Discovery

What is the name of your state (only U.S. law)? Hawaii
Speeding citation - Judgment for the State in my TBD - requested Trial de novo (granted)- requested discovery for the pertinent and usual information from the DA - received a letter stating:
"I am in receipt of your request for discovery and hereby advise that although the rules of penal procedure do not require discovery in violation cases, the office of the prosecutor does routinely provide some information, as follows".
The only info I received was a copy of the front and back of my citation (which was one of the items requested). Other requested items had a note the stated: "Not being provided at this time in the absence of a motion and order to compel".
When I picked up discovery item from the DA's assistant, included was a request from the state for discovery from me. It referenced Rule 16 of the Hawaii Rules of Penal Procedure. Is it unethical/devious/a violation/whatever for them to advise me that discovery is not required but to ask for the same?
Question is, can I make that motion verbally at my trial (28 Sept) to the Judge or should I draft a compel motion and submit it to the court clerk asap.

Maybe try again

IN THE SUPREME COURT OF THE STATE OF HAWAI!I
---o0o---
STATE OF HAWAI!I, Respondent-Plaintiff-Appellee
vs.
ABIYE ASSAYE, Petitioner-Defendant-Appellant
NO. 29078


2010 Haw. LEXIS 47,*
STATE OF HAWAI'I, Respondent/Plaintiff-Appellee, v. ZACHARIAH I. FITZWA
Petitioner/Defendant-Appellant.
NO. 28584
SUPREME COURT OF HAWAI'I
2010 Haw. LEXIS 47
March 3, 2010, Decided

Two cases you should read & be prepared to file objections in court during cops testimony....read them (google scholar, etc) & any ? post back

millerlite said:

What is the name of your state (only U.S. law)? Hawaii
Speeding citation - Judgment for the State in my TBD - requested Trial de novo requested discovery for the pertinent and usual information from the DA - received a letter stating:
"I am in receipt of your request for discovery and hereby advise that although the rules of penal procedure do not require discovery in violation cases, the office of the prosecutor does routinely provide some information, as follows".
The only info I received was a copy of the front and back of my citation (which was one of the items requested). Other requested items had a note the stated: "Not being provided at this time in the absence of a motion and order to compel".
When I picked up discovery item from the DA's assistant, included was a request from the state for discovery from me. It referenced Rule 16 of the Hawaii Rules of Penal Procedure. Is it unethical/devious/a violation/whatever for them to advise me that discovery is not required but to ask for the same?
Question is, can I make that motion verbally at my trial (28 Sept) to the Judge or should I draft a compel motion and submit it to the court clerk asap.

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I would call them and ask if they have anything that they did not submit but that you asked for. Their answer to you is totally unprofessional. They do not object to any of the items you asked for (see if they need to file an objection with you and the clerk), do not tell you any reason for the withholding, but simply tell you to file a motion to compel. Call these goofs back on th phone, and ask them if they have anything else to provide you before trial. If they say no & want to admit any evidence that you asked for but that they have not provided (and said they would not have anything other than what they did provide you) then you have another objection to the admittance of the evidence into the trial record (in addition to any other objectionable reasons for the document). You generally cannot file a compel motion w/o trying to resolve the issue with the opposing party anyway. File the motion and state that they have stated no objections to providing the documents or things within the time frame allowed for a discovery response. And if you lose this motion or objection at court (if they say they have no docs, then do not file the compel motion) and try to get it introduced I would ask for an immediate adjournment to consider the newly discovered documents & make them come back at another date (cop too).

millerlite said:

"I am in receipt of your request for discovery and hereby advise that although the rules of penal procedure do not require discovery in violation cases, the office of the prosecutor does routinely provide some information, as follows".

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They don't have to provide you with anything, as per the referenced Rule 16 of the Hawaii Rules of Penal Procedure:


(d) Discretionary disclosure. Upon a showing of materiality and if the request is reasonable, the court in its discretion may require disclosure as provided for in this Rule 16 in cases other than those in which the defendant is charged with a felony, but not in cases involving violations.

millerlite said:

When I picked up discovery item from the DA's assistant, included was a request from the state for discovery from me. It referenced Rule 16 of the Hawaii Rules of Penal Procedure. Is it unethical/devious/a violation/whatever for them to advise me that discovery is not required but to ask for the same?

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And in what way are they requesting discovery from you? I think you misunderstood something. If you read Rule 16 you will see a section right before what I quoted above. It requires the defendant to provide certain information, but that is all irrelevant in a traffic case. This is the section:

(c) Disclosure by the defendant.

(1) SUBMISSION TO TESTS, EXAMINATIONS OR INSPECTIONS. Upon written request of the prosecutor, the court may require the defendant: (i) to perform reasonable acts or undergo reasonable tests for purposes of identification; and (ii) to submit to reasonable physical or medical
inspection or examination of the defendant's body. Reasonable notice of the time and place for such tests, inspections or examinations shall be given by the prosecutor to the defendant and the defendant's counsel who shall have the right to be present.

(2) DISCLOSURE OF MATERIALS AND INFORMATION. The defendant shall disclose to the prosecutor the following material and information within the defendant's possession or control: (i) the names and last known addresses of persons whom the defendant intends to call as witnesses, in the presentation of the evidence in chief, together with their relevant written or recorded statements, provided that discovery of alibi witnesses is governed by Rule 12.1, and provided further that statements recorded by the defendant's counsel shall not be subject to disclosure; (ii) any reports or statements of experts, including results of physical or mental examinations and of scientific tests, experiments or comparisons, which the defendant intends to introduce as evidence at the trial or which were prepared by a witness whom the defendant intends to call at the trial when the results or reports relate to that witness' testimony; (iii) any books, papers, documents, photographs, or tangible objects which the defendant intends to introduce as evidence at the trial.

(3) DISCLOSURE OF DEFENSES. The court may require that the prosecutor be informed of the nature of any defense which defense counsel intends to use at trial; provided, that the defense of alibi is governed by Rule 12.1.

SuperLitigator said:

Two cases you should read & be prepared to file objections in court during cops testimony....read them (google scholar, etc) & any ? post back

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Why don't you provide a brief synopsis of each case for us.

SuperLitigator said:

Their answer to you is totally unprofessional. They do not object to any of the items you asked for (see if they need to file an objection with you and the clerk), do not tell you any reason for the withholding, but simply tell you to file a motion to compel. Call these goofs back on th phone, and ask them if they have anything else to provide you before trial.

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No, I think you're the goof.

Tell us, prior to posting do you bother to read about anything you're posting about? Or are you intimately familiar with Hawaii laws?

You are obviously speaking from emotion and fantasy, not from facts. Read the law, it's not that hard for a Super Litigator to understand.

Millerlite: SuperLitigator is a nuisance and knows little about what he speaks of, if anything at all. He is known here for providing useless and incorrect information.

From what I have read of the laws in your state, you haven't got much of a leg to stand on - as I read the statute the court has no discretion in violation cases and cannot compel the prosecution to provide you with anything.

HighwayMan said:

No, I think you're the goof.

Tell us, prior to posting do you bother to read about anything you're posting about? Or are you intimately familiar with Hawaii laws?

You are obviously speaking from emotion and fantasy, not from facts. Read the law, it's not that hard for a Super Litigator to understand.

Millerlite: SuperLitigator is a nuisance and knows little about what he speaks of, if anything at all. He is known here for providing useless and incorrect information.

From what I have read of the laws in your state, you haven't got much of a leg to stand on - as I read the statute the court has no discretion in violation cases and cannot compel the prosecution to provide you with anything.

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Once again, you give bad advice ... are you saying that people should be try to resolve discovery issues between the two parties? A motion to compel is not required for a defendant to object to evidence .. if the prosecution says they do not have any documents (beyond what they give you) what makes you think they have the right to attempt to include non-disclosed documents that were asked for? This is up to a judge to rule on but it is a proper objection. You think its the wild wild west show in court (ooh, look at what we have now!) - uh, no it is not. I would be willing to look at any case law you can post here; I am opened minded but w/o futher I stand by my advice.

SuperLitigator, regarding your post #3. I read the cases you cited and I have questions:

1. What exactly are these cases about?

2. Why should millerlite read them?

Thanks.

HighwayMan said:

No, I think you're the goof.

Tell us, prior to posting do you bother to read about anything you're posting about? Or are you intimately familiar with Hawaii laws?

You are obviously speaking from emotion and fantasy, not from facts. Read the law, it's not that hard for a Super Litigator to understand.

Millerlite: SuperLitigator is a nuisance and knows little about what he speaks of, if anything at all. He is known here for providing useless and incorrect information.

From what I have read of the laws in your state, you haven't got much of a leg to stand on - as I read the statute the court has no discretion in violation cases and cannot compel the prosecution to provide you with anything.

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I would tell you where your thoughts come from but this is an open forum where children may be reading. Stop your hate, I know you are a cop & this is what is scary.

Did you completely miss my questions to you, SuperLitigator?

SuperLitigator said:

Once again, you give bad advice ...

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Once again, eh?

SuperLitigator said:

if the prosecution says they do not have any documents (beyond what they give you) what makes you think they have the right to attempt to include non-disclosed documents that were asked for? This is up to a judge to rule on but it is a proper objection.

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It is not a proper objection. Read the excerpts of the law I posted which you previously ignored. There is no discovery in violation cases, and it's up to the judge in misdemeanor cases. The prosecution didn't say that they didn't have the documents. they said they are not provided.

SuperLitigator said:

You think its the wild wild west show in court (ooh, look at what we have now!) - uh, no it is not

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No, that's what YOU seem to think - apparently totally disregarding the law. It's right there in black and white. Read it.

SuperLitigator said:

I would be willing to look at any case law you can post here; I am opened minded but w/o futher I stand by my advice.

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You're open minded but refuse to acknowledge that there is legally no remedy for the OP here. Case law has nothing to do with this.

quincy said:

Did you completely miss my questions to you, SuperLitigator?

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He missed mine as well.

His sight is very selective.

Aloha, Hey guys I don't mean to start any arguments....I did read those case laws and did find some interesting things but nothing pertinent. Thanks for the links.

HighwayMan -they requested discovery with a form they drafted that references me to provide them with items mentioned in Rule 16. After reading Rule 16 many times, I also see/understand that its not required as my case is just a violation - not a felony. So discovery is not required by either party?

On the form that was sent from the court (after a judgment for the State in my TBD) that if/when a trial is requested (I did) that the prosecutor and witnesses will (will - not may) be present. Am I correct that the witness is the citing officer? Since the letter/form says witnesses will be present, is he required to show up (which I want)? And if he doesn't show,we all know what the next motion would be.....

Nah, you didn't start any arguments. SuperLitigator is a known problem here.

I would assume that, yes, the officer is the witness. Therefore he should be there. If not, then the people won't be ready to prosecute.