Assuming that evidence has been retained (or retained and tested), the duty to disclose determines what must be released to the other party and when that release must occur. In cases in which evidence (the physical evidence and/or the test result) is exculpatory, disclosure of its existence is mandatory under the U.S. Constitution. ⁶ Evidence is exculpatory if it "would tend to exculpate him or reduce the penalty..." ⁷

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