IN THE FIFTIETH JUDICIAL DISTRICT, PARISH OF PEINE DE MORT
STATE OF LOUISIANA
No. _____

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STATE OF LOUISIANA, Plaintiff
v.
JOHN CLIENT, Defendant

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MOTION FOR PERMISSION TO PROCEED
EX PARTE ON APPLICATIONS FOR OUT-OF-STATE WITNESSES

COMES NOW, JOHN CLIENT, by counsel, and moves this Court pursuant to the Fourth, Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution, and Article 1, Sections 2, 3, 5, 13, 14, 16 & 17 of the Louisiana Constitution to allow him to proceed ex parte on his applications for out-of-state witnesses, including those witnesses currently housed in state and federal institutions around the Nation.
In support of his motion, Mr. CLIENT states as follows:

1. Mr. CLIENT submits this motion and memorandum to demonstrate that such ex parte proceedings are essential to protect confidential attorney-client communications and attorney work-product material which must be disclosed to make a showing of need for out-of-state witnesses. Disclosure of this information would violate Mr. CLIENT's rights to present a defense, to the effective assistance of counsel, to compulsory process to secure witnesses, to confront the evidence against him, to due process, to equal protection of the laws, to freedom from cruel and unusual punishment, and against compulsory self-incrimination.
2. Historically, the prosecution in this Parish has brought witnesses in from outside the state without bothering to inform the defense of the matter. Where the prosecution may partake of ex parte proceedings without making disclosures to the defense, or where the prosecution has the power to make decisions that an indigent defendant would not be able to make, the defense must be able to take advantage of the same rules: "the Due Process Clause . . . forbids enforcement of . . . rules unless reciprocal rights are given to criminal defendants." Wardius v. Oregon, 412 U.S. 470, 472, 93 S. Ct. 2208, 37 L. Ed. 2d 82 (1973).
3. Even were there not a requirement that both sides be treated equally, there would be an independent reason in Louisiana law as to why Mr. CLIENT should be allowed to proceed ex parte on his applications for out-of-state witness subpoenas. Indigent defendants are entitled to have the government subpoena witnesses in addition to the six to which all defendants are entitled. La. Code Crim. Pro. art 739. Under the law, the defendant must allege on his application that the testimony is relevant, material, and not cumulative, and that the defendant cannot safely go to trial without it. Id. The statute requires the judge to make a private inquiry into the facts. Id.
4. The showing that the defendant must make is considerably less than under other similar statutes, as explained in the Official Revision Comment accompanying this section, which states that:
the third allegation required in the affidavit, that the defendant cannot safely go to trial without the testimony, is drafted in conformity with Fed.Rule 17(b), except that the requirement that the defendant state what he intends to prove has been omitted, because the defendant should not be forced to disclose his defense to the state prior to trial. The judge may, however, require the defendant to state privately what he expects to prove.
La. Code Crim. Pro. art 739 (Official Revision Comment) (emphasis supplied). This statute clearly attempts to protect the defendant from having to disclose his strategy.
5. Various disclosures as to the defense theory of relevance may have to be made in order to secure (a) funds, and (b) a certificate of materiality for an out-of-state witness. The same may be true of various witnesses being housed in state and federal penitentiaries around the nation. These disclosures certainly ought not to be made in front of the state.
For the reasons stated herein, Mr. CLIENT is entitled to proceed ex parte, with a sealed record, in his applications for the out-of-state witnesses necessary for his defense.
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