author: L KNOLL, Justice. I,PER CURIAM.

text:
    MARY MOE, L.L.C., Nancy Noe, L.L.C., Peter Poe, L.L.C., and Richard Roe, L.L.C., Louisiana Limited Liability Companies Proceeding Pseudonymously v. LOUISIANA BOARD OF ETHICS.
    No. 2003-C-2220.
    Supreme Court of Louisiana.
    April 14, 2004.
    Order Granting Rehearing in Part July 2, 2004.

      Maris E. LeBlanc, R. Gray Sexton, Baton Rouge, Kathrin E. Yates, for applicant.
    Jane E. Booth, John D. Rawls, Booth & Booth, Metairie, for respondent.
   L KNOLL, Justice.

This civil case addresses the legal question of whether the Louisiana Board of Ethics (“Board”) exceeded its expressed authority provided by La. R.S. 18:1511.4(0, the Louisiana Campaign Finance Disclosure Act (“CFDA”), in issuing the subpoenas duces tecum at issue in this writ. The district court found the subpoenas did exceed the Board’s authority and permanently enjoined the Board from issuing any subpoena upon the plaintiffs. The court of appeal affirmed the district court’s ruling on the subject subpoenas, but modified the permanent injunction to enjoin the Board only from enforcing or reissuing the four subpoenas at issue. We granted this writ to address the validity of the subpoenas duces tecum and the permanent injunctions. Mary Moe, L.L.C. et al. v. Louisiana Board of Ethics, 03-2220 (La.11/26/03), 860 So.2d 1133. For the following reasons we reverse, finding the lower courts erred in enjoining the Board from issuing and enforcing the relevant subpoenas duces tecum.

FACTS AND PROCEDURAL HISTORY

The instant suit for declaratory judgment and injunction proceedings arises out of a confidential investigation initiated by the Board into the activities of the New Alliance Business Political Action Committee (“New Alliance”) and its four ^contributors comprised of Louisiana Leadership, L.L.C., Louisiana Optimism, L.L.C., Louisiana Spirit, L.L.C., and Louisiana Team Work, L.L.C. (“LLCs”) in relation to the February 2, 2002 New Orleans Mayoral Election Campaign. The investigation was commenced by a unanimous vote of the Board based upon a number of facts, which aroused the Board’s suspicion, particularly:

• On January 24, 2002, a group named “The New Alliance Business Political Action Committee” registered as a political committee pursuant to the CFDA, listing Gail Masters as the chairperson of the Committee.
• New Alliance filed late disclosure reports for the February 2, 2002 election listing four contributors: Louisiana Leadership, L.L.C., Louisiana Optimism, L.L.C., Louisiana Spirit, L.L.C., and Louisiana Team Work, L.L.C.
• The LLCs were organized with the Secretary of State as limited liability companies on January 14, 2002, and Gail Masters is listed as the registered agent and organizer for each of the LLCs.
• Late fees totaling $4,240 assessed against New Alliance were paid by check drawn upon the account of Louisiana Leadership, L.L.C. New Alliance listed this payment as an expenditure on its disclosure reports.
• The Board received allegations, with supporting documentation, that election advertisements originally purchased in the name of Louisiana Teamwork, L.L.C., were changed to list New Alliance as the sponsor of the ads.

In furtherance of its investigation, the Board issued subpoenas duces tecum to Gail Masters (“Masters”), as chairman of New Alliance and registered agent of each of the four LLCs, commanding the production of the following documents for the time frame of January 1, 2002 through March 15, 2002 from each of the five entities:

1. Any and all records of financial transactions of the entity.
2. Records of any and all receipts or income of the entity, including canceled checks, deposit slips, records of credit card receipts, or any other electronic transfers, and/or any other internal records of the entity evidencing income or receipts of the entity.
|s3. Copies of any and all checks written by the entity and/or any other payments made by the entity by wire transfer or any other electronic means.
4. Copies of any and all invoices and/or billing statements received by the entity.

The LLCs did not respond to the subpoenas, but rather filed the present suit against the Board seeking a temporary restraining order, preliminary injunction, permanent injunction, and declaratory judgment to quash the subpoenas and prevent their reissuance. The petition “alleged that the subpoenas constituted an attempt at an unreasonable search and seizure in violation of the petitioners’ right to privacy, and that the authority granted the Board by the legislature under the [Campaign Finance Disclosure Act] is in violation of the Louisiana Constitution.” New Alliance responded to the subpoenas in a writing that asserted no such records existed because the organization had never maintained a bank account and did not receive any invoices or billing statements.

The district court issued a temporary restraining order and, after a closed hearing, denied the Board’s exceptions of nonconformity of the petition and insufficiency of service of process. The district court orally granted the LLCs request for a preliminary injunction, stating:

The subpoenas seek to get information from these companies as they were listed as contributors to a political action committee known as New Alliance.... The Court finds that to order these subpoenas to be answered would invade the right to privacy of these corporations as they were duly organized under the laws of the State of Louisiana. And that while the New Alliance ... has an obligation under the law to disclose its contributors, the Court does not find that— to extend that requirement of law to the business records of the contributors is warranted, which is covered — which is not covered by the right to privacy. And the Court finds that the right to privacy of their records to not disclose to them the individual business corporate records of the four corporations. Therefore, the Court will grant the Preliminary Injunction.

|4The district court issued a written judgment, which noted the stipulation of the parties who stated on the record they would waive their right to a trial on the merits and consent to entry of a final judgment and a permanent injunction enjoining the Board from “directly or indirectly enforcing, issuing, or reissuing any subpoena or subpoena duces tecum upon or directed against [the four named LLCs] or ... any of those companies’ members, officers, employees, agents or attorneys.”

On appeal, the appellate court found the Board clearly had the authority to issue subpoenas on the LLCs because La. R.S. 18:1511.4(0 expressly gives the Board subpoena power over any person who may have information relevant to an investigation, not merely over those registered as political committees. The court of appeal also held the suspicious circumstances in this present case provided sufficient cause for the Board to initiate a confidential investigation into the activities of New Alliance, which necessarily included obtaining information from its only contributors, the four LLCs.

Although the appellate court found the subpoenas in the present case were not sufficiently tailored to the Board’s objectives and were oppressive and unduly burdensome within the terms of La. R.S. 18:1511.4, the court also found the district court’s injunction overly broad because it prevented the Board from “directly or indirectly enforcing, issuing, or reissuing any subpoena or subpoena duces tecum upon or directed against” any of the LLCs. Acknowledging the Board’s authority to issue subpoenas duces tecum upon the LLCs so long as those subpoenas are “carefully tailored to elicit only records and documents pertinent to the Board’s investigation,” the court modified the district court’s permanent injunction, enjoining the Board “from directly or indirectly enforcing, issuing, or reissuing to the plaintiff LLCs the four subpoenas which are the subject of this litigation,” and affirmed the | ¿judgment as amended. This Court granted the Board’s writ application to review the scope of the Board’s authority to issue subpoenas duces tecum in its investigatory capacity and to determine whether the issuance of the permanent injunctions were correct vel non.

LAW AND ANALYSIS

The Louisiana Board of Ethics

The Legislature created and enabled the Louisiana Board of Ethics for Elected Officials through the enactment of La. R.S. 43:1132 pursuant to Article X, Section 21 of the Louisiana Constitution, empowering the Board to enforce the provisions of the Louisiana Code of Governmental Ethics and entrusting the Board with the responsibility to regulate campaign practices, by designating the Board to serve as the Supervisory Committee on Campaign Finance Disclosure. 1988 La. Acts 994; La. Rev.Stat. §§ 42:1132(0 & 18:1511.1(A) (2003); James S. Burland, Louisiana Campaign Finance: A Neiv Era of Increased Regulation and Limitation of Election Activities in Louisiana, 35 La. B.J. 434, 435 (Apr.1989); see also, Duplantis v. Louisiana Bd. of Ethics, 00-1956 (La.3/23/01), 782 So.2d 582. In its capacity as the Supervisory Committee on Campaign Finance Disclosure, the Board regulates and enforces the requirements of the CFDA. See La.Rev.Stat. § 18:1483 et seq. (2003).

Recognizing “that the effectiveness of representative government is dependent upon a knowledgeable electorate and the confidence of the electorate in their elected public officials,” the Legislature enacted the CFDA to provide public disclosure of the financing of election campaigns and to prevent unfair campaign practices with a view toward promoting public confidence in the integrity of our elected officials. La.Rev.Stat. § 18:1482 (2003); see also, Burland, supra. Accordingly, the CFDA requires the disclosure of those transactions entered into by political committees and [ individual contributors for the purpose of promoting or opposing a candidate or proposition in an election. Burland, supra.

A political committee is • “two or more persons, other than a husband and wife, and any corporation organized for the primary purpose of supporting or opposing one or more candidates, propositions, recalls of a public officer, or political parties, which accepts contributions in the name of the committee, or makes expenditures from committee funds or in the name of the committee, or makes a transfer of funds to or receives a transfer of funds from another committee, or receives or makes loans in an aggregate amount in excess of $500 within any calendar year.” La.Rev.Stat. § 18:1488(14)(a)(1). Any political committee that receives contributions, makes expenditures, or participates in the transfer of funds in excess of $500 a year must register with the Board by filing a statement of organization and may not participate in any election-related transactions until the statement of organization is filed. La.Rev.Stat. § 18:1491.1.

Such registration must provide “the name and address of the committee and its chairman, officers, or directors, the names, addresses, and relationships of affiliated organizations, a listing of all banks, safety deposit boxes, or other depositories used for committee funds, and the estimated number of members and a certification of the membership.” La.Rev.Stat. § 18:1491.1(B). In addition to registering with the Board, the political committee must also submit periodic reports detailing the organization’s financial activities. La. Rev.Stat. §§ 18:1491.6, 1491.7, 1495.4, 1495.5; see also, Burland, supra, at 435-36. Any failure to submit or an untimely submission of the required reports constitutes a violation of the CFDA. La.Rev. Stat. § 18:1505.1. Moreover, any person who makes expenditures during an election ^campaign exceeding $500 in the aggregate must report the independent expenditures to the Board. See La.Rev.Stat. §§ 18:1484(4) & 1501.1.

The Board’s Enforcement Authority

Under La. R.S. 18:1511.4(A), the Board, as the supervisory committee, may investigate any apparent or alleged violation of the CFDA, and its enforcement authority commences when the Board is presented with information suggesting a violation of the CFDA has occurred. Upon receipt of this information, the Board is obliged to consider whether to institute a confidential investigation. See La.Rev.Stat. §§ 18:1511.4 & 1511.5.

The Board by a two-thirds vote of its membership, or by a vote of eight of the eleven Board members, may initiate such an investigation when, as a result of its review of reports, other documents, or information filed under the provisions of the CFDA, it determines there is reason to believe such a violation of the CFDA has occurred. La.Rev.Stat. § 18:1511.4(A). The Board “shall initiate an investigation when it makes a determination upon receipt of a sworn complaint filed with the supervisory committee by any person who believes a violation of the CFDA has occurred.” Id.

Once the Board votes to institute a confidential investigation, the person or committee who is the subject of the investigation is notified of the investigation by certified mail, and when the investigation stems from allegations received in a sworn complaint, the Board is required to enclose a copy of the complaint in its notification. After the Board sends the notification, the investigation is conducted by an investigator for the Board. The Board is given the authority to examine or audit records and reports required to be maintained or filed under the provisions of the CFDA. The Board also has the power and authority “to hold hearings, to subpoena [¿witnesses, administer oaths, compel the production of books, records, and papers, public and private, require the submission under oath of written reports or answers to questions, and to do all that is necessary to effect the provisions” of the CFDA. La.Rev. Stat. § 18:1511.4(0(1).

If the Board issues a subpoena, and the subject refuses to comply with the subpoena, La. R.S. 18:1511.4(D) authorizes the Board to seek enforcement of its subpoena in the district court. On the other hand, La. R.S. 18:1511.4(0(2) grants the authority to the district court to make any order which justice requires to protect “an affected party including, but not limited to, a candidate, committee, any member of a committee, a prospective witness or any person whose books, records, papers, or other documents are the subject of any subpoena,” from annoyance, embarrassment, oppression, or undue burden or expense.

When the results of the investigation by the Board indicate that a violation of the CFDA has occurred which is subject to civil penalties, the Board is authorized by statute to file civil proceedings in district court to collect the civil penalties. La.Rev. Stat. § 1511.5; see also, State Through Bd. of Ethics for Elected Officials v. Green, 566 So.2d 623, 624 (La.1990). “Each complaint received by the Board, each review by the committee of reports for compliance with the provisions of the CFDA, and all information forwarded to or gathered by the Board with regard to such complaints or reviews and all investigations and proceedings of the Board with regard to the same shall be kept strictly confidential” until such action is taken by the Board. La.Rev.Stat. § 18:1511.8.

The Board’s Investigation of the LLCs

In the instant case, the Board commenced its investigation by a unanimous vote of its members based upon a number of facts, which aroused suspicion that the LLCs Uwere in fact political committees, 1.e. entities organized for the primary purpose of supporting or opposing candidates. After searching the public domain, the Board found no evidence the LLCs had any business purpose at all as their Articles of Organization were silent as to any particular or specific purpose for which they were formed. Also, the Board discovered the LLCs had no phone listings, no occupational licenses in the City of New Orleans, no records of transactions filed in the Conveyance Records of Orleans Parish, and no registrations with the Louisiana Department of Revenue. Believing there was no other method of determining whether the primary purpose of the LLCs was to “support or oppose” candidates, the Board issued the subpoenas duces tecum requiring the production of the LLCs’ records of financial transactions spanning the period of January 1, 2002 through March 15, 2002, the months immediately preceding and following the February 2002 New Orleans Mayoral Election. The Board is now prevented from enforcing these subpoenas by the lower courts’ permanent injunction, which the Board is presently seeking review of by this court.

Standard of Review

The standard of review for the issuance of a permanent injunction is the manifest error standard. Parish of Jefferson v. Lafreniere Park Foundation, 98-146 (La.App. 5 Cir. 7/28/98), 716 So.2d 472, 478; Pogo Producing Co. v. United Gas Pipe Line Co., 511 So.2d 809, 812 (La.App. 4th Cir.1987), unit denied, 514 So.2d 1164 (La.1987). The issuance of a permanent injunction takes place only after a trial on the merits in which the burden of proof is a preponderance of the evidence, but a preliminary injunction may be issued on merely a prima facie showing by the plaintiff that he is entitled to relief. Werner Enterprises, Inc. v. Westend Dev. Co., 477 So.2d 829, 832 (La.App. 5th Cir.1985); Kliebert Educational Trust v. Watson Marines Services, Inc., 454 So.2d 855 (La.App. 5th Cir.1984), writ denied, 457 So.2d 682 (La.1984); Federal Nat’l Mortg. Ass’n. v. O’Donnell, 446 So.2d 395, 399 (La.App. 5th Cir.1984); General Motors Acceptance Corp. v. Daniels, 377 So.2d 346, 348 (La.1979). Notably, parties may agree to consolidate trial on the merits of a permanent injunction with the judgment issuing a preliminary injunction. Dunn v. Sutton, 381 So.2d 1221, 1221 (La.1980).

In this case, the parties agreed to a consolidation of the trial on the merits and the rule of the preliminary injunction. Under these circumstances, the permanent injunction is not a result of a trial on the merits, but is based on a prima facie showing by the plaintiff that he is entitled to a preliminary injunction. Given the stipulation in this case, the court of appeal determined the district court used the standard for granting a preliminary injunction, i.e. a prima facie showing, instead of a preponderance of the evidence standard. Thus, the court of appeal held the standard of review for the conclusions made by the district court based on its findings of fact were not subject to the higher burden of proof and, therefore, should not be subject to the higher standard of review. We agree and engage in a de novo review of the court of appeal’s granting of the permanent injunction enjoining the Board from issuing, enforcing, or reissuing the four subpoenas duces te-cum at issue in this case.

The Subpoenas Duces Tecum

To determine whether the court of appeal erred in granting the permanent injunctions, we must examine the subpoenas duces tecum. “Generally speaking, a subpoena is valid, must be obeyed, and will be upheld and enforced by the courts so long as the investigation is for a lawfully authorized purpose within the power of the | ^legislature to command, the information sought is relevant and material to the investigation, and the conditions under which production of records is ordered are not unreasonable.” Francis v. Accardo, 602 So.2d 1066, 1068 (La.App. 1st Cir. 1992), (quoting 2 Am.Jur.2d Administrative Law § 268 (1962)); see also, Oklahoma Press Pub. Co. v. Walling, 327 U.S. 186, 66 S.Ct. 494, 90 L.Ed. 614 (1946); U.S. v. Morton Salt Co., 338 U.S. 632, 652-53, 70 S.Ct. 357, 94 L.Ed. 401 (1950); See v. City of Seattle, 387 U.S. 541, 544, 87 S.Ct. 1737, 18 L.Ed.2d 943 (1967); Donovan v. Lone Steer, Inc., 464 U.S. 408, 415, 104 S.Ct. 769, 78 L.Ed.2d 567 (1984).

An administrative agency’s power to issue investigative subpoenas depends upon legislative authorization in a particular enabling statute. Lee Modjeska, Administrative Law: Practice and Procedure § 2.4, 26 (1982); Charles H. Koch, Administrative Law and Practice § 3.12, 152 (2d ed.1997). In the present case, the court of appeal correctly found La. R.S. 18:1511.4(C) expressly gives the Board subpoena power over any person who may have information relevant to an investigation. See La.Rev.Stat. § 18:1511.4(C). This subpoena power grants to the Board the lawful authority to issue subpoenas on the LLCs in furtherance of its investigation into the potential violations of the CFDA.

Moreover, the evidence sought by the subpoena must be reasonably relevant and material to the investigation’s lawfully authorized purpose. See U.S. v. Powell, 379 U.S. 48, 57-58, 85 S.Ct. 248, 13 L.Ed.2d 112 (1964); Modjeska, supra, at 27; Koch, supra, at 31 (West Supp.2003-2004). The purpose of the Board’s investigation is to determine whether the LLCs were political committees or rather, whether the LLCs were organized for the primary purpose of supporting or opposing candidates. The financial records subject to the Board’s subpoenas are material and relevant to the Board’s investigation primarily because the Board has no other method of determining whether the primary purpose of the LLCs was to support or oppose candidates given the fact the public | ^domain is devoid of any evidence indicating the LLCs have any business purpose at all. Put simply, the Board has no other way to determine the business purpose of the LLCs except to examine the records of their receipts and disbursements during the relevant time period.

The subpoena must be sufficiently limited in scope and specific in directive so that compliance will not be unreasonable, overbroad, or unduly burdensome. See, Donovan, 464 U.S. at 415, 104 S.Ct. 769; See, 387 U.S. at 544, 87 S.Ct. 1741; Koch, supra, at 31 (West Supp. 2003-04). Contrary to the conclusions reached by the lower courts, we do not find the subpoenas unreasonable, over-broad, or unduly burdensome on the LLCs, nor do we find requiring the LLCs to answer the subpoenas violates their privacy rights. First, the subpoenas are narrowly tailored as they require the production of the entities’ records of financial transactions spanning a period of campaign activity for the February 2, 2000 New Orleans Mayoral Election, specifically from January 14, 2002 to March 15, 2002, an eight-week period. Based on the infancy of these LLCs, especially considering the LLCs were first organized on January 14, 2002, we agree with the Board it is only likely two months of bank statements will need to be produced and examined, because the Board only requests the financial records of the LLCs from their inception on January 14, 2002, until March 15, 2002. Moreover, the LLCs fail to demonstrate how the subpoenas are unduly burdensome, given the LLCs will most likely only have to produce two bank statements each.

Second, as regards the LLCs’ privacy claim, all investigations by the Board are strictly confidential as required by the CFDA. Furthermore, the Board’s investigation will not be made public unless and until the Board files an enforcement action against 11sthe LLCs in district court which would only occur after the investigation is concluded and the Board determines a violation of the CFDA has in fact occurred requiring civil remediation.

Finally, the LLCs have repeatedly argued due process concerns require the Board have probable cause to issue the subpoenas. However, the Board as an administrative agency employing its investigatory powers in its investigatory function does not need probable cause to exercise its investigative or subpoena powers. Francis, 602 So.2d at 1066; see also, Hannah v. Larche, 363 U.S. 420, 80 S.Ct. 1502, 4 L.Ed.2d 1307 (1960); Georator Corp. v. EEOC, 592 F.2d 765 (4th Cir.1979). “It is now settled that, when an administrative agency subpoenas corporate books or records, the Fourth Amendment requires [only] that the subpoena be sufficiently limited in scope, relevant in purpose, and specific in directive so that compliance will not be unreasonably burdensome,” Donovan, 464 U.S. at 415, 104 S.Ct. 769. As discussed above, we find the subpoenas at issue more than adequately comport with such requirements.

Additionally, due process is an elusive concept. Hannah, 363 U.S. at 446, 80 S.Ct. 1502. Its exact boundaries are undefinable, and its content varies according to specific factual contexts. Id. When a general fact-finding investigation is being conducted, it is not necessary that the full panoply of judicial procedures be used. Id. Therefore, as a generalization, it can be said that due process embodies the differing rules of fair play which through the years have become associated with differing types of proceedings. Id. Undoubtedly, the reason for this distinction is to prevent the sterilization of | uinvestigations by burdening them with heightened requirements, such as probable cause. See Hannah, 363 U.S. at 448, 80 S.Ct. 1502. Thus, the Board needs only sufficient reasonable cause to believe that a violation of the CFDA has occurred and that the records sought are relevant and material to its investigation of the alleged violation to exercise its subpoena power and obtain the records of the LLCs.

As the appellate court found, the suspicious circumstances cited by the Board, specifically the assertion by New Alliance that it did not have a checking account, coupled with the suspicious pattern of expenditures and contributions, as well as the evidence that one of the LLCs paid for an advertisement sponsored by New Alliance and paid a statutory fíne owed by New Alliance, provided more than sufficient reasonable cause for the Board to initiate a confidential investigation into the activities of New Alliance and its sole contributors, the LLCs. Moreover, as the appellate court noted, cash expenditures by political committees are prohibited by the CFDA, as is the payment of one political committee’s obligation by another political committee. Furthermore, if one of the LLCs had made direct payments of campaign-related expenses totaling more than five hundred dollars, the LLC would be subject to the same reporting regulations as a political committee under the CFDA. See La.Rev.Stat. § 18:1501.1. Clearly, all these factors sufficiently warranted an investigation of the LLCs by the Board and the issuance of the subpoenas.

Moreover, we find the LLCs have not been deprived of due process in this matter. The LLCs exercised their rights under La. R.S. 18:1511.4(C)(2) and subjected the issuance of the subpoenas to review not only by the district court, but also by the court of appeal and this Court. The LLCs have been afforded sufficient due process.

hJn conclusion, we find the Board had the statutory authority and sufficient reasonable cause to issue the subpoenas duces tecum, which requested the material and relevant financial records of the LLCs for the limited time period spanning the February 2, 2002 New Orleans Mayoral Election, in an effort to further its investigation of the LLCs’ activities to determine whether the entities were created primarily to support or oppose a candidate in the election.

DECREE

For the foregoing reasons, the judgments of the lower courts that permanently enjoined the Louisiana Board of Ethics from issuing the subpoenas duces tecum to the Louisiana Leadership, L.L.C., Louisiana Optimism, L.L.C., Louisiana Spirit, L.L.C., and Louisiana Team Work, L.L.C. are reversed, and the plaintiffs are ordered to respond to the subpoenas duces tecum issued on them by the Louisiana Board of Ethics.

REVERSED.

ON REHEARING

I,PER CURIAM.

Rehearing granted in part, otherwise denied. Rehearing is granted for the limited purpose of remanding this case to the district court for a hearing on the plaintiffs’ constitutional challenge to the Board’s statutory powers over campaign finances.

      . The district court and appellate court both allowed the LLCs to proceed pseudonymously, hence the present caption in this matter.

      . Moreover, we denied the LLCs’ writ application in which the LLCs raised as their sole assignment of error the appellate court's use of the de novo standard of review. See Mary Moe, L.L.C. et al. v. Louisiana Board of Ethics, 03-2200 (La.11/26/03) 860 So.2d 1133.

      . The subject subpoenas actually reflect a January 1, 2002 commencement date, but as the LLCs did not come into existence until January 14, 2002, the commencement date obviously must be January 14, 2002.

      . The LLCs also argued the Board is an adjudicatory agency to which the Fourth Amendment restrictions apply. However, because the LLCs did not raise this argument until their brief to this Court, this issue is not properly before us. Therefore, we pretermit any discussion of Fourth Amendment restrictions on the investigatory powers of adjudicatory agencies, and we will treat the Board as an investigatory administrative agency for the purpose of this opinion.

      .The following discussion is in further completion of our discussion of due process in the context of investigatory 'agencies and is not intended as an attempt to address due process in the context of adjudicatory agency, an issue which the LLCs first raised in this court and which is not properly before us. See, supra note 4.


source: Caselaw Access Project

author: | .PER CURIAM.

license: Public Domain

text:
    In re MATTER UNDER INVESTIGATION GRAND JURY NO. 1.
    No. 2004-KK-0672.
    Supreme Court of Louisiana.
    May 14, 2004.
   | .PER CURIAM.

The state, through the office of the Attorney General, seeks review in this Court of an order directing it to pay the entire cost of transcribing testimony of witnesses before a grand jury convened in the 14th Judicial District, Parish of Calcasieu, in 2003, to investigate the quality of care rendered to four residents of the Greenhill Nursing Homes in DeQuincy, Louisiana, a state-licensed health care facility.

The trial court ordered the testimony transcribed in response to a motion filed by defense counsel representing several present and former employees of the facility, both witnesses and targets of the investigation, to enjoin proceedings before the grand jury and to empanel a new grand jury. Defense counsel based his motion on allegations that in the presence of the grand jurors the prosecuting attorneys advised two of his clients, called as witnesses, that they should refrain from discussing their grand jury testimony with anyone, especially with counsel. The motion further alleged that prosecutors admonished a third client, a target of the investigation, again in the presence of the grand jurors and also in the presence of counsel, see La.C.Cr.P. art. 433(A)(2)(“An attorney for a target of the grand jury’s investigation may be present during the testimony of said target.”), that counsel labored under an actual conflict of interest and that the court would, if the witness so desired, find other, non-conflicted counsel. The state opposed the motion on legal grounds, filing a motion to dismiss it summarily, and 1 Palso raised questions about the accuracy of the witness’s affidavits attached to counsel’s motion as to what was or was not said inside the grand jury room. In addition, the state filed a motion to inquire into the question of whether counsel’s representation of several witnesses and targets of the investigation was inherently conducive to conflicts of interest and a second motion to disqualify counsel on conflict grounds from further representation of any witness or target called before the grand jury. The trial court ordered the testimony of all witnesses appearing before the grand jury transcribed to resolve the competing motions and in the interim, the state agreed to suspend presentation of its case before the grand jury.

By the time the court reviewed the transcripts and ruled on the motions, the grand jury term had expired without indictments returned against anyone concerned in the investigation. Although the motion to enjoin the proceedings was therefore moot, the court observed that in any event the allegations made by counsel would not have justified enjoining the grand jury investigation even if it were still proceeding. On the other hand, in the court’s opinion the transcripts of testimony given before the grand jury bore out counsel’s allegations regarding the advice given by the prosecutor to his three clients and thereby justified its order directing the transcription in the first place. In the court’s view, the warnings delivered by the prosecutor to the witnesses would have been sufficient, if the grand jury were still proceeding, “to require an admonition that was going to have to be made to [the grand jurors] ...” to disregard the prosecutor’s |scomments. As for the state’s motion to disqualify counsel, the court deferred ruling on the merits until after indictments were returned. To the extent that the grand jury transcripts supported the factual allegations made by counsel in his motion, and that the only motion resolved on the merits had been resolved in counsel’s favor, the court as^ sessed all costs of the transcription against the state in the amount of $4,000. A divided panel in the Third Circuit denied review without comment. In Re: Matter Under Investigation Grand Jury NO. 1, 03-01623 (La.App. 3rd Cir.2/18/04), (Amy, J., dissenting).

In its application to this Court, the state does not contest the merits of the district court’s ruling that the prosecutor’s advice to the three witnesses was improper. While we are not commenting on the merits of defense counsel’s motion, by the same token we are not condoning the State’s advice to certain witnesses and the grand jury during the grand jury investigation. However, the state argues that the court should not have considered counsel’s motion in the first place because the inquiry into the factual allegations of the motion compromised the independence of the grand jury as an investigating body and jeopardized the secrecy that is the hallmark of grand jury proceedings in Louisiana and elsewhere. La.C.Cr.P. art. 434(A)(“Members of the grand jury, all other persons present at a grand jury meeting, and all persons having confidential access to information concerning grand jury proceedings, shall keep secret the testimony of witnesses and all other matters occurring at, or directly connected with, a meeting of the grand jury.”). To the extent that the court’s order of all costs of transcription rested on the premise that the factual dispute resolved by the transcripts was one which the district court had the authority to address in the exercise of supervisory authority over grand jury proceedings, the state argues that the court should not have assessed the entirety of the $4,000 in costs against it and that, as an equitable 14matter, it should, if it is to pay any costs at all, pay only the costs associated with transcribing the testimony of the three witnesses concerned in counsel’s motion to enjoin the grand jury proceedings.

For the following reasons, we agree with the state that the trial court erred in denying its motion to dismiss summarily defense counsel’s motion to enjoin the grand jury proceedings; therefore, the state should not have been cast with any costs for transcribing grand jury proceedings.

In Louisiana as elsewhere, grand juries traditionally have operated as an investigative body independent of both the prosecutor’s office and the courts. United States v. Williams, 504 U.S. 36, 47, 112 S.Ct. 1735, 1742, 118 L.Ed.2d 352 (1992)(“In fact, the whole theory of its function is that it belongs to no branch of the institutional Government, serving as a kind of buffer or referee between the Government and the people.”) (citations omitted). Thus, “[ajlthough the grand jury normally operates, of course, in the courthouse and under judicial auspices, its institutional relationship with the Judicial Branch has traditionally been, so to speak, at arm’s length. Judges’ direct involvement in the functioning of the grand jury has generally been confined to the constitutive one of calling the grand jurors together and administrating their oaths of office.” Id. A grand jury’s day-to-day functioning therefore “generally operates without the interference of a presiding judge.” Id.

The statutes pertaining to the grand jury, La.C.Cr.P. art. 431-438 and La.C.Cr.P. art. 533, do not address challenges made to grand jury proceedings based on prosecutorial misconduct which may compromise the role of the grand jury as an independent and autonomous investigative body.

In Board of Com’rs of Orleans Levee Dist. v. Connick, 94-3161 (La.3/9/95), 654 So.2d 1073, we addressed under what limited circumstances a state criminal | ¡^prosecution may be enjoined before the institution of criminal proceedings by bill of information or indictment. In that case, the Board of Commissioners for Orleans Levee District filed an action seeking declaratory and injunctive relief to prevent the District Attorney from investigating or indicting the operators of riverboat casinos. We affirmed the trial court’s ruling denying defendant’s motion for a preliminary injunction and the trial court’s ruling dissolving the temporary restraining order. We discussed the extraordinary circumstances required to justify the granting of such extraordinary relief:

Our jurisprudence admits of only a limited number of instances in which a state criminal prosecution may be enjoined prior to the institution of criminal proceedings in a court exercising criminal jurisdiction, i.e. prior to the filing of a misdemeanor affidavit or bill of information by the district attorney or the issuance of an indictment by a legally constituted grand jury. See La. Const. Art. I, § 15; LSA-C.Cr.P. Art. 382. These limitations upon the power of a court exercising civil jurisdiction arise from a respect for the constitutional prerogative of the district attorney, as well as an appreciation of the different purposes served by a trial court’s exercise of civil, as opposed to criminal, jurisdiction.
Article V, § 26 of the Louisiana Constitution of 1974 provides the district attorney with broad and sweeping powers as part and parcel of his role as the state’s prosecuting attorney. “A district attorney is a constitutional officer who serves in the judicial branch and exercises a portion of the sovereign power of the state within the district of his office.” Diaz, supra, 433 So.2d at 701. “The district attorney has entire charge and control of every criminal prosecution instituted or pending in his district and determines whom, when and how he shall prosecute.” State v. Perez, 464 So.2d 737, 744 (La.1985). Furthermore, “there is no provision of law that defines or limits the type of cases a district attorney may prosecute.” Id. See also State v. Sykes, 364 So.2d 1293, 1297 (La.1978). Finally, the jurisdiction of the district attorney to prosecute those who violate state criminal statutes is exclusive; it can only be constrained or curtailed when it operates to the prejudice of a contrary constitutional mandate, and even then only with due deference to the district attorney’s constitutional prerogative. City of Baton Rouge v. Short, 345 So.2d 37, 40 (La.1977).
We have in the past recognized only two particular scenarios in which the egregiousness of the threat to constitutionally protected interests warrants the staying of a district attorney’s investigation prior to the initiation of prosecution in a court of criminal jurisdiction. The first of these is ^presented by a case where the district attorney is attempting to prosecute a prospective defendant under a statute which is “manifestly unconstitutional.” Knights of Columbus v. Louisiana DPS, 548 So.2d 936, 938 (La.1989) (citing cases). A statute (or ordinance) is “manifestly unconstitutional” when it is invalid on its face, e.g. when the statute is unconstitutionally vague or over-broad. The drastic remedy of injunctive relief to restrain enforcement of such a statute is necessary because such a statute by its very existence threatens to “chill” the citizenry’s exercise of constitutionally protected speech and assembly. See Plaquemines Parish Comm’n Council v. Perez, 379 So.2d 1373, 1384-1385 (La.1980), citing Dombrowski v. Pfister, 380 U.S. 479, 85 S.Ct. 1116, 14 L.Ed.2d 22 (1965). Outside of the narrow context of “manifestly unconstitutional” statutes, however, “[tjhe proper forum for testing the constitutionality of the statute is by a motion to quash in a criminal prosecution if and when that occasion arises.” LaBauve v. Louisiana Wildlife and Fisheries Comm’n, 289 So.2d 150, 153 (La.1974).
The second situation in which we have approved a civil court’s enjoining a district attorney’s investigation arises when the district attorney abuses the powers of his office by subjecting an individual to a harassing investigation without any good faith belief that the individual has committed any crime. Compare In re Grand Jury Subpoenas Issued to Certain Members of Orleans Levee District, 95-KK-0042, 648 So.2d 864 (La.1996) (per curiam). The issuance of an injunction is warranted in such cases because “there [is] a federal right to be free of a bad faith prosecution.” Perez, supra, 379 So.2d at 1385 (footnote omitted), discussing Shaw v. Garrison, 467 F.2d 113 (5th Cir.1972), cert. denied, 409 U.S. 1024, 93 S.Ct. 467, 34 L.Ed.2d 317 (1972). A plaintiff who seeks to enjoin such “bad faith” investigations must show, at a minimum, that he is threatened with an investigation which is “unnecessarily abusive, harassing or illegal, and without any possibility of ultimate indictment supported by probable cause for prosecution.” Perez, supra, 379 So.2d at 1385.
In the absence of one of these threshold showings, however, a court exercising civil jurisdiction cannot restrain the district attorney from the exercise of his constitutional powers.

Board of Com’rs of Orleans Levee Dist., 654 So.2d at 1077-79; (footnotes omitted).

In the present case, the trial court found the allegations made in the motion by defense counsel would not have justified enjoining the grand jury investigation. Thus, these allegations were not so egregious as to pose a threat to constitutionally protected interests.

|7The comments made by the prosecutor in the presence of the grand jurors, while found improper by the district court, were not so prejudicial in terms of the grand jury’s traditional function that they created a grave risk of an indictment returned on the basis of any bias fostered against counsel. Given the nature of defense counsel’s complaint, the trial court erred in not sustaining the state’s objection to defense counsel’s motion to enjoin the pre-indictment grand jury investigative proceeding. By entertaining defense counsel’s motion, the trial court pierced the veil of grand jury secrecy by having the testimony transcribed as a prelude to intervening in the operations of that body for purposes of admonishing jurors as to what they should or should not consider in the prosecutor’s presentation to them, and did not adequately take into account that “the grand jury is an institution separate from the courts, over whose functioning the courts do not preside.... ” Williams, 504 U.S. at 47, 112 S.Ct. at 1742.

For the foregoing reasons, the judgment of the lower courts are reversed and set aside. This matter is remanded to the district court for further proceedings, if any are pending, consistent with the views expressed herein.

REVERSED AND REMANDED.

      . It is evident the complained of errors by the state in these pre-indictment grand jury proceedings are moot because that grand jury term has expired. We note the proper (or preferable) procedure to address those issues would have been by supervisory writs at the time the state’s objections to the defense motions were overruled. Because these serious issues were not brought timely before being rendered moot, we will not address the merits of these issues as this would constitute an impermissible advisory opinion. However, the issue of the propriety of the defense motions at the pre-indictment stage of the grand jury investigative proceedings will be considered in determining the appropriateness in casting the state with costs for transcribing the grand jury witnesses's testimony.

      . We reversed the trial court on an issue not relevant to the issue presently before us.


author: hWEIMER, Justice.

text:
    STATE of Louisiana v. Dan BRIGHT.
    Nos. 2002-KP-2793, 2003-KP-2796.
    Supreme Court of Louisiana.
    May 25, 2004.

      Emily M. Bolton, G. Benjamin Cohen, Clive Adrian Stafford Smith, New Orleans, Counsel for Applicant.
    Charles C. Foti, Jr., Attorney General, Eddie J. Jordan, Jr., District Atty., Battle Bell, IV, Valentin M. Solino, Counsel for Respondent.
    Sarah L. Ottinger, New Orleans, Counsel for amicus curiae Kathleen H. Norman.
    Lawrence C. Marshall, Stephen I. Singer, Counsel for amicus curiae Innocence Network.
    Robert S. Glass, Timothy A. Meche, New Orleans, for amicus curiae Louisiana Association/Criminal Defense I.
    Robert S. Glass, New Orleans, Virginia Sloan, Covington, for amicus curiae The Constitution Project.
   hWEIMER, Justice.

On application of defendant, Dan L. Bright, who is serving a life sentence for second degree murder, we granted a writ solely to determine whether the State suppressed material evidence regarding the criminal history of the prosecution’s key witness, Freddie Thompson, and, if so, whether defendant is entitled to a new trial. Based on the particular circumstances surrounding the fatal shooting, which include the fact there was no physical evidence, and the nature of Thompson’s testimony, which is the only evidence that served to convict, we resolve this fact-specific issue reversing the conviction, vacating the sentence, and remanding for a new trial.

PROCEDURAL HISTORY

In 1996, an Orleans Parish jury found the defendant, Dan L. Bright, guilty of first degree murder. In accord with the jury’s determination, the court imposed a sentence of death. On appeal, this court found the evidence insufficient to support the conviction of first degree murder and rendered a judgment of guilty of second degree murder. State v. Bright, 98-0398 (La.4/11/00), 776 So.2d 1134. The trial | ¡.court subsequently imposed a sentence of life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence.

In 2000, defendant filed an application for post-conviction relief, which the district court denied. The court of appeal denied writs, State v. Bright, 02-1276 (La.App. 4 Cir. 10/17/02), and defendant filed the first of two applications in this court. Meanwhile, defendant filed pleadings in federal district court seeking production of Federal Bureau of Investigation (FBI) materials pertaining to the investigation of the crime for which he was convicted. In March 2003, the federal district court granted relief and ordered the material produced. Shortly thereafter, in light of the availability of the FBI material and in response to a motion by defendant, this court issued an order allowing him to reopen proceedings in the Criminal District Court for Orleans Parish. That court denied defendant post-conviction relief, and the court of appeal denied writs. State v. Bright, 03-1238 (La.App. 4 Cir. 9/9/03). The second of defendant’s two applications followed.

Although defendant made five claims in his application, we granted a writ to consider the sole issue of whether the State suppressed material evidence as defendant alleges and, if so, whether defendant is entitled to a new trial.

| aFACTS

The defendant was convicted of and sentenced for the killing of Murray Barnes on January 29, 1995, which was Super Bowl Sunday. After the football game that evening, Barnes parked his truck directly across from Creola’s Bar located at 2904 Laussat Street, between Press and Monte-gut Streets in New Orleans, Louisiana. He was accompanied by his friend Kevin Singleton and his cousin Freddie Thompson, who remained in the truck while Barnes and Singleton entered the bar. Upon entering Creola’s Bar, Barnes discovered he had won $1,000.00 in the bar’s football pool. The barmaid handed him his winnings in two envelopes, each containing $500.00. In apparent good humor, Barnes tipped the barmaid and treated his friends to a round of drinks.

To put the issue before us in perspective, we repeat the narrative of facts from our previous opinion.

As Thompson waited in the truck, he noticed a woman and two men conversing at the corner of Laussat and Monte-gut, on the same side of the street as Creola’s, about a half block away. As Thompson watched, the two men moved to the middle of Laussat Street and began walking in his direction. They walked as far as Creola’s, then turned around and retraced their steps to the corner. Thompson observed that both men wore sweat suits with hoods, one grey and one blue. When the man dressed in grey passed nearer to the truck, Thompson made eye contact with him. About the time that the men returned to the corner, Singleton opened the front door of the bar and yelled to Thompson that Barnes had won and to come in for a drink. As Thompson was walking towards the bar, the woman who had been conversing at the corner with the two men approached Thompson and asked that he tell the driver of the truck that she wanted to see him. Thompson ignored her and proceeded to the bar. Inside the small establishment, Thompson saw the woman again. She had come in behind him, walked slowly around the room, and then left. Thompson thought it odd that she did not speak to Barnes, since she had just told Thompson to tell Barnes that she wanted to talk with him.
Shortly thereafter, Barnes, Thompson, and Singleton left the bar and walked to the truck. Thompson was entering the passenger side when he spotted the woman on Laussat on the other side of Montegut, walking away. He directed his cousin’s attention to her. Barnes looked and shouted, “Hey, Chris.” The woman paused, looked back, but then |4turned around and resumed walking away. Barnes continued around back of the vehicle to the driver’s side. Thompson and Singleton were in the cab of the vehicle and Barnes was about to open the driver’s door when the two men ran out of an alley and confronted him on the sidewalk.
Thompson recognized the assailants as the same two men he had seen earlier at the corner and walking in the middle of Laussat. The one in grey held a gun in his right hand. Just before the gunman started firing, Thompson heard Barnes exclaim, “What?” Singleton heard the gunman say one unintelligible word, to which Barnes replied, “What’s up with that?” The gunman fired his weapon and shot Barnes, who then ran around the back of his truck toward Creola’s and entered the bar through a side door. Thompson and Singleton, who were unharmed, ran after him. When Barnes ran toward the rear of his truck, the assailants took off in the opposite direction toward Montegut Street and turned right on to Montegut. As the assailants reached the corner, they fired two more shots in the air. Inside the bar, Barnes told the barmaid that he had been shot and to call the police. Barnes then collapsed.
Thompson and Singleton left the scene in the victim’s truck to alert family members.[] As a result, police parked in the spot where the victim’s truck had been at the time of the shooting. The first officers to arrive found the victim on his back on the floor of the bar, unconscious. Thompson and Singleton returned with Barnes’s aunt in time to see Barnes being carried out of the bar on a stretcher. They remained on the scene and gave statements to investigators. Thompson stated he could identify the shooter, as well as the woman. He described the shooter as 5'6" or 5'7" tall, light-skinned, weighing 140 pounds, and wearing a grey sweat suit with a hood. Singleton told police that he doubted he could identify anyone.
Barnes was shot three times. Two bullets hit his back in the upper torso region, and the third struck the back of his left arm. One bullet punctured a lung and ruptured an artery, precipitating substantial internal bleeding, unconsciousness, and ultimately death. Based on the trajectory of the bullets in Barnes’s body, the forensic pathologist who performed the autopsy stated that the wounds were consistent with a right-handed shooter[] standing behind the victim and slightly to the victim’s right.

Bright, 98-0398 at 3-5, 776 So.2d at 1137-1138.

An investigation produced only one of the two envelopes of Barnes’s winnings, and that envelope contained $440.00. This court has noted that the evidence at | ¡defendant’s trial did not foreclose the possibility that someone other than the two assailants took the missing envelope from Barnes either before or after the wounded and dying man reentered the bar. Bright, 98-0398 at 12, 776 So.2d at 1142. The murder weapon was never recovered. Although initially there were no leads as to the perpetrator’s identity, a New Orleans police detective eventually received information implicating Dan Bright, Christina Davis, and her cousin, Tracey Davis. • The detective compiled photographic arrays and displayed them to Thompson, who identified the defendant Bright as the shooter and Christina Davis as the woman who had spoken to him shortly before the shooting. He could not identify Tracey Davis. Christina Davis was arrested on February 20, 1995; the defendant surrendered to police on March 8, 1995.

DISCUSSION

In Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 1196-97, 10 L.Ed.2d 215 (1963), the United States Supreme Court held that suppression by the prosecution of evidence favorable to the accused after receiving a request for the evidence violates a defendant’s due process rights where the evidence is material either to guilt or punishment, without regard to the good or bad faith of the prosecution. For purposes of the State’s due process duty to disclose, no difference exists between exculpatory evidence and impeachment evidence. State v. Kemp, 00-2228, p. 7 (La.10/15/02), 828 So.2d 540, 545. The Brady rule encompasses evidence which impeaches the testimony of a witness when the reliability or credibility of that witness may determine guilt or innocence. United States v. Bagley, 473 U.S. 667, 676, 105 S.Ct. 3375, 3380, 87 L.Ed.2d 481 (1985); State v. Knapper, 579 So.2d 956, 959 (La.1991).

| (¡Nevertheless, it is important to note that Brady and its progeny do not establish a general rule of discoverability, and not every case in which it is discovered post-trial that favorable evidence was withheld by the State will result in a reversal of the conviction. A prosecutor does not breach any constitutional duty to disclose favorable evidence unless the “omission is of sufficient significance to result in the denial of the defendant’s right to a fair trial.” United States v. Agurs, 427 U.S. 97, 108, 96 S.Ct. 2392, 2400, 49 L.Ed.2d 342 (1976). For purposes of Brady's due process rule, a reviewing court determining materiality must ascertain:

not whether the defendant would more likely than not have received a different verdict with the evidence, but whether in its absence he received a fair trial, understood as a trial resulting in a verdict worthy of confidence. [Emphasis supplied.]

Kyles v. Whitley, 514 U.S. 419, 434, 115 S.Ct. 1555, 1566, 131 L.Ed.2d 490 (1995). See also, State v. Strickland, 94-0025, p. 38 (La.11/1/96), 683 So.2d 218, 234. Thus, the reviewing court does not put the withheld evidence to an outcome-determinative test in which it weighs the probabilities that the petitioner would have obtained an acquittal at trial or might do so at a second trial. Instead, a Brady violation occurs when the “evidentiary suppression ‘undermines confidence in the outcome of the trial.’ ” Kyles, 514 U.S. at 434, 115 S.Ct. at 1566 (quoting Bagley, 473 U.S. at 678, 105 S.Ct. at 3381).

At defendant’s trial, the State presented the testimony of the two men who were with the victim at the time of the shooting. Thompson, who had identified defendant and Christina Davis from a photographic line-up several weeks after the shooting, testified concerning the defendant’s identity as the shooter. Singleton described what occurred but could not identify anyone. Bright, 98-0398 at 3-8, 776 So.2d at 1137-40.

|7In support of an alibi defense, defendant called two witnesses who said defendant was around the corner from the scene at the time of the shooting. Bright, 98-0398 at 3-8, 776 So.2d at 1137-40. One of the witnesses claimed to have seen Tracey Davis fleeing the scene immediately after the shooting. In closing argument, the defense posited that Tracey Davis and his cousin committed the crime.

Significantly, the State used the criminal records of both defense witnesses to impeach their testimony. Shelita Christmas, the mother of defendant’s two children, testified that defendant was knocking at the gate of a friend’s home when shots rang out; she next saw two men running, rounding the corner at Laussat Street and passing by her as the men continued on Montegut Street. The State contended Christmas was unworthy of belief, in part, because she had a prior drug conviction. William “Yam” Thomas testified defendant was standing at the gate of the Thomas residence on Montegut Street when shots rang out in the neighborhood. He stated he was compelled to come forward to testify because “the wrong man g[ot] charged ... because I’m looking right at him [at the time of the shooting].” Bright, 98-0398 at 9, 776 So.2d at 1140. Thomas had a year-old charge for possession of heroin with intent to distribute pending at the time of defendant’s trial. The State also used Thomas’s prior convictions for theft and possession of stolen goods in 1959 and for illegal carrying of a weapon in 1976 to impeach his testimony.

The Brady issue in this case arises from the State’s suppression of the criminal history of Thompson, its star witness. As noted above, only Thompson, who acknowledged he had been drinking for many hours prior to the shooting, identified defendant. In addition, the identification came some weeks after the crime. This information was presented to the jury, but jurors did not learn that Thompson had a [ sprior conviction for simple burglary and was on parole at the time of the offense and at the time of his subsequent identification of defendant in the photographic lineup. The prosecution had responded “not entitled” to a pre-trial request by the defense for the production of rap sheets of the State’s witnesses. The State now admits this response was wrong and admits the evidence should have been disclosed.

Information about a witness’s convictions is admissible and can form an important source for impeachment of such witnesses. See, LSA-C.E. art. 609.1; see generally, State v. Tolbert, 03-0330 (La.6/27/03), 849 So.2d 32. The fact that Thompson was under the supervision of the Department of Public Safety and Corrections (“DOC”) at the time of the shooting and could have been subject to parole revocation for violation of the terms of his parole (by drinking, as he admitted doing), gave him the motivation to cooperate with law-enforcement authorities, motivation defendant had a right to reveal to the jurors. See, e.g., Davis v. Alaska, 415 U.S. 308, 318, 94 S.Ct. 1105, 1111, 39 L.Ed.2d 347 (1974) (Bias may arise from a witness’s vulnerable status as a probationer; the Sixth Amendment right to confrontation includes the right to cross-examine a prosecution witness concerning a possible source of bias.) The importance of such information can be heightened in a ease such as defendant’s, where only one witness — the felon whose record the State suppressed' — identified defendant. The only evidence relied on to convict defendant |3was Thompson’s testimony; there were no other witnesses, and there was absolutely no physical evidence.

Compounding the significance of the State’s failure to disclose is the fact that the State utilized the same type of impeachment evidence of prior convictions that was withheld from the defense. Defendant’s two alibi witnesses both “suffered a ... loss of credibility” when the State cross-examined them about their convictions. Bright, 09-0398 at 8-9, 796 So.2d at 1140. A second trial will place the case before a decision-maker informed of the material suppressed at the first trial. Thus, an informed decision-maker, in evaluating credibility, can consider the relative degrees of moral culpability exhibited by convictions for such things as drug offenses and possession of stolen goods as contrasted with a conviction for burglary and subsequent parole violations.

Defendant has shown that the State suppressed the criminal history of its main witness, the only witness to identify defendant in a case in which there exists no physical evidence. In this situation, the evidentiary suppression rises to a level such that we can have no confidence in the verdict and requires reversal. Kyles, 514 U.S. at 434, 115 S.Ct. at 1566. When the State’s case hinges on the testimony of one eyewitness, the Brady violation looms larger. In Agurs, 427 U.S. at 113, n. 21, 96 S.Ct. at 2402 n. 21, the Supreme Court quoted with approval an example from Comment, Brady v. Maryland and The Prosecutor’s Duty to Disclose, 40 U.Chi.L.Rev. 112, 125 n. 10 (1972):

If ... one of only two eyewitnesses to a crime had told the prosecutor that the defendant was definitely not its perpetrator and if this statement was not disclosed to the defense, no court would hesitate to reverse a conviction resting on the testimony of the other eyewitness. But if there were fifty eyewitnesses, forty-nine of whom identified the defendant, and the prosecutor neglected to reveal that the other, who was without his badly needed glasses on the misty evening of the crime, |inhad said that the criminal looked something like the defendant but he could not be sure as he had only had a brief glimpse, the result might well be different.

The State has conceded the prosecution failed to disclose before trial that Thompson, its only eyewitness to the victim’s murder who claimed he could identify defendant as the perpetrator, had a prior felony conviction. Nevertheless, the State argues that its failure to disclose the criminal history of its star witness does not rise to a level of materiality requiring reversal. We remain unconvinced by this argument, noting that nothing in the State’s opposition negatively affects the conclusion that the State committed an evidentiary suppression that undermines confidence in the outcome of the trial. Kyles v. Whitley, 514 U.S. at 434, 115 S.Ct. at 1566.

CONCLUSION

We conclude the State’s failure to disclose the criminal history of its key witness, Thompson, violated defendant’s due process rights and requires reversal under the rule of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) and progeny. Although the State now concedes the evidence of its key witness’s criminal record should have been revealed to the defense, we hasten to point out that a Brady analysis focuses on the harm to the defendant resulting from nondisclosure rather than on the willful misbehavior of the prosecutor. Agurs, 427 U.S. at 104, 96 S.Ct. at 2398 n. 10. The detriment to the defendant in the instant case cannot be discounted. After a careful review of the facts unique to this case, we can have no confidence in the verdict.

InThe sole witness to claim he could identify defendant as the shooter was Thompson, who spent the better part of the day of the crime consuming alcoholic beverages and thus was in de facto violation of his parole. At the time he identified the defendant as the shooter, Thompson remained on an extended parole. The specific facts of Thompson’s criminal record and the fact that he was still on parole in 1995 raise questions about the veracity of his trial testimony. To compound the detriment to the defendant, the State used the very type of evidence withheld from the defendant to effectively impeach the defendant’s witnesses.

Significantly, the only evidence that resulted in a conviction was Thompson’s testimony. The investigation of the shooting, which involved the FBI, as well as local authorities, failed to produce any physical evidence, such as the missing envelope of money, a gun, or DNA evidence, to connect defendant to the shooting.

The twofold aim of the law is that “guilt shall not escape or innocence suffer.” Berger v. United States, 295 U.S. 78, 88, 55 S.Ct. 629, 633, 79 L.Ed. 1314 (1935). Society remains at risk if the guilty remain at large. Finality is an important component of any legal proceeding. Endless delays and countless reviews undermine finality. However, finality must yield when those responsible for assuring compliance with the law do not follow the rules and it is determined that there can be no confidence in the verdict. Reversals should only occur when there can be no confidence in the verdict. This conviction, based on the facts of this case which include a failure to disclose what the State now admits is significant impeachment evidence, is not worthy of confidence and thus must be reversed.

WRIT GRANTED; CONVICTION AND SENTENCE VACATED; CASE REMANDED FOR NEW TRIAL.

      . Although not relevant to our determination, we note the reason for the FBI’s investigation of this local matter remains unexplained to this court.

      . The FBI initially responded to defendant's filings with a redacted version of a statement by a confidential informant, who stated another individual had “bragged” about committing the murder that Bright was in jail for committing. Ordering the FBI to provide defendant with an unredacted version (which named Tracey Davis as the individual who claimed to be the shooter), the federal court noted: "The failure by law enforcement agencies to disclose the statement before [Bright’s] murder trial raises the stakes of the public interest.... Whether Bright is or is not guilty, the failure of law enforcement to act as it was constitutionally obliged to do cannot be tolerated in a society that makes a fair and impartial trial a cornerstone of our liberty from government misconduct.”

      . The record reflects that Thompson, procured the truck keys from the wounded Barnes in order to leave the scene of the shooting before the police arrived.

      . A defense witness testified at trial that defendant is left-handed and that his left hand had been injured and was in a bandage or cast at the time of the shooting.

      . The rap sheet is confusing in that it states Thompson was “paroled” but also states he was arrested for “probation violation” and "probation” was revoked. We choose to refer to his "parole” in this opinion.

      . The statute setting out mandatory conditions of parole merely requires parolees to "[a]void injurious or vicious habits and places of disreputable or harmful character,” LSA-R.S. 15:574.4(H)(4)(d), but the standard form distributed to parolees by the Board of Parole requires inmates to "solemnly promise and agree” to “avoid injurious or vicious habits and places of harmful disreputable character, which includes the ingestion of alcoholic beverages and/or frequenting establishments where alcohol is the primary commodity served or sold.”

      . We hasten to caution that the determination of materiality requiring reversal of a conviction when a Brady violation occurs is an "inevitably imprecise standard.” Agurs, 427 U.S. at 108, 96 S.Ct. at 2400. We have pre-termitted the other issues raised by defendant. He argues there is evidence concerning his actual innocence. Such evidence can impact a decision that the Brady violation is of a nature that requires reversal because the determination of materiality for Brady purposes is necessarily fact specific. Given our decision to reverse, it is not necessary to evaluate this evidence.