What form to use to request discovery?

[JIMinCA]

But, what you fail to understand is that most traffic citations are sent ONLY to the court - not to the DA (per statute, not choice).

What you fail to understand is that the DA is still the prosecutor and still carries all of the responsibilities of that role.... including discovery.

Asking the DA for discovery on a citation is about the same as sending you a request for discovery on a traffic cite issued in your county of residence and asking YOU to provide the information ... you don't have it and you don't know who or what issued it.

Not a legitimate analogy since I am not a prosecutor and I have no statutory and case law obligation to search for and provide discovery... but the DA does!!!

The DA's office is under no obligation to assign a functionary to call every law enforcement in the area and ask about the citation ... "Did you cite John Smith?"

The DA's office has exactly that obligation!!! It is part of the burden of prosecution!!! The DA doesn't get to escape that burden just because it is inconvenient. By your argument... there is NO ONE who carries the burden of prosecution. That is simply ridiculous.

The practice by the Los Angeles and the San Diego DA (as well as our local DA offices) is to pass on the request to the court (with a notice, as I understand, directing the agencies in possession of the requested info to comply). The court will then pass along the request to the agencies that are in possession of the information. Typically, the agencies comply if they have the information requested. If there is no compliance, the court can compel discovery ... which, again per statute, is supposed to be done prior to an adverse ruling for failing to provide the info.

And that is all the DA has to do... however, the DA typically fails to make even that small effort to preserve the rights of an individual who requests discovery. To me, that is just arrogant.

Certainly, you can try to argue a lack of compliance by the DA but that nasty "IF" gets in the way. And, you can try to argue a lack of prosecution. While your experience may be different, I have never seen or heard of those arguments succeeding in practice ... I will venture to guess that somewhere at some time they have, but by and large, I doubt it.

And what statute or case law reference do you base your opinion on? I have been pretty clear about legal references that support my opinion.

Anyway, it's all yours, Jim - have at it. Just be forewarned, Coffeebean, that these things don't always work the way that they are presented.

- Carl

You are right, it doesn't always work out. Many times the Courts simply ignore the law in a blind assumption that the alleged traffic violator is guilty and has no rights. However, that's what the appellate courts are for. I guess it is hard for a guy who is part of the system to see how the system is flawed.

Bottom line is... if no discovery is produced, you can argue lack of prosecution. If that is denied, you will be no worse off than you were without the argument.

 

[coffeebean]

Guys, I admire your passion, but PLEASE let's not start this discussion again. That discussion caused my previous thread to be closed.

So, please let's stick to the situation of me having to appear on court next monday.

I called the court and they said that if I claim "not guilty" they will set a date for me to appear again and they will supinar the office to show up on that date.

So, Jim, you say that that's when I can use the lack of discovery as grounds for a dismissal.
Could I do that on monday, and just take care of it, even better with the officer not being present?

Or

Could I ask to defend myself through a letter?

Thanks,

 

[JIMinCA]

You are going for an arraignment. You will ONLY plead not guilty. You will NOT discuss your case with the court any further.

You can request a trial by written declaration if you like.

 

[Hey There]

The Ball is in your court

2-9-08

coffeebean.

Arraignment.

At arraignment the cited driver enters his plea. He is given a court date for trial.

From Your Post.

When time that I went to court, everybody that pleaded not guilty had to stay until the whole thing was over and then each one did their defense. There was really not another date for trial. But I might be wrong. It was also in San Diego.

AT Arraignment SOME COURTS offer(an offer the driver should NOT agree to.)a Summary Trial or Informal Hearing where the driver presents his case without the officer being present.
A trial conducted at an Arraignment can only be held IF the driver agrees to it where it is almost a sure thing that the driver will end up being found guilty because he will be unable to cross-examine the officer. The possibility of the driver having his case dismissed because the officer failed to show at trial, or because he wasn't granted a speedy trial , or because he could launch an effective defence by crooss-examination of the officer disappears. GONE.
********************************************************
The driver in order to conduct a proper defence should KEEP his right to a trial WITH the officer present.The judge or traffic referee might also request that the driver waive his right to a speedy trial at arraignment.
The driver is NOT required to waive his right to a speedy trial

The driver should be aware that when he appears in court HE is the ONLY one interested in having his case dismissed. The officer, if he appears in court, is there to prove that the driver violated a Vehicle Code. Without the District Attorney being required to be at traffic ticket trials the driver has to be aware that many judges assume the role of the District Attorney rather than the neutral position they are supposed to retain in court.(Reference-a book published by NOLO, Fight Your Ticket & Win in Ca.)

At Arraignment according to the same book, if Discovery hasn't been provided, the driver should request a pretrial hearing DATE for a discovery motion.(Require Discovery be provided or sanctions imposed.)
This requires another court appearance as well as preparing a written request to dismiss, OR not allow the officer's evidence in court ,OR that discovery be provided and even money paid to the defendant. As JIMinCA. states dismissal has occurred in all cases he has seen when Discovery wasn't provided. Hopefully this will happen with yours.
A court clerk should be able to tell you the time frame in which a Trial By Declaration can be filed and supply you with the proper form and instructions if you decide to do this.
Let us know how your appearance at arraignment goes.

Best Regards,
Hey There

 

[JIMinCA]

Hey there,

Outstanding post!! I have never been in court in San Diego and I have never seen the court make the generous offer of allowing a Defendant to waive so many of his constitutional rights at one time!! What a great state!!

I agree with all you said, with one exception. The Pretrial Hearing is a bit formal for traffic court IMHO. I have seen cases where the Defendant walks in cold with the Discovery argument and the judge simply continues the case and orders the Discovery (which is ignored). In effect, the trial became a Pretrial Hearing.

A simpler way is to send in a Motion for Court Order to order the DA to produce the Discovery. The DA should get a copy of this mailed to him as well. Once the motion has been made, the Court is now put on notice that the you are serious about the Discovery Request. Each time I have seen this done, the Court either ignored the motion or they set a hearing date to coincide with the ticket trial (doesn't make much sense, though).

Once the motion has been filed, the Defendant can simply wait until trial. If no action has been taken, the Defendant should demand that the Court rule on his motion before the ticket trial begins. If the Court is so absolutely blind to justice as to ignore this (and some courts are), then you are building a rock solid case for appeal.


I know this all seems like a lot of work for a traffic ticket... but to me it is about much more than that. It is about the checks and balances that prevent our Government from trampling our rights. It is about remembering that justice is more important that convenience. The Courts have already become quite willing to squash your rights and ignore the law in most traffic cases. Then, that scurge moves into misdemeanor and non-violent felony cases... etc. Many people on here say things like "the effort is not worth it because it is only a couple hundred bucks". Is that how cheap we are willing to sell our justice system off for? How about if the punishment will be six months of probation... or 10 days in jail? At what point should we say that we will NOT allow ourselves to be illegally convicted? Personally, I practice a zero tollerence philosophy when it comes to relinquishing my rights which were so bravely fought for by so many of our forefathers.

 

[coffeebean]

JimCA, HeyThere and others,
thanks once more for helping.

So, I was in court today to appear before a judge and this is how it went down:
The judge was a big joker, joking around and talking about irrelevant things with the people.
When I was called, he started reading and said "so you were doing 80mph on the I-22 and you can't go to driving school again, what do you have to say?"

I said "I am not guilty your honor"

He had a suprise face and went to joke about it "How come you were not doing 80, in the 22, in the morning? It doesn't matter if it was 80, were you not going above 65?"

I said "I don't believe I was" , and he continues to joke some more "When I was on the 22 last time there is no way I could drive at 65, if I were to drive at 65 I would get thrown out of the road" And the whole court laughed.

He also asked "How do you know you weren't speeding?" and I responded that I knew because I watch the speedometer.

Anyway, he said he would set a date for trial, and I asked if I could request a TWD, and he said " look, if you want to go for trial on this, you should at least come in" , but I insisted "I can request TWD right?" and he said "yes yes you can"

So, he set a date for trial on march 10, and I what I understood is that I could send a declaration before that date. I am not sure how it works now.

What do you guys suggest? And should I do that motion to court order as suggested by HeyThere?

One more time, I really appreciate your help and I hope you guys continue helping me.

Have a great week!

 

[JIMinCA]

As long as it has been more than 15 days since you served the DA with the discovery request, you can make a motion to the court for an order requiring prosecution to produce the discovery. It certainly is a good idea to do this, but not required.

I'm really surprised to hear that the Judge was asking you those questions. He was dangerously close to having you testify at arraignment without waiving your right not to testify. Furthermore, he was certainly blurring the line that exists between judge and prosecutor. If what you are saying is true, this guy doesn't have a very good sense of appropriate behaviour.

 

[coffeebean]

JimCA,

Could you point me to somewhere I can find a good template for a "motion to the court order"?

I already sent the request. So I guess that what you are saying is that if I also send a motion and they don't respond, makes my case for a dismissal even stronger. Right?

And what do you think of the idea of doing the trial by written declaration? That way I would avoid going to court and having the judge and officer tryign to trick me into admitting guilt.

Thanks

 

[coffeebean]

Hi,
I imagine it's a good idea of I act fast now that I have a court date. Hopefully I will hear from you soon.
Thanks

 

[JIMinCA]

JimCA,

Could you point me to somewhere I can find a good template for a "motion to the court order"?

I already sent the request. So I guess that what you are saying is that if I also send a motion and they don't respond, makes my case for a dismissal even stronger. Right?

And what do you think of the idea of doing the trial by written declaration? That way I would avoid going to court and having the judge and officer tryign to trick me into admitting guilt.

Thanks

I have simply used the same form you used for the discovery request. I simply changed the heading from REQUEST FOR DISCOVERY to MOTION FOR COURT ORDER. Then, simply discuss what it is you want in the body.

TBWD is never a BAD idea... as it simply gives you one extra bite at the apple. If the cop doesn't submit a statement, then your case will be dismissed. However, I have seen many cases where the judges simply rubber stamp a TBWD as "guilty" without giving due consideration to the arguments presented.

By the way... the cop CANNOT "trick you into admitting guilt". The cop cannot ask you ANY questions. He is there as a witness. Nothing more... nothing less. The judge CAN ask you questions (only if you decide to testify)... but he is cautioned not to cross the line between judiciary and prosecutor. If you think the prosecution has not made its case, then you can just ask for a dismissal without testifying at all. You always have the right to NOT testify... but once you give it up... it's gone.

 

[coffeebean]

Thank you Jim,
I will do that.

My fear about going personally to trial is that Judge might feel pressured not to dismiss the ticket since there is a bunch load of other people watching the trial. Judge might not want to let other people know that there is such a loophole in the system.

If I do the TBWD and judge simply stamps guilty, could I appeal?

 

[JIMinCA]

Thank you Jim,
I will do that.

My fear about going personally to trial is that Judge might feel pressured not to dismiss the ticket since there is a bunch load of other people watching the trial. Judge might not want to let other people know that there is such a loophole in the system.

If I do the TBWD and judge simply stamps guilty, could I appeal?

No... you don't appeal. You have to request a Trial De Novo (a new trial). The new trial will be a court room trial. So, basically, you get two bites at the apple.

As far as your fear that the judge will be swayed by the presence of people... you are overthinking things WAY too much.

 

[coffeebean]

Thanks.

Should the motion be served to the DA or the court?

Thanks

 

[JIMinCA]

The motion for requesting the court order should go to the court with a copy to the DA.

 

[coffeebean]

So, if I understand this right. The motion is a request that I send to court, so that court sends a court order to DA to produce discovery.

So, do you think that even doing that it's still unlikely that they will be able to produce discovery until my trial?

thanks