure may seriously jeopardize a criminal investigation; or any other relevant consideration.
25.12. MISDEMEANORS OR FELONIES – DISCOVERY DEPOSITION BY DEFENDANT – WHEN AND HOW TAKEN
(a) In General. A defendant in any criminal case after an indictment or the filing of an information may obtain the deposition of any person on oral examination or written questions. The manner of taking the deposition shall be governed by the rules relating to the taking of depositions in civil actions.
(b) Location of Deposition. Depositions of witnesses shall be taken in the county where the witnesses live, or in another location agreed upon by the parties, or at a location designated by the court. The deposition of any person confined in prison shall be taken where the person is confined, unless otherwise ordered by the court.
(c) Presence of Defendant. Defendant shall not be physically present at a discovery deposition except by agreement of the parties or upon court order for good cause shown. In addition, upon motion of the defense, the court may order the physical presence of defendant upon a showing of good cause.
The court should consider:
(1) The need for the physical presence of defendant to obtain effective discovery;
(2) The effect of defendant's presence on the witness; and
(3) Any available use of screening or alternative methods of taping or recording that would allow defendant limited observation of the witness and the ability to confer with counsel.
(2) The effect of defendant's presence on the witness; and
(3) Any available use of screening or alternative methods of taping or recording that would allow defendant limited observation of the witness and the ability to confer with counsel.
(d) Experts. The defense may discover by deposition the facts and opinions to which an expert is expected to testify. Unless manifest injustice would result, the court shall require that the party seeking discovery pay the expert a reasonable hourly fee for the time the expert is deposed.
25.13. MISDEMEANORS OR FELONIES – DEPOSITION OFFERED BY DEFENDANT – WHEN ADMISSIBLE
At the trial or upon any hearing, any deposition obtained in accordance with Rules 25.12, 25.14 and 25.15, so far as it is otherwise admissible under the rules of evidence, may be used by defendant if it appears that:
(a) The witness:
(1) Is dead;
(2) Is out of the state, unless it appears that the absence of the witness was procured by defendant;
(3) Is unable to attend or testify because of sickness or infirmity;
(4) Is a judge of a court of record or a practicing attorney or physician, and engaged in the discharge of an official or professional duty at the time of trial;
(5) Has invoked a testimonial privilege or other refusal to testify not produced by the action of defendant; or
(6) Is otherwise unavailable and defendant has made a good faith effort to obtain the presence of the witness at the hearing or trial, but has been unable to procure the attendance of the witness.
(2) Is out of the state, unless it appears that the absence of the witness was procured by defendant;
(3) Is unable to attend or testify because of sickness or infirmity;
(4) Is a judge of a court of record or a practicing attorney or physician, and engaged in the discharge of an official or professional duty at the time of trial;
(5) Has invoked a testimonial privilege or other refusal to testify not produced by the action of defendant; or
(6) Is otherwise unavailable and defendant has made a good faith effort to obtain the presence of the witness at the hearing or trial, but has been unable to procure the attendance of the witness.
The facts that would authorize the use of any deposition may be established by the testimony of the deposing witness or by the certificate of the officer before whom the deposition is taken.
25.14. MISDEMEANORS OR FELONIES – DEPOSITIONS TO PRESERVE TESTIMONY – WHEN AND HOW TAKEN
A prosecuting attorney or defense attorney may file a motion in a pending case to take the deposition of a witness to preserve testimony. The motion shall not seek the deposition of defendant or the spouse of defendant.
The court shall order the deposition if it finds, after a hearing, that the deposition is necessary to preserve testimony.
The order shall require defendant to attend the deposition or to personally waive the right to be present and the right of confrontation in writing or in open court. The order shall contain provisions necessary to fully protect defendant's rights of personal confrontation and cross-examination of the witness.
The court shall direct that the deposition be taken in the county where the offense occurred or at another location designated by the court.
A deposition taken pursuant to this Rule 25.14 may be used by either party at trial, subject to Rules 25.13 and 25.16.
The officer before whom the deposition is to be taken shall have authority to issue a subpoena requiring the attendance of the witness at the deposition in the same manner as is provided with respect to the attendance of witnesses at the trial of a criminal case.
The reasonable personal and traveling expenses of defendant and counsel shall be taxed as costs.
25.15. MISDEMEANORS OR FELONIES – DISCOVERY DEPOSITIONS BY STATE – WHEN AND HOW TAKEN
(a) In General. A prosecuting attorney in any criminal case may obtain the deposition of any person on oral examination after an indictment or the filing of an information. The manner of taking the deposition shall be governed by the rules relating to the taking of depositions in civil actions.
(b) Location of Deposition. Depositions of witnesses shall be taken in the county where the witnesses live, or in a location that is agreed upon by the parties, or at a location designated by the court. The deposition of any person confined in prison shall be taken where the person is confined, unless otherwise ordered by the court.
(c) Presence of Defendant. Defendant shall not be physically present at a discovery deposition except by agreement of the parties or upon court order for good cause shown.
(d) Experts. The prosecution may discover by deposition the facts and opinions to which an expert is expected to testify. Unless manifest injustice would result, the court shall require that the party seeking discovery from an expert pay the expert a reasonable hourly fee for the time the expert is deposed.
25.16. MISDEMEANORS OR FELONIES – DEPOSITION OFFERED BY STATE – WHEN ADMISSIBLE
At the trial or upon any hearing, any deposition obtained in accordance with Rules 25.12, 25.14 or 25.15, so far as it is otherwise admissible under the rules of evidence, may be used by the state if:
(a) Defendant:
(1) Was personally present at the deposition and had the right of confrontation and cross-examination at the deposition, or
(2) Personally waived that right to be present and the right of confrontation in writing or in open court, or
(3) Failed to attend the deposition after the court ordered defendant to do so; and
(2) Personally waived that right to be present and the right of confrontation in writing or in open court, or
(3) Failed to attend the deposition after the court ordered defendant to do so; and
(b) The witness is unavailable in that the witness:
(1) Is dead,
(2) Is unable to attend or testify because of sickness or infirmity,
(3) Has invoked a testimonial privilege or other refusal to testify not produced by the action of the state, or
(4) Is otherwise unavailable and the state has made a good faith effort to obtain the presence of the witness at the hearing or trial, but has been unable to procure the attendance of the witness.
(2) Is unable to attend or testify because of sickness or infirmity,
(3) Has invoked a testimonial privilege or other refusal to testify not produced by the action of the state, or
(4) Is otherwise unavailable and the state has made a good faith effort to obtain the presence of the witness at the hearing or trial, but has been unable to procure the attendance of the witness.
25.18. MISDEMEANORS OR FELONIES – SANCTIONS
(a) If at any time during the course of the proceeding it is brought to the attention of the court that a party has failed to comply with an applicable discovery rule or an order issued regarding discovery, the court may order the party to make disclosure of material and information not previously disclosed, grant a continuance, exclude such evidence, or enter an order it determines just under the circumstances.
(b) Willful violation by counsel or defendant of an applicable discovery rule or an order regarding discovery may subject counsel or defendant to appropriate sanctions by the court.
25.19. MISDEMEANORS OR FELONIES – INVESTIGATIONS NOT TO BE IMPEDED
Except as may be provided by a protective order entered by the court, counsel for the parties, including employees or agents of counsel for the parties, shall not advise any individual who has relevant material or information to not discuss the case with opposing counsel or their employees or agents, and shall not otherwise impede opposing counsel's investigation of the case. This rule does not apply to defense counsel advising defendant not to discuss the case with others.
(a) If at any time during the course of the proceeding it is brought to the attention of the court that a party has failed to comply with an applicable discovery rule or an order issued regarding discovery, the court may order the party to make disclosure of material and information not previously disclosed, grant a continuance, exclude such evidence, or enter an order it determines just under the circumstances.
(b) Willful violation by counsel or defendant of an applicable discovery rule or an order regarding discovery may subject counsel or defendant to appropriate sanctions by the court.
25.19. MISDEMEANORS OR FELONIES – INVESTIGATIONS NOT TO BE IMPEDED
Except as may be provided by a protective order entered by the court, counsel for the parties, including employees or agents of counsel for the parties, shall not advise any individual who has relevant material or information to not discuss the case with opposing counsel or their employees or agents, and shall not otherwise impede opposing counsel's investigation of the case. This rule does not apply to defense counsel advising defendant not to discuss the case with others.
2. It is ordered that notice of this order be published in the Journal of The Missouri Bar.
3. It is ordered that this order be published in the South Western Reporter.
Day – to – Day
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ZEL M. FISCHER
Chief Justice
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ZEL M. FISCHER
Chief Justice