Discovery Discussion

[JIMinCA]

What is the name of your state (only U.S. law)? CA

Hey There and I have been having a discussion about discovery in CA via PM's. This concerns traffic infractions. I would really like to get some opinions from others... especially Carl.

Most people are of the opinion that Discovery requests must be sent to the ticket issuing agency (i.e. CHP) instead of the prosecuting attorney. My opinion is that the cops are NOT required to and do not provide discovery. They may provide information... but it is NOT discovery. Therefore, as Hey There discovered, some agencies actually CHARGE $$$ for discovery items!!! Since this is informational and not discovery, my position is that this is perfectly legal. They can also omit, alter, or do anything else they want... since it is NOT discovery.

The penal code is clear that the prosecuting attorney has the burden of providing discovery. Nowhere in any law, code, rule, etc... does it say that a cop must provide discovery. Therefore, what a cop would provide IS NOT discovery. The prosecutors, with the complicity of the courts, have convinced the public that discovery is the burden of the cops in traffic infractions. I am suggesting that every case where the prosecutor does not provide discover where requested, should be dismissed. I also believe that it is about time for an appellate court decision to clarify this issue.

Opinions???

[CdwJava]

I think my position is pretty well known. And I think Hey There is falling back on the common sense that results from a reading of PC 1054.1, to wit ...

1054.1. The prosecuting attorney shall disclose to the defendant or
his or her attorney all of the following materials and information,
IF it is in the possession of the prosecuting attorney or if the
prosecuting attorney knows it to be in the possession of the
investigating agencies:

With the inclusion of the word "if" in the section, it provides for a conditional situation ... provided the DA is in possession of the information of they know it to be in the possession of the investigating agency, then they must provide it. However, as CA state law only requires that a notice to appear be filed with the magistrate (the court), there is no requirement that the DA be in the loop at all. Indeed, this is the case with most counties in the state - from the large and grand such as Los Angeles, to the tiny.

So, if the DA does not have the discovery material and cannot know it to be in the possession of the investigating agency, per PC 1054.1 they would not be required to provide the information.

To provide for the "spirit", or, "fair import", of the law (which is what CA law is geared towards (see PC 4) as opposed to the common, or, statutory law) many DAs offices forward these requests either to the agency involved (if they have some idea) or to the court who will then, presumably, pass the request on to the agency. I know that the agencies I have worked for will honor those passed on requests ... whether we must or not is debatable.

This may sometimes result in a failure to receive the discovery items in question because, as previously mentioned, the agency is no necessarily compelled to provide this information through informal discovery. Thus, it can become incumbent upon the defendant to direct the court to compel discovery from the agency. I am afraid I do not have the section at the moment (and I have to run) but I recall a section concerning discovery that allowed the court to provide sanctions only after the other options have been exhausted ... including providing a reasonable period for the agency to provide such discovery.

- Carl

[JIMinCA]

Sorry Carl, I just don't think your position holds any water. First, there are several cases that speak of the DUTY a prosecutor has to search for discovery that is in the posession of any state agency. It doesn't limit the requirements of discovery to the things that happen to be lying on the prosecutor's desk.

Also, the things that a person would ask for in discovery would be things like: officer's notes, radar calibration records, training certificates and speed surveys. These are all things that must be available at trial anyway. So, if a prosecutor was to use that lame argument of "it wasn't in my possession", when ignoring the discovery request, then he simply would not be able to use it at trial. Do you think you could win at trial with none of those things???

I had a case recently where I was ticketed for pulling a trailer and not being in the right hand lane (I was passing a slow moving vehicle). I asked for discovery and was ignored. I filed a motion with the court asking to compel the prosecutor to produce discovery and the court ignored me. At trial, I raised the issue and the court asked me why I didn't file the request with the CHP. I told the court I would have no way of knowing that was necessary, because it is not a requirement of any law, code, rule, etc. However, the penal code is quite clear that discovery IS a burden of the prosecutor. The judge simply told me that he was overruling my motion to dismiss because I should have filed the request with CHP anyway.

Now seriously.... this is just a judge who is plainly stupid. However, his stupidity was only topped by mine when I was filing the opening brief of my appeal and I forgot to include the proof of service for the trial judge in my package. I was notified of the deficiency a few days after the cutoff. So, I screwed up the appeal and I lost the opportunity to make a precedent setting case. However, that doesn't change how the courts are simply wrong about the way they ignore the law.

I am interested in working with someone who has a good case for appeal. I will be much more diligent not to let a stupid administrative error screw thing up the next time. But I am really concerned by so many public officials (including you, Carl) who are willing to use a perverted interpretation of the law as justification to screw people out of their rights. And, the reason this is so prevelant, is because so few people would challenge the bad rulings.

Tell me where I am wrong...

[CdwJava]

Originally Posted by JIMinCA

Sorry Carl, I just don't think your position holds any water. First, there are several cases that speak of the DUTY a prosecutor has to search for discovery that is in the posession of any state agency. It doesn't limit the requirements of discovery to the things that happen to be lying on the prosecutor's desk.

I think you might be reading more into the decisions than might be there. The statute is pretty clear. If they wanted to mandate the DA be responsible for all traffic prosecutions, they would change state law to mandate that at least a copy be filed with the DA instead of just the court, and they would remove the conditional language of 1054.1. If it were an absolute requirement, why make it conditional? It would be pointless.

So, if a prosecutor was to use that lame argument of "it wasn't in my possession", when ignoring the discovery request, then he simply would not be able to use it at trial. Do you think you could win at trial with none of those things???

But the prosecutor is not AT a traffic court trial. If the state has to provide certain things such as a speed survey at trial, and it fails to establish that the speed is prim and proper, then the state loses anyway.

I had a case recently where I was ticketed for pulling a trailer and not being in the right hand lane (I was passing a slow moving vehicle). I asked for discovery and was ignored. I filed a motion with the court asking to compel the prosecutor to produce discovery and the court ignored me. At trial, I raised the issue and the court asked me why I didn't file the request with the CHP. I told the court I would have no way of knowing that was necessary, because it is not a requirement of any law, code, rule, etc. However, the penal code is quite clear that discovery IS a burden of the prosecutor. The judge simply told me that he was overruling my motion to dismiss because I should have filed the request with CHP anyway.

He was interpreting the law as it was written, and understood that the law does not require the DA to be part of the traffic court process. You could have requested that the court compel discovery from the CHP as is permitted under the law.

But I am really concerned by so many public officials (including you, Carl) who are willing to use a perverted interpretation of the law as justification to screw people out of their rights. And, the reason this is so prevelant, is because so few people would challenge the bad rulings.

Horse hockey, Jim. I'm not here to screw with anyone's rights, and neither is anyone I know.

The section is conditional. The word "if" does not mean "shall" no matter how you want to twist it. If you want to legislate for a change in state law mandating the DA be part of traffic trials, go ahead. In the meantime, keep in mind that we are legally required only to file the cite with the court, and the DA is only responsible for the information he is in possession of or knows the investigating agency to be in possession of.

The learned legal scholars of this state just don't happen to agree with you ... frankly, I'd side with the people who do this every day and have been to years of law school over any of us lay people. And if this was such a clear issue as you maintain, I am flabbergasted that the defense bar has not seen fit to make this another magic pill for a defense ... if it was a viable defense, these guys would be winning everywhere.

And if you are going to be insulting and attribute foul motives to anyone who disagrees with you, why in the Hell did you even start a thread asking for opinions when all you intend to do is insult people? Either you want to hear the opinions, or you do not ... if you only want to spout your own interpretations, that's fine - but don't ask for dissenting opinions, if that is the case.

- Carl

[JIMinCA]

Originally Posted by CdwJava

I think you might be reading more into the decisions than might be there. The statute is pretty clear. If they wanted to mandate the DA be responsible for all traffic prosecutions, they would change state law to mandate that at least a copy be filed with the DA instead of just the court, and they would remove the conditional language of 1054.1. If it were an absolute requirement, why make it conditional? It would be pointless.

I don't think I am reading anything into the decisions. I am at work now, so when I get home I'll post an example of what I mean.

But the prosecutor is not AT a traffic court trial. If the state has to provide certain things such as a speed survey at trial, and it fails to establish that the speed is prim and proper, then the state loses anyway.

Once again, you are missing my point. In order to prepare a defense, a defendant has a right to see evidence ahead of time. If he asks for it in a discovery request and is ignored, are you suggesting that the defendant should have no right to view the evidence before trial???

He was interpreting the law as it was written, and understood that the law does not require the DA to be part of the traffic court process. You could have requested that the court compel discovery from the CHP as is permitted under the law.

You are absolutely wrong. There is NO LAW that says the DA is not required to be part of the traffic court process (please show me the law if I am wrong). There is case law that says the absence of a prosecutor is not a violation of a defendants rights to due process... but these decisions say absolutely NOTHING about a prosecutor being relieved of his responsibilities. Are you suggesting that in traffic cases, there is no prosecution????

Furthermore, the judge in my case did NOT suggest that the DA only provide discovery IF he had it.... he said very clearly that he was denying my motion because I did not serve it on the CHP. Please show me the law he was interpreting as it was written.

Horse hockey, Jim. I'm not here to screw with anyone's rights, and neither is anyone I know.

Wow... calm down big fella.... I am not suggesting that you are intentionally screwing with anyone's rights... I am suggesting that you and many others simply are far too accepting of an inappropriate interpretation of the law because you have a bias towards prosecution. As a cop, I understand your bias... but when the courts show the same bias, that is a slap in the face to our entire judicial process.

The section is conditional. The word "if" does not mean "shall" no matter how you want to twist it. If you want to legislate for a change in state law mandating the DA be part of traffic trials, go ahead. In the meantime, keep in mind that we are legally required only to file the cite with the court, and the DA is only responsible for the information he is in possession of or knows the investigating agency to be in possession of.

First, in the context of the way the law is written, the word "shall" would make no sense. Second, the prosecution is mandated by case law to search for discovery that may be in possession of the state or the police agencies.

The learned legal scholars of this state just don't happen to agree with you ... frankly, I'd side with the people who do this every day and have been to years of law school over any of us lay people. And if this was such a clear issue as you maintain, I am flabbergasted that the defense bar has not seen fit to make this another magic pill for a defense ... if it was a viable defense, these guys would be winning everywhere.

Well... the problem is... this concerns traffic infractions. There is not enough money in traffic infractions to raise awarness. If this BS were happening in felony cases... you better believe it would be stopped. As it is, traffic infractions are simply a cash cow for the state and the vast majority of defendants are pro se. That is a recipe for improper prosecutions.

And if you are going to be insulting and attribute foul motives to anyone who disagrees with you, why in the Hell did you even start a thread asking for opinions when all you intend to do is insult people? Either you want to hear the opinions, or you do not ... if you only want to spout your own interpretations, that's fine - but don't ask for dissenting opinions, if that is the case.

- Carl

I had no idea your skin was so thin. However, I think the problem is that we are talking about two different things. You are speaking about the concept of a prosecutor only being required to produce discovery which is sitting on his desk. While you are wrong in this opinion, that was not what the question of this thread was about.

This thread was about the inappropriate (in my opinion) position that many courts have adopted which says that a discovery request must be served on a police agency. So far, you have gotten your feathers ruffled, but you have NOT addressed that question at all. If you could direct me to the statute, rule, case, etc. that directs a defendant to serve a discovery request on a police agency vice a prosecutor, then I'll certainly eat crow in front of you and all of the other "learned legal scholars".

So, without following your lead and getting my feathers ruffled... why do you want to get angry about an issue that hasn't even been addressed???

[JIMinCA]

I know you think that the absence of a prosecutor at trial equates to no prosecution. However, this is simply not true. Take a look at VC40803(b) wich states:

In any prosecution under this code of a charge involving the
speed of a vehicle, where enforcement involves the use of radar or
other electronic devices which measure the speed of moving objects,
the prosecution shall establish, as part of its prima facie case,
that the evidence or testimony presented is not based upon a
speedtrap as defined in paragraph (2) of subdivision (a) of Section
40802.

If there is not a prosecutor, who is the law speaking about????

[Hey There]

Jim in CA.

1054.5. (a) No order requiring discovery shall be made in criminal
cases except as provided in this chapter. This chapter shall be the
only means by which the defendant may COMPEL the disclosure or production of information from prosecuting attorneys,
law enforcement agencies
which investigated or prepared the case against the
defendant, or any other persons or agencies which the prosecuting attorney or investigating agency may have employed to assist them in performing their duties.
(b) Before a party may seek court enforcement of any of the
disclosures required by this chapter, the party shall make an
informal request of opposing counsel for the desired materials and
information.
If within 15 days the opposing counsel fails to provide
he materials and information requested, the party may seek a court
order.
Upon a showing that a party has not complied with Section
1054.1 or 1054.3 and upon a showing that the moving party complied
with the informal discovery procedure provided in this subdivision, a
court may make ANY order necessary to enforce the provisions of this
chapter, including, but not limited to, immediate disclosure,
contempt proceedings, delaying or prohibiting the testimony of a
witness or the presentation of real evidence, continuance of the
matter, or any other lawful order. Further, the court may advise the jury of any failure or refusal to disclose and of any untimely
disclosure.
(c) The court may prohibit the testimony of a witness pursuant to
subdivision (b) only if all other sanctions have been exhausted. The
court shall not dismiss a charge pursuant to subdivision (b) unless
required to do so by the Constitution of the United States.
(Google:Penal Code 1054.1)
In my case I filed a Request for Discovery to the citing officer at the police dept. (Friend mailed it certified ,return receipt) but HAND DELlIVERY was refused by a D.A. clerk. I pointed to this in my request for a hearing to dismiss because Discovery wasn't provided ,
but the court here refused to give me a hearing unless the D.A. was notified. A phone call to the D.A. for verification that the D.A. didn't handle traffic infractions and a fax to the D.A. notifying of my intent to request a hearing to dismiss was unacceptable by the court here.
Finally , after having a friend MAIL a request to the D.A., I established that the D.A. had been notified and was granted a hearing to dismiss.
Although the commissioner stipulated that I was to pick up Discovery on the day of my trial at the courthouse , a clerk at the police station called me the day AFTER the hearing that Discovery was ready for me to pick up at the police station.
This was in compliance with Penal Code1054.7.
The disclosures required under this chapter shall be made
at least 30 days prior to the trial,
unless good cause is shown why a
disclosure should be denied, restricted, or deferred. If the
material and information becomes known to, or comes into the
possession of, a party within 30 days of trial
, disclosure shall be made immediately,
unless good cause is shown why a disclosure should
be denied, restricted, or deferred.(and so forth).

Typically the police depts. and the D.A. ignore these requests for Discovery. It would be interesting AND time consuming to conduct a poll on which police stations and D.A. departments provide Discovery Requests without a court order to do so.

And yes, what the officer hasn't disclosed in Discovery can be objected to by the defendant, and shouldn't be included in the officer's testimony.

From my experience even though the D.A. isn't required to appear in court for traffic infractions, I found that notifying both the D.A. and the citing officer would insure that a hearing to dismiss because Discovery hadn't been provided would be granted by the court.

CA. Supreme Court has decreed that the state doesn't have to pay prosecuting attorneys to appear in court in traffic cases.
(People v. SUPERIOR court (1972) 7 Cal.3d 186, 200)
So they don't.

A proposal was submitted to CA. legislative members in 2005 that for traffic ticket cases , dismissal should be automatic if Discovery wasn't provided within 10 days and a $500.00 fine be imposed , half to go to the court and half to the defendant.
This proposal wasn't acted on.

Best Regards,
Hey There

[JIMinCA]

Hey There,

As usual, an interesting and thoughtful post. However, I guess I am still hung up on the necessity for serving the police with a discovery request. What basis of law would require (or even suggest) that? If I had never been to traffic court before, how would I ever know that I should serve the police? And if the police respond... is it actually discovery or is it simply providing information? If it is just info, then they don't have to provide all the discovery requested, they can amend, distort or do anything they want with it as it is not governed by the rules of discovery. Am I wrong??

[Hey There]

Jim in CA.

Penal Code 1054 thru 1054.7 covers Discovery as far as traffic tickets go.


1054.1. The prosecuting attorney shall disclose to the defendant or
his or her attorney all of the following materials and information,
if it is in the possession of the prosecuting attorney or if the
prosecuting attorney knows it to be in the possession of the
investigating agencies
(a) The names and addresses of persons the prosecutor intends to
call as witnesses at trial.
(b) Statements of all defendants.
(c) All relevant real evidence seized or obtained as a part of the
investigation of the offenses charged.

When a driver is cited for a traffic infraction, the officer fills out the ticket, a copy of which he delivers to the driver. The officer retains the rest. If a video was taken the video is in the possession of the police department and the officer's notes are usually on the back of the ticket he retains.In short the police department has the information, not the D.A.
In fact when my Discovery request was ready, it was a clerk at the police dept. that called me to pick it up there. DISCOVERY was in possession of the police department, not in the D.A.'s office.
As a cited driver, it makes sense that if the citing officer is going to testify in court , that he would be in possession of the information that the driver needs to prepare his case.
This is not to say that the D.A. if off the hook as far as P.C. 1054.1 IF the cited driver requests Discovery from his Agency.

HOWEVER
P.C. 1054.1 doesn't say that the cited driver can only COMPEL Discovery from the D.A.

1054.5. (a) No order requiring discovery shall be made in criminal
cases except as provided in this chapter. This chapter shall be the
only means by which the defendant may COMPEL the disclosure or production of information from prosecuting attorneys,
law enforcement agencies
which investigated or prepared the case against the
defendant,
The cited driver can compel the police department of the citing officer to provide Discovery per 1054.5(a) . This isn't a request for information . This is a request for Discovery, and if the officer who testifies in court attempts to include any information not provided in Discovery, then the driver can object and the officer should be prohibited from doing so.
Further information can be obtained about Discovery by typing in on Google Discovery for traffic ticketsand clicking on the websites that come up.

I agree that there is nothing I see in the Penal Code that REQUIRES the cited driver to notify BOTH agencies. It just is a more DIRECT path to request the information from the police department than the D.A.
In my case I had to do both .

Best Regards,
Hey There

[JIMinCA]

1054.1. The prosecuting attorney shall disclose to the defendant or
his or her attorney all of the following materials and information,

You failed to highlight the most important part. The burden of discovery belongs to the prosecuting attorney. 1054.5 allows the court to compel law enforcement to produce the discovery not because it is a burden of law enforcement... but because it is a burden of the prosecution!!

So, I haven't seen anything compelling so far that says the police have to respond to a discovery request. So, if you sent your request to the police and it was ignored, then a cop showed up to testify... you would have no grounds to object to his testimone because the police are under NO OBLIGATION to provide discovery. The police are in court as a WITNESS... nothing more, nothing less. Why would a witness be compelled to provide discovery?? Therefore, anything the cops provide you is simply out of the goodness of their hearts... not because they are required to. That means, they can withold items... they can charge you for items... they can amend items.... they could even distort items... because what they are providing is NOT discovery!!!

If you were called as a witness to a crime, would the defense be able to compel you to provide discovery?? NO!! The cop who testifies is no different.

[Hey There]

JiminCa.

Penal Code 1054(a)
states that the DEFENDANT/ MAY COMPEL
the disclosure or production of information from
1.prosecuting attorneys,
2.law enforcement agencies
which investigated or prepared the case against the defendant,

According to David W. Brown AAL in a book published by NOLO a cited driver has the right to demand Discovery well before trial from the
prosecuting agency AND/
OR
the police agency.
Penal Code 1054 thru 1054.7 added by Proposition 115 in 1990
REQUIRES the prosecution to provide copies of WITNESSES' written statements
This includes written notes when an officer will appear in court
to testify that the driver has violated a vehicle code.
Google CA. Proposition 115 for details )
INFRACTIONS are included (Penal Code 19.7)
Except as otherwise provided by law, all provisions of law
relating to misdemeanors shall apply to infractions including, but
not limited to, powers of peace officers, jurisdiction of courts,
periods for commencing action and for bringing a case to trial and
burden of proof.
____________________________________________
IF THE PROSECUTING AGENCY doesn't normally handle infractions,
the POLICE AGENCY is required to provide DISCOVERY within 15 days of receiving the written request.
_________________________________________________________

Best Regards,
Hey There

[JIMinCA]

With all due respect, the book by David Brown is not the law.... and 1054(a) states:

1054. This chapter shall be interpreted to give effect to all of
the following purposes:
(a) To promote the ascertainment of truth in trials by requiring
timely pretrial discovery.

Regardless.... 1054.1 clearly places the burden of discovery on the prosecution. It does NOT say the prosecution AND law enforcement agencies shall....

1054.5 simply provides relief to a defendant should the prosecution ignore his responsibilities.

[Hey There]

Jim in .CA

COMPEL means must do--must comply with.

Penal Code 1054.5(a) states the DEFENDANT may COMPEL
the DISCLOSURE of information from
LAW ENFORCEMENT AGENCIES
which investigated or prepared the case (the officer prepared the case by issuing the traffic ticket NOT the D.A.), or any other persons or agencies which the prosecuting attorney or investigating agency may have employed to assist them in performing their duties
Penal Code 1054.5(b)
pertains to requirements to have the court enforce the driver's right to COMPEL Discovery to be delivered to him.
-- Before a party may seek court enforcement of any of the
disclosures required by this chapter, the party shall make an
informal request of opposing counsel for the desired materials and
information. If within 15 days the opposing counsel fails to provide the materials and information requested, the party may seek a court order. Upon a showing that a party has not complied with Section etc.

It depends how legislative intent is interpreted for
Penal Code 1054.5 (b)
Lawyers who specialize in interpreting Legislative Intent of a code run $300.00 per hour last time I checked. I am not curious enough to have an interpretation made by a law firm that specializes in Legislative Intent if the D.A. is considered opposing counsel in a traffic ticket infraction even though the D.A. hasn't prepared a case against the driver, isn't required to appear in court and doesn't keep trafic ticket records in their office.
Help!I Have A Ticket! website verifies by the cover letter to the D.A. how difficult it is to have the D.A. act as a liason beteen the cited driver and the police department in the drivers request to obtain Discovery.

IF I were cited again I would certainly
have a friend send certified, return receipt
a request for Discovery
to the D.A. AND to the police agency of the citing officer.
I would certainly have proof of service that the Informal Discovery Request had been delivered to the D.A.
and to the Citing Officer's Agency if Discovery hadn't been delivered.

Best Regards,
Hey There

[JIMinCA]

I don't think we are really talking about the same thing. I agree, I can compel the police to provide discovery. However, that is because the prosecution was required to have them provide it. The prosecution is directed to provide the discovery. Where in the Penal Code does it say "the police agency shall provide discovery"? You still haven't addressed the fact that the police agency is a witness at trial... nothing more, nothing less. Witnesses are not responsible for providing discovery. The prosecuting attorney is, however, supposed to get the discovery from the witness and provide it to the defense.

The section of penal code you show does speak of the right of the defendant to COMPEL the Law Enforcement Agency, but it also speaks of the other persons or agencies which the prosecuting attorney used as well. From your interpretation, a defendant would be required to request discovery from each seperate person or agency involved in the prosecution. That is just wrong. The one common thread that all of these people and agencies have is the prosecuting attorney. That's why the legislature makes the PROSECUTION responsible for providing the discovery... not the agencies, not contractors, not other witnesses, etc.

I see this as pretty clear. I think the law has been distorted through an inappropriate practice where prosecuting attorneys simply continue to shed responsibility for traffic cases. They cannot. The only responsibility they have ever been relieved of is the responsibility to appear in court. There is NOTHING that relieves them of anything further.

The public has been led astray by a state who wants to collect fines, but doesn't want to accept the burden of prosecution. Paying prosecutors is expensive. The State simply doesn't want to cut into its own profits in this huge money making scam!!!

[JIMinCA]

There is another example of why police should not be served with a discovery request on this thread: [url=http://www.expertlaw.com/forums/showthread.php?t=57723]"Informal Discovery" Process in California[/url]

The poster talks about how the rules of discovery were ignored when he sent a discovery request to the police and they even told him it was HIS responsibility to get the information from the citing officer!!! Hey There told me in a PM that the police were actually going to charge him $$$ for "discovery". That's why I am saying that the police do NOT provide discovery... they provide information (at their whims). The PROSECUTION provides discovery.