Kentucky Association of Criminal Defense Lawyers - KACDL



|NO. -------------- |JEFFERSON CIRCUIT COURT |

|  |DIVISION FOUR(4) |

| |HONORABLE CHARLIE CUNNINHAM |

|COMMONWEALTH OF KENTUCKY |PLAINTIFF |

 VS.                                            NOTICE – MOTION – ORDER

| | |

|_________________ |DEFENDANT |

* * * * *

NOTICE

TO:      Honorable Frank Dahl, or his/her agent, Assistant Commonwealth Attorney

             Please take notice that the following motion will be made on the 2nd day of November,

2015, at 9:00 a.m., in the above Court.

MOTION TO PRESERVE EVIDENCE

Comes the accused, ____________ (“__________”), by counsel, Karen Faulkner, pursuant to the Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution; Sections One, Two, Three, Seven, Eleven, Seventeen, and Twenty-Six of the Kentucky Constitution; and in pursuit of his rights to a full and fair hearing under both the state and federal constitutions, hereby moves this Honorable Court to order the Commonwealth and any and all agents of the Commonwealth, including but not limited to agents of law enforcement agencies, state, local, or federal crime labs, detention facilities and/or any other investigative office involved in handling evidence related to this case, to preserve any and all evidence within the knowledge, possession, custody or control of the Commonwealth and/or its agents. In support of his motion, the defendant, by counsel, offers the following:

1. The defendant stands before this Honorable Court charged with serious felony offenses involving allegations that he trafficked in a simulated substance or substances, and that in so doing he engaged in a criminal syndicate.

2. Defense counsel has a duty to examine the evidence in a case (See RCr 7.24), and to possibly conduct independent testing. U. S. v. Bryant, 439 F.2d 642 (D.C. Cir. 1971). A defendant has a right to due process of law. Chambers v. Mississippi, 410 U.S. 284, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973). A defendant has a right to present a defense. Crane v. Kentucky, 476 U.S. 683, 106 S.Ct. 2142, 90 L.Ed2d 636 (1986). The defendant’s rights to discovery, to constitutional due process and to present a defense will be permanently compromised and rendered meaningless if evidence is destroyed in this case.

3. The defendant is entitled to any and all evidence that is either exculpatory, or which could mitigate his culpability or level of punishment. Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963); United States v. Enright, 579 F.2d 980 (6th Cir. 1978). Further, evidence which may not at the present appear to be exculpatory may later prove to be exculpatory or tend to mitigate culpability or punishment. If evidence is destroyed now, it will be lost forever, and the defendant’s rights will be irreparably impaired.

4. The Commonwealth is required to preserve evidence in order that the defendant may be able to exercise his right to independent testing of such evidence. KRS 31.185, Green v. Commonwealth, Ky. App., 684 S.W. 2d 13 (1985). The entry of the attached order will not impose any undue burden upon the Commonwealth. It does not require the Commonwealth to take special action, it merely requires them to protect and preserve the evidence already within the possession of its agents -- a duty already imposed by statute and by the state and federal constitutions. Indeed, the state can have no legitimate interest in the destruction of evidence.

WHEREFORE, the defendant respectfully prays that the Commonwealth will destroy no evidence without leave of Court, and for entry of the attached order.

CERTIFICATE

This is to certify that a copy of the foregoing motion was delivered to the Hon. Frank Dahl or his/her agent, on this the ____ day of ______________, 2015.

__________________________________

KAREN FAULKNER

Faulkner Kaelin Law Office

125 South Sixth Street, Ste. 300

Louisville, KY 40202

(502) 584-0969

karen@

|NO. ___________________ |JEFFERSON DISTRICT COURT |

|  |DIVISION 303 |

|COMMONWEALTH OF KENTUCKY |PLAINTIFF |

 VS.                                            ORDER PRESERVING EVIDENCE

|__________________________ | DEFENDANT |

Motion having been made and the Court being otherwise sufficiently advised;

IT IS HEREBY ORDERED that the Commonwealth and its agents, including (but not limited to) the Louisville Metro Police Department and any other law enforcement agency, the Louisville Metro Department of Corrections, and the Kentucky State Police Crime Laboratory, shall preserve all tape recordings, radio transmissions, run sheets, telephone communications, evidence letters, investigative notes (including hand-written notes), tangible objects, testing notes, reports, drafts of reports and physical evidence pertaining to the above-styled case.

IT IS FURTHER ORDERED that the Commonwealth and its agents, including (but not limited to) the Louisville Metro Police Department and any other law enforcement agency, the Louisville Metro Department of Corrections, and the Kentucky State Police Crime Laboratory, shall preserve a representative sample of any physical evidence which it submits for testing or analysis. Should a sample of evidence be of such limited quantity that testing may consume or destroy the entire sample, or preclude a sufficient sample for re-testing, the defendant, through counsel, shall be notified in writing prior to any tests so that she or a qualified defense expert may make arrangements to be present during the testing.

____________________________________

cc: LMPD JUDGE, JEFFERSON CIRCUIT COURT

LMDC

KSP Lab DATE: ______________________________

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