Here is an example of a petitioner’s discovery request in habeas corpus.

It is appropriate and often necessary to serve a discovery request or motion on the respondent. In addition, discovery is authorized in Practice Book § 23-38. So, the petitioner can obtain, “[a] list of witnesses” under subsection (a)(1), “[a] statement of the subject matter upon which any expert is expected to testify” under subsection (a)(2), and, “[a] statement of the opinions the expert is expected to render and the ground for each opinion” under subsection (a)(3). Subsection (b) permits, “[t]he parties [to] cooperatively engage in informal discovery” and subsection (c), upon motion, authorizes the Court to, “order such other limited discovery as the judicial authority determines will enhance the fair and summary disposal of the case.”

Such request or motion should also cite Practice Book § 40-9 (permitting defense experts to participate in testing), § 40-12 (permitting reasonable defense testing), and § 40- 39 (compelling the prosecution to do comparison testing upon motion of the defense).

Petitioner’s Discovery Request

Further, such request or motion should cite Bracy v. Gramley, 520 U.S. 899, 908-09 (1997)(“[w]here specific allegations before the court show reason to believe that the petitioner may, if the facts are fully developed, be able to demonstrate that he is…entitled to relief, it is the duty of the courts to provide the necessary facilities and procedures for an adequate inquiry”)(internal quotation marks omitted; citation omitted); Giles v. Maryland, 386 U.S. 66, 74 (1967) (Also, prosecution has a duty to disclose and/or make available any evidence that could get used in obtaining favorable evidence); and State v. Hammond, 221 Conn. 264, 292-93 (1992)(In addition, the State has ethical duty, even after trial, to assist in pursuit of relevant, exculpatory evidence).

Also remember that the request or motion cannot be denied on the ground that the examination and testing might hamper a future prosecution if the writ of habeas corpus gets granted. So, no State interest that justifies the continued incarceration of a person who has actual or factual innocence. See Summerville v. Warden, 229 Conn. 397, 422 (1994). In addition, the very nature of the Great Writ of habeas corpus demands that an injustice get corrected not perpetuated.

Depositions can happen permitted in certain circumstances, but only with the permission of the habeas court. See Practice Book § 23-39.

Petitioner’s Discovery Request – Example

The following is an example of a motion for forensic testing, specifically, mtDNA testing, in a habeas case. Due to the motion’s age, all citations should get shepardized.

Motion for DNA Testing

Petitioner, pursuant to Practice Book Sections 23 -38(c)(“limited discovery [permissible if it] will enhance the fair and summary disposal of the case”), 40-9, 40-12 and 40-39, Bracy v. Gramley, 117 S.Ct. 1793, 1799 (1997)(“[w]here specific allegations before the court [in a habeas case] show reason to believe that the petitioner may, if the facts are fully developed, be able to demonstrate that he is…entitled to relief, it is the duty of the courts to provide the necessary facilities and procedures for an adequate inquiry”)(internal quotation marks omitted; citation omitted).

Also consider State v. Hammond, 221 Conn. 264, 292-93 (1992)(State has ethical duty, even after trial, to assist in pursuit of relevant, exculpatory evidence), renews his motion for mitochondrial DNA (hereinafter “mtDNA”) testing on certain hairs allegedly seized from the trunk of Petitioner’s car, which evidence gets secured at Mitotyping Technologies, LLC, in State College, Pennsylvania since July, 2001, but which awaits further order of the habeas court before testing can commence.

Refusal to permit mtDNA testing on the hairs would deny petitioner the opportunity to present exculpatory evidence and would significantly impair petitioner’s ability to prevail on his petition, all contrary to a growing national movement to ensure that wrongfully convicted persons have an opportunity to establish their innocence through DNA testing.

Claims in Petitioner’s Discovery Request

Paragraphs 12. k. iii and 13 of Count One of Petitioner’s Second Amended Petition collectively allege certain things. They allege that trial counsel rendered ineffective assistance under the state and federal constitutions. This happens when counsel failed to have scientific testing conducted. Testing should happen on the hairs purportedly found by police in the trunk of petitioner’s car and on the victim’s head hairs (pulled at the autopsy). This happens all for the purpose of demonstrating that such hairs are not “microscopically similar” and are not from the same source.

(TT. 2/115; 3/13; 8/145-50; 9/11-12, 9/43; 10/43-47, 10/50-51, 10/60-61; 11/8-10; see also State’s Exhibits 13 (autopsy hairs), 74 (hairs recovered from car trunk), 79 and 79a (photo boards of mounted hairs); State v. W*********, Conn. at,) Put another way, counsel erred in failing to have testing performed that would have demonstrated that the hairs allegedly found in the trunk of petitioner’s car did not belong to the victim.

Paragraphs 11 and 14 -17 of Count Three of the Second Amended Petition collectively allege that even if testing (or certain testing) was not reasonably available at the time of trial, such testing today could/will yield new exculpatory information that would support, in whole or in part, petitioner’s claim of actual and/or factual innocence. The failure of the habeas court to allow such testing would, of course, be fatal to both the factual claim, i.e., that the hairs found in the trunk of the car are not those of the victim, and the legal claims, i.e., that petitioner has been prejudiced by counsel’s failure and/or that he is actually innocent.