2020 Georgia Code
Title 17 - Criminal Procedure
Chapter 16 - Discovery
Article 1 - Definitions; Felony Cases
§ 17-16-6. Failure to Comply With Discovery Requirements

If at any time during the course of the proceedings it is brought to the attention of the court that the state has failed to comply with the requirements of this article, the court may order the state to permit the discovery or inspection, interview of the witness, grant a continuance, or, upon a showing of prejudice and bad faith, prohibit the state from introducing the evidence not disclosed or presenting the witness not disclosed, or may enter such other order as it deems just under the circumstances. If at any time during the course of the proceedings it is brought to the attention of the court that the defendant has failed to comply with the requirements of this article, the court may order the defendant to permit the discovery or inspection, interview of the witness, grant a continuance, or, upon a showing of prejudice and bad faith, prohibit the defendant from introducing the evidence not disclosed or presenting the witness not disclosed, or may enter such other order as it deems just under the circumstances. The court may specify the time, place, and manner of making the discovery, inspection, and interview and may prescribe such terms and conditions as are just.

(Code 1981, §17-16-6, enacted by Ga. L. 1994, p. 1895, § 4; Ga. L. 1995, p. 1250, § 2.)

- For annual survey of death penalty law, see 56 Mercer L. Rev. 197 (2004). For survey article on death penalty law, see 60 Mercer L. Rev. 105 (2008).

ANALYSIS

• General Consideration
• Use of Media
• Application
• Appeals

General Consideration

Improper notice regarding witnesses.

- Since the defendant acted in bad faith in failing to provide information regarding alibi witnesses, and the state was prejudiced thereby, the defendant could be prevented from presenting the testimony of witnesses not properly disclosed. Davis v. State, 226 Ga. App. 83, 485 S.E.2d 508 (1997); Bullard v. State, 242 Ga. App. 843, 530 S.E.2d 265 (2000); Freeman v. State, 245 Ga. App. 384, 537 S.E.2d 776 (2000).

Trial court was not required to consider any particular course of action in any particular order, but had discretion to take any listed corrective action the court deemed appropriate; the defendant's failure to notify the state that a witness had been discovered supported the finding that the defendant acted in bad faith. Jones v. State, 251 Ga. App. 285, 554 S.E.2d 238 (2001).

In the defendants' trial on a charge of murder and other crimes, the trial court did not abuse the court's discretion by limiting the testimony of a defense witness who was named as an alibi witness shortly before trial began. Reddick v. State, 264 Ga. App. 487, 591 S.E.2d 392 (2003), overruled on other grounds by State v. Springer, 297 Ga. 376, 774 S.E.2d 106 (2015).

Since the defendant failed to timely inform the attorney about the existence of an excluded witness, or to offer a justification or valid excuse for a failure to do so until three days before trial, the trial court did not err in excluding the witness's testimony. Card v. State, 273 Ga. App. 367, 615 S.E.2d 139 (2005).

- Trial court did not abuse the court's discretion in excluding a witness as the defendant did not disclose the witness's written statement to the state within ten days of trial; further, the defendant did not include the witness's birth date on the witness list and the state was unable to investigate the witness' criminal record, if any. Clark v. State, 271 Ga. App. 534, 610 S.E.2d 165 (2005).

- Trial court erred in excluding certain evidence on the basis that the evidence was not produced by the state until just over a month before trial, or had not been produced at all, in violation of the trial court's pre-trial scheduling order because the trial court's order was ambiguous both as to whether the trial court actually found bad faith on the part of the state at all in failing to produce the evidence, and as to the basis for the trial court's finding of prejudice to the defendant. State v. Bryant, 307 Ga. 850, 838 S.E.2d 855 (2020).

- Trial court had the discretion under O.C.G.A. § 17-16-6 to exclude witnesses provided by the defendant on the day of trial in violation of O.C.G.A. § 17-16-8(a); bad faith was satisfied because nothing in the record indicated that the defendant did not know of the witnesses, or did not intend to call the witnesses, until the day of the trial, and prejudice was established because the state had no notice of the witnesses until the day of trial and had no opportunity to investigate the witnesses or the witnesses' testimony. Acey v. State, 281 Ga. App. 197, 635 S.E.2d 814 (2006).

Trial court did not err in excluding a witness's testimony because the state was not informed of the witness as a possible witness until the third day of trial and had no opportunity to investigate the witness's testimony or background. Similarly, the trial court was authorized to find bad faith because defense counsel knew about the witness's existence and had a plan to call the witness as a potential witness prior to trial, and yet failed to inform the state about the witness until the third day of trial. Hudson v. State, 284 Ga. 595, 669 S.E.2d 94 (2008).

With regard to the defendant's malice murder conviction arising from the suffocation death of the defendant's newborn daughter, the trial court did not err in excluding testimony from the defendant's proffered expert witness on police interrogation techniques and false confessions based on the state not being timely notified of that witness and because the area in which the expert would express an opinion had not reached a level of scientific reliability so as to allow the evidence. It was within the trial court's authority to exclude the expert's testimony for the defendant's failure to disclose the expert and there was no showing that the false confession theory and the interrogation method satisfied the evidentiary test in criminal cases set forth in case law. Wright v. State, 285 Ga. 428, 677 S.E.2d 82 (2009), cert. denied, 558 U.S. 1123, 130 S. Ct. 1076, 175 L. Ed. 2d 903 (2010).

- Trial court did not abuse the court's discretion in denying the defendant's request to call a witness due to delay because the requirement of prejudice to the state under O.C.G.A. § 17-16-6 was satisfied since the state had no notice of the witness or a videotaped interview of a victim until the day of trial and, thus, had no opportunity to interview the witness, and the requirement of bad faith was satisfied since nothing indicated that the defendant did not know of the witness or the videotape until the day of trial; O.C.G.A. § 17-16-6 does not require the trial court to make a finding of prejudice or bad faith. Vaughn v. State, 307 Ga. App. 754, 706 S.E.2d 137 (2011).

Trial court did not abuse the court's discretion in refusing to allow an expert to testify that the defendant had post-traumatic stress disorder (PTSD) on the basis that the defendant did not disclose the expert as an expert witness in a timely fashion as the defendant did not make a proffer of the expert's testimony and, therefore, could not demonstrate prejudice; plus, the defendant testified at trial and informed the jury of the PTSD diagnosis. Keller v. State, 308 Ga. 492, 842 S.E.2d 22 (2020).

- Trial court did not abuse the court's discretion when the court excluded the defendant's alibi evidence, including the testimony of the defendant's alibi witnesses, pursuant to O.C.G.A. § 17-16-6, because the defendant's failure to timely come forward with the defendant's alibi defense constituted prejudice and bad faith; the state had notice of the alibi just three days before the start of trial, and although the defendant made the defendant's alibi witnesses available, at least one witness was uncooperative, further prejudicing the state. Huckabee v. State, 287 Ga. 728, 699 S.E.2d 531 (2010).

Exclusion of alibi evidence was not error as the defendant failed to notify the state of the alibi until the day of trial, and the finding that the defendant acted in bad faith was supported by the fact that the defendant presumably knew of an alibi when arrested but did not tell the arresting or investigating officers and neither alibi witness came forward to tell the prosecution or defense counsel of the alibi. Rembert v. State, 324 Ga. App. 146, 749 S.E.2d 744 (2013).

Defendant could not show a reasonable probability that the outcome of the trial would have been different if counsel met the notice requirements in O.C.G.A. § 17-16-5(a) and presented the defendant's alibi defense because of the overwhelming evidence against the defendant. Thus, the defendant did not receive ineffective assistance of counsel when the defendant's counsel failed to properly notify the prosecution of the defendant's alibi defense, which resulted in the exclusion of alibi testimony at trial pursuant to O.C.G.A. § 17-16-6. Jones v. State, 266 Ga. App. 679, 598 S.E.2d 65 (2004).

Trial court properly denied the defendant's motion for a new trial based on ineffective assistance as although the state filed a notice for demand of alibi defense, the defendant never maintained such a defense at trial and the record showed that the defendant decided not to testify based on having a prior conviction; thus, trial counsel's choice of trial strategy was consistent with the defendant's desire not to testify and was a reasonable choice based upon the pretrial assessment. Bostic v. State, 341 Ga. App. 402, 801 S.E.2d 89 (2017).

- Trial court did not abuse the court's discretion in permitting a witness to testify for the state although the witness was not included on the state's witness list because the defendant made no showing that the prosecutor acted in bad faith in failing to disclose the witness before trial, nor that the defendant was prejudiced by the omission of the witness from the witness list. Childs v. State, 287 Ga. 488, 696 S.E.2d 670 (2010).

Defendant's claim that the trial court erred in allowing a witness not on the state's witness list to testify failed because there was no evidence of prosecutorial misconduct or bad faith by the state, and the witness' name, address, telephone number, and notes related to the witness' interview with police were included in the discovery report provided to the defense. Wilkins v. State, 291 Ga. 483, 731 S.E.2d 346 (2012).

- Proper remedy for the state's failure to comply with O.C.G.A. § 17-16-4(a)(4) was to postpone the testimony of the state's blood spatter expert until late in the trial as the trial court did, pursuant to O.C.G.A. § 17-16-6. Further, by failing to ask for more time to prepare for the expert, the defendant waived any claim of error. Valentine v. State, 293 Ga. 533, 748 S.E.2d 437 (2013).

- Trial court did not err in admitting the defendant's statement that the informant the defendant saw at jail was the person "who busted him," as the defendant failed to show that the state acted in bad faith in disclosing the statement to the defendant during trial even though O.C.G.A. § 17-16-6 normally requires such a statement to be disclosed ten days before trial. Dixon v. State, 252 Ga. App. 385, 556 S.E.2d 480 (2001).

Theft by shoplifting conviction was upheld on appeal, despite the defendant's claim that the state violated the reciprocal discovery requirements of the Georgia Criminal Procedure Discovery Act, O.C.G.A. § 17-16-1 et seq., as the defendant conceded at trial that the state did not act in bad faith, and failed to request a continuance, but instead, communicated a readiness for trial to both the court and the prosecutor. Brown v. State, 281 Ga. App. 557, 636 S.E.2d 717 (2006).

It could not be said that the state acted in bad faith or that the defendant was prejudiced; thus, a statement the defendant made to a coworker was properly admitted into evidence and the coworker allowed to testify at trial. When the state became aware six days before trial of the statement, the state immediately notified the defendant of the statement; two days later, the defendant was made aware of the fact that the state planned to use the coworker as a witness; and the trial court stated that the court was willing to make the witness available to the defendant for an interview and to give the defendant all the time necessary to question the witness before the witness took the stand. Holmes v. State, 284 Ga. 330, 667 S.E.2d 71 (2008).

Due to interpretation difficulties, the state did not know that the defendant held a knife during an armed robbery until the Thursday before trial. As the state's disclosure to the defendant of this newly discovered evidence by at least the following Monday complied with O.C.G.A. § 17-16-4(c), the state did not act in bad faith, and the defendant was not prejudiced by the late disclosure; thus, evidence of the knife was properly admitted. Herieia v. State, 297 Ga. App. 872, 678 S.E.2d 548 (2009).

Trial court did not err by refusing to exclude evidence of the state's expert witness due to the state failing to provide a written summary of the expert's findings no later than ten days before trial, pursuant to O.C.G.A. § 17-16-4(a)(4), because the defendant failed to show either prejudice or bad faith on the part of the state, and the defendant did not seek a recess or continuance or request any other remedy authorized by O.C.G.A. § 17-16-6, except to object to the expert's qualifications. Hodges v. State, 319 Ga. App. 657, 738 S.E.2d 111 (2013).

- Because the trial court excluded the defendant's prior conviction based upon a belief that the court had no discretion based on the state's failure to give notice of the state's intent to use the prior conviction as required by O.C.G.A. § 17-16-4(a)(5), the trial court could consider the court's options under O.C.G.A. § 17-16-6 before re-sentencing. Kiser v. State, 327 Ga. App. 17, 755 S.E.2d 505 (2014).

- Failure of the state to provide the defendant with a knife before trial did not require the court to exclude the knife from evidence since the defendant made no showing that the defendant was prejudiced and since no continuance was requested to cure any prejudice which may have been precipitated as a result of the state's failure to comply. Tucker v. State, 222 Ga. App. 517, 474 S.E.2d 696 (1996); Parrott v. State, 240 Ga. App. 173, 523 S.E.2d 29 (1999); Roberts v. State, 244 Ga. App. 330, 534 S.E.2d 526 (2000).

Trial court did not have authority, under O.C.G.A. § 17-16-6, to exercise discretion and exclude the defendant's incriminating statement from evidence because the defendant made no showing that the defendant was prejudiced by the state's failure to make the defendant's custodial statement available to the defendant prior to the trial and because the defendant did not ask for a continuance. Bell v. State, 224 Ga. App. 191, 480 S.E.2d 241 (1997).

There was no error in denying the defendant's motion to exclude a supplemental crime lab report allegedly served in violation of the discovery act because the defendant did not request a continuance or make a showing of prejudice. Franklin v. State, 224 Ga. App. 578, 481 S.E.2d 852 (1997).

- Without a basis to conclude that the state would have been prejudiced unless testimony of the defendant's witness was excluded, the trial court abused the court's discretion by excluding the witness. Hill v. State, 232 Ga. App. 561, 502 S.E.2d 505 (1998).

Since the defendant made no showing that the defendant was prejudiced as a result of the state's failure to make a custodial statement available to the defendant prior to trial or that the state acted in bad faith in failing to list a witness, the trial court did not abuse the court's discretion in permitting the witness to testify. Jones v. State, 243 Ga. App. 351, 532 S.E.2d 120 (2000).

Defendants were not entitled to relief based upon the state's failure to serve the defendants with the notice required by O.C.G.A. § 17-16-5(b) because the defendants did not show that the state acted in bad faith nor that the defendants were prejudiced by the state's failure to separately disclose the names of the witnesses who would rebut the defendants' alibi defense. Hayes v. State, 249 Ga. App. 857, 549 S.E.2d 813 (2001).

Trial court did not abuse the court's discretion when the court allowed a state's witness to testify even though the name of the witness did not appear on the state's witness list as the trial court granted the defendant an opportunity to interview the witness before the witness testified and the defendant did not demonstrate prejudice from the state's failure to list the name. Gay v. State, 258 Ga. App. 634, 574 S.E.2d 861 (2002).

Trial court did not abuse the court's discretion in denying the appellant's motion for a continuance based on the state untimely serving a portion of a witness's custodial interview three days prior to trial because the appellant's contention that proper cross-examination questioning was prevented was unsupported by the evidence and the appellant did not present the testimony of any potential witnesses or offer any other evidence to show that any prejudice resulted from the denial of the motion. Easley v. State, 352 Ga. App. 1, 833 S.E.2d 591 (2019).

- Failure of the state to produce transcripts or tapes of the statements of victim witnesses did not require a mistrial since there had been a substantial cross-examination of one of the witnesses about inconsistencies, counsel had the opportunity to review the transcripts during a recess, and the tapes were played for the jury. Hammitt v. State, 225 Ga. App. 21, 482 S.E.2d 437 (1997).

- Because the trial court excluded fingerprint evidence that was not provided to the defendant before the trial and instructed the prosecutor to make no reference to the fingerprint evidence, the defendant could show no harm caused by the failure to disclose the fingerprint evidence before trial; therefore, the trial court properly denied the defendant's motion for mistrial. Davis v. State, 253 Ga. App. 803, 560 S.E.2d 711 (2002).

- Trial court properly dismissed the defendant's motion for a mistrial because the court did not abuse the court's discretion by concluding that the state did not act in bad faith by not furnishing the defendant with the victim's complete current address; furthermore, the defendant never requested a continuance to cure any prejudice which the defendant claimed may have resulted from the state's failure to comply with O.C.G.A. § 17-16-8(a). Consequently, the trial court did not have the authority, under O.C.G.A. § 17-16-6, to exercise discretion and exclude the victim's testimony at trial. Shields v. State, 264 Ga. App. 232, 590 S.E.2d 217 (2003).

In a case charging child molestation, the prosecution was obligated to provide the defense with a copy of a child's pretrial statement to an officer, even though the statement was in the exclusive possession of the police. However, since the defendant did not seek to prevent introduction of the statement, and counsel was allowed to inspect the report, the defendant failed to show that the defendant was prejudiced by the trial court's failure to order the state to make the report available to the defendant for copying, and the state's discovery violation did not give rise to any reversible error. Wilkerson v. State, 266 Ga. App. 721, 598 S.E.2d 364 (2004).

- Trial court did not err in denying the defendant's motion to exclude latent fingerprints due to the state's alleged noncompliance with the reciprocal discovery statute because the state did provide the defendant and the expert with an opportunity to examine the evidence. Alexander v. State, 276 Ga. App. 288, 623 S.E.2d 160 (2005).

With regard to the defendant's murder conviction, the defendant was not entitled to a mistrial because the state failed to provide an accomplice's statement about an alleged conversation between the defendant and a codefendant indicating a consciousness of guilt as the record showed that the witness was available to the parties for interview through an attorney prior to trial and the testimony provided at trial had not been reduced to a writing or otherwise recorded, but rather had been revealed during an interview the state conducted for the purposes of trial preparation; thus, there was nothing for the state to produce during discovery. Lewis v. State, 293 Ga. 110, 744 S.E.2d 21 (2013).

Trial court did not err in denying the defendant's motion for a mistrial based on the failure to produce witness statements because there was no evidence that the statements were lost or misplaced due to bad faith on the state's part; any argument that the statements might have aided the defense or provided a basis to impeach the state's witnesses was simply speculative; defense counsel was able to use the statements' absence to attempt to undermine a deputy's credibility at trial; and granting a mistrial would not be just under the circumstances, especially since there was no evidence in the record that the statements might yet be found and thus potentially alter the defendant's strategy in a new trial. Burton v. State, 330 Ga. App. 503, 767 S.E.2d 510 (2014).

Trial court did not err in denying the defendant's motion for a mistrial based on the prosecutor's misconduct in failing to disclose the statement the defendant made to the first investigator until eliciting testimony about the statement from the first investigator at trial because the undisclosed statement that the defendant made to the first investigator was the same in substance as the defendant's longer, more detailed, and audio-recorded statement to the second investigator, which was properly disclosed to the defendant and was played for the jury at trial; and trial counsel admitted that the first investigator's testimony did not provide any information from the defendant that had not already been disclosed in discovery. Prince v. State, 295 Ga. 788, 764 S.E.2d 362 (2014).

- Defendant's sole enumeration that the trial court erred in failing to exclude three new witnesses' testimony presented nothing to review; the trial court remedied the defendant's concern over the state's presentation of new witnesses by granting the defendant's request to voir dire the jurors and by removing the lone juror who knew one of the witnesses. Lee v. State, 255 Ga. App. 576, 565 S.E.2d 902 (2002).

Under O.C.G.A. § 17-16-6, the trial court's actions in allowing the defendant's counsel to inspect a detective's notes as well as the chance to question the detective in that regard were a permissible response to any failure by the state to comply with the Criminal Procedure Discovery Act, O.C.G.A. § 17-16-1 et seq.; furthermore, the defendant did not allege bad faith, and there was no prejudice because the evidence was merely cumulative of direct testimony. Swanson v. State, 282 Ga. 39, 644 S.E.2d 845 (2007).

- In a the defendant's child molestation trial, because a detective on the stand used notes that had not been disclosed in discovery, the trial court properly granted time for defense counsel to review the notes pursuant to O.C.G.A. § 17-16-6. McIntyre v. State, 302 Ga. App. 778, 691 S.E.2d 663 (2010).

- Defendant was not entitled to a continuance or sanctions since, prior to trial: (1) the defendant's attorney and the state viewed tapes of statements from both the defendant and the defendant's ex-girlfriend victim in which they discussed their prior difficulty; (2) the state offered the defendant's attorney the opportunity to look at the state's files regarding the prior difficulty; (3) the defendant and the defendant's attorney were well aware of the prior difficulty before the defendant's trial began; (4) there was no evidence of the state's bad faith; (5) the victim was cross-examined; and (6) there was no evidence of prejudice. Jackson v. State, 270 Ga. App. 166, 605 S.E.2d 876 (2004).

Trial court did not abuse the court's discretion when the court refused to grant the defendant's motion for a continuance after the state violated the reciprocal discovery statute, O.C.G.A. § 17-16-1 et seq., because defense counsel attempted to interview three witnesses on the first day of trial and declined to seek another such opportunity despite the state's invitation to do so early on the second day, and although the witnesses declined an interview, defense counsel asked for no additional relief; the defendant failed to identify any testimony that was a surprise or to show that, with a continuance, the defendant would have uncovered helpful information that the defendant did not already know, and the defendant was able to use a prior inconsistent statement to impeach one of the three witnesses who, the defendant claimed, provided the testimony which was most beneficial for the state. Norris v. State, 289 Ga. 154, 709 S.E.2d 792 (2011).

Trial court did not abuse the court's broad discretion under O.C.G.A. § 17-16-6 by denying the defendant a continuance and refusing to exclude evidence for the untimeliness of discovery because the trial court used the court's judgment to fashion a remedy appropriate to a case in which there was a speedy trial demand and no other reasonable time to proceed with the rather lengthy trial within the constraints of that demand. Higuera-Hernandez v. State, 289 Ga. 553, 714 S.E.2d 236 (2011).

Trial court did not err in denying the defendant's motion to continue the trial because, instead of delaying the entire trial, the trial court gave the defendant the opportunity to interview the state's gang expert witness, who testified a full week later; and providing that remedy instead of a continuance was well within the trial court's discretion under the circumstances, particularly because the allegations of gang affiliation should not have surprised the defendant's counsel and did not alter the defense's theory of the case. Cushenberry v. State, 300 Ga. 190, 794 S.E.2d 165 (2016).

Trial court did not abuse the court's broad discretion in denying a continuance because, assuming a discovery violation occurred, the trial court's remedy gave the defendant an oportunity to receive and review the recording before trial and the defendant made no showing that such remedy was inadequate or that any harm occurred; further, the recording in question was not even introduced into evidence at trial. Rowland v. State, 349 Ga. App. 650, 825 S.E.2d 231 (2019).

- Trial court properly denied the defendant's motion for mistrial based on alleged discovery misconduct under O.C.G.A. § 17-16-6; the defendant did not explain how the prosecution's failure to divulge a portion of an undercover officer's report prejudiced the defendant, and a mistrial, which would have been the equivalent of prohibiting the state from introducing or presenting the undisclosed evidence or witness, was not authorized by the statute. Ronoke v. State, 255 Ga. App. 420, 565 S.E.2d 594 (2002).

Defendant's failure to seek a continuance due to the state's alleged failure to comply with discovery waived the right to assert error on appeal; moreover, the defendant did not show that the defendant was prejudiced by the state improperly withholding any item to which the defendant was entitled, and thus failed to show reversible error. Sims v. State, 273 Ga. App. 723, 615 S.E.2d 785 (2005).

Pretermitting whether the state upheld the state's reciprocal discovery obligations, the defendant's failure during trial to assert a discovery violation deprived the trial court of an opportunity to formulate appropriate relief, if any. Garrett v. State, 285 Ga. App. 282, 645 S.E.2d 718 (2007).

State's violation of O.C.G.A. § 17-16-4(a)(1) by failing to timely to disclose the defendant's in-custody offer to bribe the victim not to testify did not mandate reversal as the defendant waived the right to assert this error by not requesting relief at trial under O.C.G.A. § 17-16-6. Spencer v. State, 296 Ga. App. 828, 676 S.E.2d 274 (2009).

Defendant failed to show prejudice as a result of the trial court's failure to exclude testimony of the surviving victim based on an alleged discovery violation because, inter alia, the defendant did not seek a recess or continuance or seek any other remedy under O.C.G.A. § 17-16-6. Falay v. State, 320 Ga. App. 781, 740 S.E.2d 738 (2013).

- Convicted of capital murder, the defendant's habeas corpus petition was granted, the conviction was reversed, and the defendant was awarded a new trial because the defendant prevailed on the Brady claim that the state failed to disclose to the defendant that the state had paid a confidential informant money for information that led to the defendant's conviction; the payment of money was exculpatory since the payment indicated that the informant could be impeached since the informant had a motive to lie. Schofield v. Palmer, 279 Ga. 848, 621 S.E.2d 726 (2005).

- Defendant's habeas corpus petition based upon failure to obtain Brady information was not procedurally barred since the defendant tried to obtain that information from the state but was not able to obtain the information until discovery in conjunction with the habeas corpus hearings. Schofield v. Palmer, 279 Ga. 848, 621 S.E.2d 726 (2005).

- Because: (1) the defendant did not object to the admissibility of three cash invoices on the ground that the state failed to produce the invoices during discovery; and (2) the state produced a jail inventory list as soon as was practicable, the defendant denied an offer for a continuance, and never presented any evidence of prejudice based on its admission, no violation of O.C.G.A. § 17-16-4 occurred requiring sanctions against the state under O.C.G.A. § 17-16-6. Bennett v. State, 289 Ga. App. 110, 657 S.E.2d 6 (2008).

- Trial court did not abuse the court's broad discretion under O.C.G.A. § 17-16-6 in fashioning an appropriate remedy and in refusing the harsh remedy of evidence exclusion for the untimeliness of discovery because a codefendant's testimony was not at variance with the testimony at the defendant's first trial, though it was couched in different terms; the trial court allowed the defense to interview the agent off the record before the agent took the stand and to introduce the transcript of the agent's prior testimony. Chance v. State, 291 Ga. 241, 728 S.E.2d 635 (2012).

- Although the defendant argued that a neurosurgeon's opinion should have been excluded because the state failed to provide notice of the neurosurgeon's opinion regarding Shaken Baby Syndrome ten days prior to trial as required by the reciprocal discovery statute, the defendant failed to show that the defendant was prejudiced by the state's non-disclosure of the neurosurgeon's opinion, warranting an exclusion of the testimony as two of the state's expert witnesses had already testified regarding Shaken Baby Syndrome, defense counsel was on notice that the Shaken Baby Syndrome theory could be put forward by the state through those experts, and the defense presented its own expert at trial as rebuttal expert testimony. Wyatt v. State, 300 Ga. 509, 796 S.E.2d 701 (2017).

Cited in Baker v. State, 238 Ga. App. 285, 518 S.E.2d 455 (1999); Sullivan v. State, 242 Ga. App. 839, 531 S.E.2d 367 (2000); Fairbanks v. State, 242 Ga. App. 830, 531 S.E.2d 381 (2000); Johnson v. State, 247 Ga. App. 660, 544 S.E.2d 496 (2001); Carter v. State, 253 Ga. App. 795, 560 S.E.2d 697 (2002); Parks v. State, 275 Ga. 320, 565 S.E.2d 447 (2002); Cordy v. State, 257 Ga. App. 726, 572 S.E.2d 73 (2002); Grier v. State, 276 Ga. App. 655, 624 S.E.2d 149 (2005); Muhammad v. State, 282 Ga. 247, 647 S.E.2d 560 (2007); Vega v. State, 285 Ga. 32, 673 S.E.2d 223 (2009); Hubert v. State, 297 Ga. App. 71, 676 S.E.2d 436 (2009); Day v. State, 302 Ga. App. 883, 691 S.E.2d 920 (2010); Leger v. State, 291 Ga. 584, 732 S.E.2d 53 (2012); Woods v. State, 342 Ga. App. 301, 802 S.E.2d 822 (2017).

Use of Media

Failure to give prior notice of letters.

- Because the state did not gain possession of letters that were entered into evidence until after the beginning of the trial and because the letters were not relevant until the defendant testified, the state did not violate the criminal discovery statute by failing to give prior notice of the letters. Moreover, the record showed that the defendant did not present any evidence showing that the state acted in bad faith in failing to provide the defense attorney with the letters earlier or that the defendant was prejudiced by the state's failure to provide the letters to the defendant's attorney at an earlier time; consequently, the trial court did not abuse the court's discretion in denying the defendant's motion to exclude the letters from evidence at trial. Boykin v. State, 264 Ga. App. 836, 592 S.E.2d 426 (2003).

- Trial court did not err in admitting into evidence the CDs retrieved from inside a CD changer seized from the defendant's home since: (1) the state timely disclosed the CD changer, which contained the CDs, and the prosecutor asserted that the prosecutor told defense counsel prior to trial that the CDs might be inside; (2) even if there was a discovery violation, the defendant failed to show bad faith by the prosecutor and prejudice; and (3) the defendant failed to request a continuance to cure any prejudice that might have resulted from the state's failure to comply with the reciprocal discovery requirements under O.C.G.A. § 17-16-4. Mullins v. State, 267 Ga. App. 393, 599 S.E.2d 340 (2004).

- Photo developer's cropping procedure eliminated one the defendant's cap from a photo; the state had the photo developed again, but the newly-developed photo, which showed the cap, was not provided to the defendants until the first day of jury selection. As the state did not act in bad faith, and alerted both the defendants and the court as soon as the state became aware of the problem, the trial court did not err in admitting the photo. Culler v. State, 277 Ga. 717, 594 S.E.2d 631 (2004).

- Defendant's new trial motion under O.C.G.A. § 5-5-22 was properly denied as the fact that the state failed to turn over two videotaped statements from the defendant's sons, arising from criminal charges due to a domestic dispute, was based on inadvertence rather than bad faith, there was unimpeached eyewitness testimony from other witnesses that was sufficient to support the defendant's convictions pursuant to former O.C.G.A. § 24-4-8 (see O.C.G.A. § 24-14-8), and there was no showing that the defendant suffered the kind of prejudice that undermined confidence in the outcome of the trial; accordingly, the defendant's Brady rights were not violated and there was no violation of O.C.G.A. §§ 17-16-6 and17-16-7. Ely v. State, 275 Ga. App. 708, 621 S.E.2d 811 (2005).

- In the absence of bad faith on the part of the state, as well as prejudice to the defendant, the trial court erred in excluding from evidence a videotape and photographs of child pornographic images taken from the defendant's computer as a sanction for the state's failure to comply with a court-ordered discovery deadline. State v. Jones, 283 Ga. App. 539, 642 S.E.2d 183 (2007).

- Because the record supported the trial court's ruling that the state did not act in bad faith with regard to disclosure of a witness's statement, the severe remedies that the defendant sought under O.C.G.A. § 17-16-6 were not applicable; the defendant had other audiotaped statements of the witness and had interviewed the witness and obtained an affidavit from the witness before trial, and the trial court granted the defendant an overnight continuance to review the additional statement before cross-examining the witness. Jones v. State, 290 Ga. 576, 722 S.E.2d 853 (2012).

- Even if the state had been required to disclose a 911 tape prior to trial, the tape's admission was not reversible error as the defendant failed to show that the state acted in bad faith as neither the prosecutor nor the investigator knew about the tape's existence before the start of the trial. Adams v. State, 340 Ga. App. 1, 795 S.E.2d 330 (2016).

- Defendant was not entitled to relief based on an alleged violation of O.C.G.A. § 17-16-4 and failure to remedy the violation under O.C.G.A. § 17-16-6 because the state turned over the subject records immediately after receiving the records and counsel did not move for a continuance, but the trial court gave counsel additional time to review the records Hambrick v. State, 353 Ga. App. 666, 839 S.E.2d 664 (2020).

- Failure of the trial court to turn over a handwritten statement of the victim in an assault case did not require a mistrial since the statement was merely cumulative of an audio tape of the victim's remarks and the court granted a continuance to allow the defendant to review the statement. Blankenship v. State, 229 Ga. App. 793, 494 S.E.2d 758 (1998).

- Because no specific evidence was cited, and no explanation was offered showing how the lack of evidence offered by a forensic examiner in opposition to the two challenged videotapes prejudiced the defense, and the defendant failed to show that any delay in production was in bad faith, no abuse of discretion resulted from admission of the videotapes. Milton v. State, 280 Ga. App. 179, 633 S.E.2d 606 (2006).

- Even if defense counsel had objected to the admission of an audiotape, the trial court would not have erred in permitting the audiotape to be played at trial as: (1) the defendant failed to object to the tape's admission at trial on the ground that the state failed to comply with discovery requirements; (2) the record disclosed that, during trial, the state made the defendant a copy of the audiotape, and permitted the defendant to listen to the audiotape during an overnight recess in the trial; and (3) the next day, the state did not play the tape, but had the investigator who conducted the taped interview testify only about the parts of the witness's statement that were inconsistent with that witness's trial testimony; hence, the defendant failed to show prejudice resulting from the admission of the audiotape. McNeal v. State, 281 Ga. 427, 637 S.E.2d 375 (2006).

- Since the state failed to produce photographs ten days before trial, but the defendant rejected the trial court's offer of a continuance, and since the photographs were merely cumulative of other evidence, there was no prejudice to the defendant shown and no abuse of discretion in admitting the photographs. Brown v. State, 236 Ga. App. 478, 512 S.E.2d 369 (1999).

Even though the prosecutor did not give the defendant sufficient notice of the existence of certain photographs, the defendant was not prejudiced by the admission of the photographs at trial. Corbin v. State, 240 Ga. App. 788, 525 S.E.2d 365 (1999).

In a prosecution for aggravated assault with intent to rape, the fact that the state failed to produce photos of the victim's injuries ten days before trial, as required by O.C.G.A. § 17-16-4(a)(3), was not grounds for reversal as the defendant did not ask for a continuance, did not show prejudice, and did not show that the state acted in bad faith. Murray v. State, 293 Ga. App. 516, 667 S.E.2d 382 (2008).

- Murder defendant's claim that the defendant was prejudiced by being unable to prepare for the damaging evidence of a booking photograph showing the defendant wearing clothes that were later shown to have the deceased's blood on them was rejected because the photograph was cumulative of other evidence, including testimony regarding the defendant's clothing and the clothing itself. Carson v. State, 308 Ga. 761, 843 S.E.2d 421 (2020).

- Since defense counsel was unable to state any harm from the delay in being permitted access to an audiotape presented at trial by the state, the trial court did not err in refusing to exclude the tape from evidence. Sledge v. State, 223 Ga. App. 488, 477 S.E.2d 898 (1996).

- Even if the defendant could show a violation of the discovery rule because a copy of an audiotape of the defendant's confession was not provided to the defendant's attorney, the defendant could show no harm because the tape was not introduced into evidence. Bertholf v. State, 224 Ga. App. 831, 482 S.E.2d 469 (1997).

- With regard to the defendant's domestic violence convictions, the trial court did not err in denying the admission into evidence of a photograph detailing the defendant's injuries based on failing to provide inspection of the photograph because any error by the trial court in excluding the photograph was harmless since the photograph was cumulative of both the defendant's testimony that the wife scratched the defendant as well as the wife's testimony that the wife tried to scratch the defendant. Palmer v. State, 330 Ga. App. 679, 769 S.E.2d 107 (2015).

- Trial court did not abuse the court's discretion by refusing to grant a continuance to allow the defendant to review a police videotape of the defendant's arrest since the state failed to timely provide the tape during discovery, but the defendant did not show how the defendant was prejudiced by the delay, and, in addition, the court accommodated most of the defendant's concerns by allowing the defendant additional time to review the tape, by prohibiting the state from introducing the tape and allowing the defendant to introduce the tape at the defendant's discretion, and by making the state's witnesses available for cross-examination throughout the trial. Peeples v. State, 234 Ga. App. 454, 507 S.E.2d 197 (1998).

- Trial court did not err in admitting statements the defendant's coconspirators made during the commission of a crime because the defendant did not allege or show bad faith under O.C.G.A. § 17-16-6 and did not request a continuance upon learning of the alleged discovery violation; the defendant proceeded under the reciprocal discovery provisions of O.C.G.A. § 17-16-1 et seq., and audiotapes of wiretap communications that transpired between a confidential informant and the coconspirators were not introduced at trial since the state relied upon U.S. Drug Enforcement Administration agents' testimony describing the communications. Kohler v. State, 300 Ga. App. 692, 686 S.E.2d 328 (2009).

Application

No bad faith in handling expert's ballistics report.

- Since a trial court found that there was no bad faith on the part of the state based on the failure of an expert's report to address testing done on a second bullet hole in the victim's shirt, exclusion of the evidence was not a viable option so trial counsel's decision to pursue a mistrial instead was reasonable. Bales v. State, 277 Ga. 713, 594 S.E.2d 644 (2004).

- Trial court did not abuse the court's discretion in refusing to exclude the DNA results from testing of a bloody knife and tee-shirt in the defendant's trial for murder, which the state sought to introduce three days into the state's case-in-chief, since the state had just received the results and defense counsel acknowledged at the hearing on the defendant's motion for a new trial that there was no evidence of prosecutorial misconduct and it was undisputed that the defendant was afforded an opportunity to interview the witnesses. Cockrell v. State, 281 Ga. 536, 640 S.E.2d 262 (2007).

- With regard to a the defendant's trial on various drug charges, the trial court did not err by refusing to exclude the evidence of a crime lab report for the methamphetamine allegedly sold based upon defense counsel not receiving a copy of the report as the record showed that the prosecution provided the defense with a certificate of service showing that the state served defense counsel with the crime lab results and the certificate of service also included the handwritten note that defense counsel was free to inspect the report at any time. The prosecution was not obligated to serve a copy of the lab report upon the defense and the defendant failed to prove bad faith on the part of the state and prejudice to the defense. Rogers v. State, 298 Ga. App. 895, 681 S.E.2d 693 (2009).

- Trial court did not err in admitting testimony and evidence relating to the second and third reports of an investigator who compared the latent fingerprints taken from the scene of the crime with the defendant's fingerprints and confirmed a match of the defendant's fingers because the state did not act in bad faith by failing to provide the second and third reports to the defendant prior to trial; the second report was provided to the defendant in discovery from the state, and the third report revealed newly discovered evidence, which the state did not discover until the investigator enlarged the defendant's fingerprint on charts in the investigator's preparation for trial, and as soon as the state received the third report from the state's investigator, the state provided the report to the defendant pursuant to O.C.G.A. § 17-16-4(c). Mallory v. State, 306 Ga. App. 684, 703 S.E.2d 120 (2010).

Trial court did not err by failing to exclude two fingerprint cards which had not been produced in discovery. Romero v. State, 247 Ga. App. 724, 545 S.E.2d 103 (2001).

- Under O.C.G.A. § 17-16-6, the trial court had discretion to exclude an inmate witness upon a showing of prejudice to the state and bad faith by the defense. Implicit in the trial court's decision that the court was permitted to exclude the inmate from testifying is the determination that prejudice and bad faith were shown; however, these determinations were not made and the prosecutor was properly given broad latitude in cross examining the inmate witness. Walker v. State, 268 Ga. App. 669, 602 S.E.2d 351 (2004).

- Exclusion of a the defendant's alibi witness was error, although the defendant failed to give the state the required ten-days' notice pursuant to O.C.G.A. § 17-16-5(a), as there was no finding of bad faith by the defendant or prejudice to the state under O.C.G.A. § 17-16-6. Ware v. State, 298 Ga. App. 232, 679 S.E.2d 797 (2009).

Trial court erred in excluding a witness's testimony based solely on the fact that the witness was not listed on the defendant's witness list because the defendant was entitled to rely on the state's supplemental witness list as a document furnished to the defendant pursuant to the Criminal Discovery Act, O.C.G.A. § 17-16-10 and was not required to also list the witness on the defendant's own witness list in order to call the witness as a witness at trial; when the trial court excluded the testimony, it was not aware that the witness had been identified by the state on the state's supplemental witness list, but when ruling on the state's objection to the witness because of an alleged discovery violation on the part of the defense. The trial court did not require the state to make the requisite showing of prejudice and bad faith on the part of the defendant as required by the Act, O.C.G.A. § 17-16-6, and the state could not have shown prejudice or bad faith on the part of the defendant because the state admitted that it had the witness's report and had researched the validity of the specific tests utilized by the witness, and the error was not harmless since it could not be said that the testimony would not have made a difference in the outcome of what the trial court described as a "very, very close case." Webb v. State, 300 Ga. App. 611, 685 S.E.2d 498 (2009).

Trial court erred in excluding testimony from two witnesses who came forward after the trial had started, because defense counsel could not have disclosed them prior to trial due to a lack of knowledge that they existed, and thus, there was no bad faith on the part of defense counsel. Mitchell v. State, 326 Ga. App. 899, 755 S.E.2d 308 (2014).

- Trial court did not err by admitting the state's evidence despite various alleged discovery violations because the state disclosed all of the state's evidence to the defendant and provided the defendant with the indictment and witness list during a probation revocation hearing 24 days prior to trial, and the defendant was informed at the revocation hearing that the evidence was the same as the evidence would be at the defendant's impending criminal trial; further, there was no evidence of bad faith on the part of the state. Fields v. State, 310 Ga. App. 455, 714 S.E.2d 45 (2011).

- Trial court did not abuse the court's discretion in denying the defendant's claim that the destruction of blood samples constituted a failure by the state to comply with the reciprocal discovery requirements pursuant to O.C.G.A. § 17-16-4 when the defendant failed to show that the state acted in bad faith. Clay v. State, 290 Ga. 822, 725 S.E.2d 260 (2012).

- Trial court did not err in denying the defendant's motion to exclude gang evidence that was provided to the defense on the Friday before and the morning of trial because the trial court found that the prosecutor had not acted in bad faith with regards to the state's statutory discovery obligations, but instead acted promptly as the prosecutor received new evidence; the defendant was not prejudiced by receiving the evidence on the eve of trial; and the late-disclosed evidence did not alter the defendant's theory of defense, which was and continued to be the assertion that, despite the defendant's relationship with the co-indictees, the defendant was merely present with them and did not aid and abet the attempted robbery. Cushenberry v. State, 300 Ga. 190, 794 S.E.2d 165 (2016).

- In an aggravated assault case, because there was no showing that the defense's discovery violation in failing to produce jail medical records showing the defendant's injuries was in bad faith as required by O.C.G.A. § 17-16-6, the trial court erred in excluding the records, and the error was not harmless given the defendant's testimony that the shooting occurred during a physical confrontation with the defendant's boyfriend and the prosecutor's emphasis on the lack of evidence of the defendant's injuries. Phillips v. State, 347 Ga. App. 147, 817 S.E.2d 711 (2018).

- Since the state did not receive and deliver a scientific report until four days before trial, permitting defense counsel to inspect the report during that time was not adequate, and a continuance was warranted. Brady v. State, 233 Ga. App. 287, 503 S.E.2d 906 (1998).

- Defendant failed to show that the defendant was prejudiced by trial counsel's failure to seek the exclusion of an expert's testimony as a sanction for the state's violation of O.C.G.A. § 17-16-6 because the trial court did not abuse the court's discretion by excluding, as a remedy, any specific testimony about the three victims. Love v. State, 349 Ga. App. 741, 824 S.E.2d 745 (2019).

Trial court did not err when the court, as a discovery sanction, precluded the defense's expert witness from testifying about a second meeting with the defendant as the defendant was not harmed by the ruling because the jury heard that the expert had two meetings with the defendant; and the defendant did not show what additional testimony the expert would have offered had the trial court ruled differently. Parker v. State, Ga. , S.E.2d (Sept. 8, 2020).

- Defendant's ineffective assistance of counsel claim failed based on defense counsel failing to object to the testimony of a firearms examiner concerning the results of their ballistics examination because the testimony complained of was elicited by a co-defendant during cross-examination and not by the state so the state had no obligation to provide the defendant with notice of the firearms examiner's opinion and the defendant also failed to show any prejudice or bad faith. Bryant v. State, 296 Ga. 456, 769 S.E.2d 57 (2015).

- Trial court abused the court's discretion in imposing the extreme sanction of evidence exclusion for the state's failure to produce the investigator's notes because the record did not show that the investigator's informal notes, which the state could not produce, were subject to discovery under any of the provisions of Georgia's Criminal Procedure Discovery Act, O.C.G.A. § 17-16-1 et seq. State v. Brown, 333 Ga. App. 643, 777 S.E.2d 27 (2015).

- In a first degree homicide by vehicle case, the exclusion of evidence that the car the defendant was driving had a possible mechanical malfunction was proper as the defendant violated the Criminal Procedure Discovery Act, O.C.G.A. § 17-16-1 et seq., by acting in bad faith in failing to preserve the car for inspection by the state because defense counsel induced the court's order to preserve the car by assuring the court that the defendant's father owned the car and that the car was being preserved for inspection, but those assurances were not true; thus, defense counsel's action was designed to ensure that the court had no opportunity to take additional steps to preserve the car for inspection by the state and to obtain a tactical advantage for the defendant. Moceri v. State, 338 Ga. App. 329, 788 S.E.2d 899 (2016), cert. denied, No. S17C0095, 2017 Ga. LEXIS 210 (Ga. 2017).

- Trial court did not abuse the court's discretion under O.C.G.A. § 17-16-6 in permitting witnesses to testify whose birth dates were not provided to the defendant at least ten days before the trial as required under O.C.G.A. § 17-16-8 since: (1) the defendant did not request that the trial court exclude the witnesses' testimony; (2) the witnesses' birth dates were provided to the defense during trial; (3) the defense did not request a continuance to attempt to cure any prejudice from the failure to have the birth dates before trial; and (4) the defense had the opportunity to interview the witnesses before trial. Ehle v. State, 275 Ga. 560, 570 S.E.2d 284 (2002).

- Trial court did not err in granting the state's motion for a mistrial as the defendant's failure to disclose all of the defendant's alibi witnesses after the state demanded that the defendant do so, coupled with defense counsel's mentioning in opening statement several witnesses who could place the defendant in another state at the time of the murders for which the defendant was on trial, warranted granting the mistrial because a ruling otherwise would violate the state's right to a fair trial and reward the defendant for the misconduct of the defendant's counsel. Tubbs v. State, 276 Ga. 751, 583 S.E.2d 853 (2003).

- Defendant did not have to show that the defendant would have been acquitted if the defendant had been able to obtain the Brady information; the defendant simply had to show, and did show, that the state's evidentiary suppression undermined confidence in the outcome of the trial. Schofield v. Palmer, 279 Ga. 848, 621 S.E.2d 726 (2005).

- Trial court did not abuse the court's discretion in excluding a telephone log and credit card receipt the defendant produced two weeks after the start of the trial given the finding that the defendant acted in bad faith in failing to provide discovery and that a continuance would unfairly burden the court and the state. Watson v. State, 278 Ga. 763, 604 S.E.2d 804 (2004), overruled on other grounds by State v. Lane, 308 Ga. 10, 838 S.E.2d 808 (2020).

- Despite the fact that the state failed to notify the defendant of a similar transaction action witness more than ten days before trial, the admission of the testimony was not erroneous as the prosecutor indicated that the defense was informed of the witness as soon as the prosecutor got the evidence and defense counsel was given an opportunity to interview the witness prior to the witness's testimony. Johnson v. State, 322 Ga. App. 612, 744 S.E.2d 903 (2013).

Appeals

Showing of harm required for reversal of conviction.

- Defendant could not rely on the erroneous exclusion of the defendant's witness as a basis for reversal of the defendant's conviction on appeal without an offer of proof in the trial record concerning the testimony the defendant expected the witness to give. Hill v. State, 232 Ga. App. 561, 502 S.E.2d 505 (1998).

In order to trigger the harsh sanction of excluding evidence improperly withheld from the defense, there must be a showing of prejudice to the defense and bad faith by the state. Brown v. State, 236 Ga. App. 478, 512 S.E.2d 369 (1999).

Since the defendant made no showing that the state improperly withheld evidence from the defendant or acted in bad faith so as to trigger the imposition of any of the sanctions authorized by O.C.G.A. § 17-6-6, the defendant failed to sustain the defendant's appellate burden of establishing how the defendant was harmed by the trial court's ruling regarding the defendant's failure to properly provide written notice to the prosecution under O.C.G.A. § 17-16-2(a). Miller v. State, 235 Ga. App. 724, 510 S.E.2d 560 (1999), appeal dismissed, 264 Ga. App. 801, 592 S.E.2d 450 (2003); Davis v. State, 240 Ga. App. 301, 522 S.E.2d 729 (1999).

Fact that the defendant's first taped interview, in which the defendant admitted furnishing a gun to a minor, was not provided to the defendant until nine days before trial, was harmless error because nothing in the material surprised the defendant as the defendant testified to the same information at the minor's trial. Rollinson v. State, 276 Ga. App. 375, 623 S.E.2d 211 (2005).

- Trial court's exclusion from evidence of two letters sent by a codefendant, after the codefendant's arrest, to the defendant's alibi witness, in which the codefendant recanted the custodial statements identifying the defendant as a participant in a store robbery, on the ground that the letters were not timely disclosed to the prosecution pursuant to O.C.G.A. § 17-16-4, even though the trial court made no specific finding that the defendant acted in bad faith and that the prosecution was prejudiced thereby, was harmless error, if any, as evidence was merely cumulative because the codefendant recanted the codefendant's custodial statement at trial. Brown v. State, 268 Ga. App. 24, 601 S.E.2d 405 (2004).

- Defendant waived the right to object to the introduction of a tape recording at trial by failing to object timely and expressly on the grounds that the introduction of the evidence would constitute a violation of any specific provision of the discovery statutes. Arrington v. State, 224 Ga. App. 676, 482 S.E.2d 400 (1997).

- Trial court did not err in allowing a witness to testify since the defendant did not request relief available under O.C.G.A. § 17-7-6, but merely stated that the defendant objected on the basis that the defendant was not properly served under the discovery statutes. Williams v. State, 226 Ga. App. 313, 485 S.E.2d 837 (1997).

RESEARCH REFERENCES

ALR.

- Failure of state prosecutor to disclose exculpatory physical evidence as violating due process - weapons, 53 A.L.R.6th 81.

Failure of state prosecutor to disclose exculpatory physical evidence as violating due process - personal items other than weapons, 55 A.L.R.6th 391.