I am trying to get a copy of police report

[Mentllydmntd]

What is the name of your state?CA
I am trying to get a copy of the police report concerning my arrest. I know I have the right to receive it, but under what motion, under what amendment, and or statuate,
gives me the right? In other words, where do I look to find the legal way, to make a Discovery Motion, from scratch, step by step, to give
the court so they will have the sheriff dept. release the arrest report to me? I know it is called a Discovery Motion, but that is such a large, area to look for the exact information I need to do it. Can anyone narrow down my search area or even tell me the Exact name of the motion, or the case, amendment, the bill number, the what ever???? Desperate.

[racer72]

I know I have the right to receive it, but under what motion, under what amendment, and or statuate,

You are mistaken. Unless the police report is going to be used against you in a criminal case, the police report is not available to you. If you are charged with a crime based on the police report, you will then have access to it, along with any other evidence. You may have been thinking of the Freedom of Information Act which applies to public records only.

[CdwJava]

California Government Code section 6254 (specifically section 6254(f)) defines who may receive a report and what kinds of reports may be released.

In your case, they do NOT have to release it to you. However, as a matter of course, your attorney will receive a copy of the report as part of Discovery. It is usually automatically provided to your attorney when the case is filed with the court.

So, get a private attorney or a public defender, and have them get the report for you. Otherwise, you ain't gonna see it.

- Carl

[Rhubarb297]

Originally Posted by CdwJava

California Government Code section 6254 (specifically section 6254(f)) defines who may receive a report and what kinds of reports may be released.

In your case, they do NOT have to release it to you. However, as a matter of course, your attorney will receive a copy of the report as part of Discovery. It is usually automatically provided to your attorney when the case is filed with the court.

So, get a private attorney or a public defender, and have them get the report for you. Otherwise, you ain't gonna see it.

- Carl

If the prosecution is going to use the police report in court, then I highly doubt the state can choose to withhold the disclosure of the police report in a criminal trial of that person on the basis the person doesn't have an attorney. People have an absolute right to represent themselves in criminal proceedings and they are entitled to the same information as they would have if they had an attorney. Otherwise it's trial by ambush and undoubtedly would be a gross violation of the defendant's constitutional right to due process. The prosecution has to disclose everything they're going to use at a criminal trial whether the defendant is represented by counsel or not.

I don't know about whether the police report has to be provided upon request though if the person isn't being prosecuted. That may be what you're refering to. That's something governed more by state law and I don't know California open records law. I'll take your word on that subject.

I think "racer's" answer is correct.

[CdwJava]

Originally Posted by Rhubarb297

If the prosecution is going to use the police report in court, then I highly doubt the state can choose to withhold the disclosure of the police report in a criminal trial of that person on the basis the person doesn't have an attorney.

Sure they can. It's in the Government Code - section 6254, to be precise.

If the person serves as their own attorney (as approved by the court - and understand that the court does NOT permit just any defendant to represent themself) then they can probably get a copy of the report in Discovery - but I am not positive how this works. But, until they are represented by counsel or are determined to be pro per, there will be no report coming.

EDIT: And the CPRA and FOIA do not apply in this case.

- Carl

[Rhubarb297]

Originally Posted by CdwJava

Sure they can. It's in the Government Code - section 6254, to be precise.

If the person serves as their own attorney (as approved by the court - and understand that the court does NOT permit just any defendant to represent themself) then they can probably get a copy of the report in Discovery - but I am not positive how this works. But, until they are represented by counsel or are determined to be pro per, there will be no report coming.

EDIT: And the CPRA and FOIA do not apply in this case.

- Carl

I agree absolutely the CPRA and FOIA don't apply. What applies is the U.S. Constitution, in particular the Due Process Clause of the 14th Amendment as well as probably the Right of Confrontation. I can try to find that statute you're talking about but it wouldn't override provisions of the U.S. Constitution.

Yes, defendants have an absolute right to represent themselves in criminal cases. The only exception might be if the court finds the defendant is not mentally competent and can't represent himself. If they don't make that determination, but deny the defendant the right to represent himself, the court gets reversed.

If a defendant represents himself, he's entitled to everything his attorney would be entitled to.

Let me see if I understand your position. A defendant is representing himself in court. The prosecution wants to use a police report in the trial, but because the defendant doesn't have an attorney, you believe the prosecution doesn't have to show him the police report to him in advance...they can kind of just spring him it on him at trial?

I really appreciate the knowledge you bring to this board when it comes to police matters, but sometimes cops get the law wrong. This one you have all wrong. I spent 3 1/2 years writing legal opinions for a judge on a state court of appeals. If a court denied a defendant the right to see a police report prior to trial and they then used that police report against the defendant at trial, his conviction would get reversed so fast your head would spin. Even the judge I worked for, who was one of the most conservative judges on the court, wouldn't go along with that.

[CdwJava]

Originally Posted by Rhubarb297

I can try to find that statute you're talking about but it wouldn't override provisions of the U.S. Constitution.

Sure. But until the court rules that the defendent is acting as his own counsel, the release of the report to the defendant is NOT required and can actually jeopardize the case and the parties involved.

If it were so cut and dry as you say, the statute would have been overturned decades ago.

If a defendant represents himself, he's entitled to everything his attorney would be entitled to.

And when the court says he is his own counsel, then he will be provided that report through Discovery just as an attorney would be. In fact, the report is usually provided without a formal Discovery request. But, the police department does not have to release it to the defendant. If he/she wants it, they have to go through the court.

Let me see if I understand your position. A defendant is representing himself in court. The prosecution wants to use a police report in the trial, but because the defendant doesn't have an attorney, you believe the prosecution doesn't have to show him the police report to him in advance...they can kind of just spring him it on him at trial?

Not what I said at all.

CA state law permits the agency holding the report (the police) to withhold the report from the suspect. The police provide the report to the DA who provides it to the court. The court provides it to the defense counsel.

And a person does not represent himself until the court grants that permission.

Besides, a police report is not evidence so the report won't be used at trial unless it is to counter what a party mentioned in the report said or did.

I really appreciate the knowledge you bring to this board when it comes to police matters, but sometimes cops get the law wrong. This one you have all wrong.

Nope. You are either interpreting what I am saying in error, or you don't understand the nuances between what the police department must provide, and what the defense may ultimately receive through Discovery from the prosecution.

I spent 3 1/2 years writing legal opinions for a judge on a state court of appeals. If a court denied a defendant the right to see a police report prior to trial and they then used that police report against the defendant at trial, his conviction would get reversed so fast your head would spin.

I never said he would be denied the right to see the report. I only said the police department would not provide it to him. The defense counsel receives it from the court or the DA.

The CA Government Code permits us to deny the report to the suspect. In some cases, in fact, it PROHIBITS us from providing it to the defendant. This report can come from the court or the DA when counsel is assigned, or via Discovery, but if the suspect comes to the counter at the local police department they WILL be denied the report.


- Carl

[Rhubarb297]

Originally Posted by CdwJava

Sure they can. It's in the Government Code - section 6254, to be precise.
- Carl

Okay, I looked up Section 6254, and now I'm absolutely certain you're wrong. That statute deals with the exceptions to California's Open Records law and, provides that police reports are exempt from disclosure. That law is irrelevant when the police reports, and/or the facts contained therein, are being used as part of a criminal prosecution. Again, the Due Process Clause and, probably the Right of Confrontation, would mandate that the defendant have access to that police report.

If you look at some of the literature on the subject of California's open records (and other open records laws across the country), you'll find that that open records exception does not allow police agencies to withhold disclosure of a police report that is relevant to pending litigation, whether that litigation is civil or criminal. If for example, I sue the police department for beating me up during an arrest, that police report is relevant and has to be disclosed. Doesn't matter if I have an attorney or not - the issue is whether the police report is relevant to the case. If I'm being prosecuted, that police report is relevant and has to be disclosed. This is especially true if the police report is being introduced into evidence against the Defendant.

The fact that a defendant is not represented by counsel doesn't matter. The Constitution mandates that that information that is used to prosecute a defendant be disclosed to the defendant.

[Rhubarb297]

Originally Posted by CdwJava

The CA Government Code permits us to deny the report to the suspect. In some cases, in fact, it PROHIBITS us from providing it to the defendant. This report can come from the court or the DA when counsel is assigned, or via Discovery, but if the suspect comes to the counter at the local police department they WILL be denied the report.

But you're all part of one entity - the State of California. The fact that the report actually channelled through the prosecutor's office is irrelevant.

I thought you were saying the defendant, because he was acting as his own counsel, wasn't entitled to the police report as part of his defense. That isn't true. Of course, the police report would come from the prosecutor. That's standard practice.

And you're right that the police report might not be introduced into evidence. Rather the police officer might use it to refresh his memory. But even if it's not introduced, the defendant is entitled to that police report.

You're right that a defendant can't represent himself until it is approved by the court. But that's generally a formality where the court ascertains whether the person is mentally competent to represent himself. The court has very, very little discretion to deny a request to represent oneself.

Sorry if I misunderstood your position. I think you were talking more about police procedure, than what would happen once the case goes to trial. So many people think that lawyers are entitled to much more information than people who represent themselves. That's not the case. Really they stand in pretty much the same shoes.

[CdwJava]

First I never said that they can withold it if there is pending litigation! Only that we will not release it directly to the suspect! If Johnny Joe Dirtbag comes to the records window asking for a report, he will be denied the report. If he returns with a subpoena, that is a different matter. And if he is representing himself, then the court or the DA will provide it to him.

If read GC 6254(f) you will see that the following are exempt from required disclosure to all but the victim:

"Records of complaints to, or investigations conducted by ... any
state or local police agency"

The entire subsection of the exception is posted here:

(f) Records of complaints to, or investigations conducted by, or
records of intelligence information or security procedures of, the
office of the Attorney General and the Department of Justice, and any
state or local police agency, or any investigatory or security files
compiled by any other state or local police agency, or any
investigatory or security files compiled by any other state or local
agency for correctional, law enforcement, or licensing purposes,
except that state and local law enforcement agencies shall disclose
the names and addresses of persons involved in, or witnesses other
than confidential informants to, the incident, the description of any
property involved, the date, time, and location of the incident, all
diagrams, statements of the parties involved in the incident, the
statements of all witnesses, other than confidential informants, to
the victims of an incident, or an authorized representative thereof,
an insurance carrier against which a claim has been or might be made,
and any person suffering bodily injury or property damage or loss,
as the result of the incident caused by arson, burglary, fire,
explosion, larceny, robbery, carjacking, vandalism, vehicle theft, or
a crime as defined by subdivision (b) of Section 13951, unless the
disclosure would endanger the safety of a witness or other person
involved in the investigation, or unless disclosure would endanger
the successful completion of the investigation or a related
investigation. However, nothing in this division shall require the
disclosure of that portion of those investigative files that reflect
the analysis or conclusions of the investigating officer.

- Carl

[CdwJava]

Originally Posted by Rhubarb297

But you're all part of one entity - the State of California. The fact that the report actually channelled through the prosecutor's office is irrelevant.

Until the state law is overturned, we will not be required to turn it over to the suspect. So, apparently, in a state where approximately 1/3 of the nation's lawyers reside has not found one of them who has been able or willing to make a successful Constitutional challenge to this code section.

As a matter of practice, we are not the conduit through which this information is dispersed. It would be like asking for budget information - don't come to us, go to the city finance department.

I thought you were saying the defendant, because he was acting as his own counsel, wasn't entitled to the police report as part of his defense. That isn't true. Of course, the police report would come from the prosecutor. That's standard practice.

I was only saying that the suspect can't come to the department and get a copy of the report. There are ways he can - through Discovery or subpoena, but absent that, it ain't gonna happen in CA.

And you're right that the police report might not be introduced into evidence. Rather the police officer might use it to refresh his memory. But even if it's not introduced, the defendant is entitled to that police report.

Sure. But getting it at the window of the police department is not the method to be used. And in practice, the defendant will not get a copy directly as it will be provided to his counsel (or himself if he is pro per - which is a very rare thing indeed).

You're right that a defendant can't represent himself until it is approved by the court. But that's generally a formality where the court ascertains whether the person is mentally competent to represent himself. The court has very, very little discretion to deny a request to represent oneself.

Sure. But very often defendant's claim to represent themself when, in fact, they do not or will not ultimately do so. And in my experience these are few. I found a lot of pro per inmates in jail (usually for their own appeals or civil suits ... and often to try and gain advantages other inmates didn't have), but very few that actually gone to trial as such. Actually, I have never been involved ina case at all with a pro per defendant.

Sorry if I misunderstood your position. I think you were talking more about police procedure, than what would happen once the case goes to trial.

I think you're right.

So many people think that lawyers are entitled to much more information than people who represent themselves. That's not the case. Really they stand in pretty much the same shoes.

I wouldn't disagree with that.

- Carl

Originally Posted by Mentllydmntd

What is the name of your state?CA
I am trying to get a copy of the police report concerning my arrest. I know I have the right to receive it, but under what motion, under what amendment, and or statuate,
gives me the right? In other words, where do I look to find the legal way, to make a Discovery Motion, from scratch, step by step, to give
the court so they will have the sheriff dept. release the arrest report to me? I know it is called a Discovery Motion, but that is such a large, area to look for the exact information I need to do it. Can anyone narrow down my search area or even tell me the Exact name of the motion, or the case, amendment, the bill number, the what ever???? Desperate.

What was your lawyer's response to these questions?