Admission of Discovery Evidence at Trial Without a Custodian of Records

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Quoting Mr. Knowitall

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donzhoh1 knows next to nothing about the law. When donzoh1 tells you "what the law is", you can count on it to be a mixture of fantasy and wishful thinking. donzoh1's own authority reiterates my point -- that it would be stupid to serve the prosecutor in lieu of serving the police agency and, should you wish to serve the prosecutor, you should serve the prosecutor along with the police agency that will actually be responding to your discovery request.

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As you might imagine, a person, such as myself, who has beaten four straight moving violations is very interested in what Mr. K says here. Even though I thought he was right for sure, as his username implies, I looked up the relevant California Law on discovery as it applies here.

"Application of Provisions of Law to Infractions

CPC 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."

In other words, with limited exceptions, including the right to jury trial and the right to provided counsel, infractions are treated legally as other public offenses are.

"CPC 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..."

In other words, the District Attorney has an affirmative discovery obligation in public offenses.

Undoubtedly, Mr, K will now cite the applicable provisions of California Law which require a Law Enforcement Agency to provide discovery evidence to a defendant.

Of course, there is this caveat in that section: "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 ..."

Since traffic citations are not provided to the DA they are not in possession of it, nor is the DA the prosecuting attorney in most traffic offenses.

Then who IS the prosecuting agency? Im aware that the DA need not be present but case law and statute are clear that the DA is in fact the prosecutor. The DA is well aware that citations are issued by certain agencies in the county and the case number, provided in the IDR, and the defendant's statement indicating which agency is involved is all the information the DA needs to fulfill his duties. Presumably, Mr. K will shorlty admonish you regarding your statement as to who is the prosecutor in California infractions.

Once again, the DA is not in the filing loop. They do NOT GET citations unless they have worked out a deal with the courts to receive them first. Since the CVC clearly indicates that cites are sent to the court directly, the DA or city prosecutors do not receive them absent some special arrangements. I'll leave it to others to justify it, but, that is the law.

ALL citations, with exception to those that are inherently, clearly misdemeanors go from the police department, rubber banded to the courthouse that checks them over and sends them off to a third party who then sends them back to the courthouse where they get scanned and then burned to a crisp.

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Quoting jeff1970

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Then who IS the prosecuting agency? Im aware that the DA need not be present but case law and statute are clear that the DA is in fact the prosecutor. The DA is well aware that citations are issued by certain agencies in the county and the case number, provided in the IDR, and the defendant's statement indicating which agency is involved is all the information the DA needs to fulfill his duties. Presumably, Mr. K will shorlty admonish you regarding your statement as to who is the prosecutor in California infractions.

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This is how one DA explains it:



http://i51.photobucket.com/albums/f3...0FROM%20DA.jpg

Yeah ... but, that argument flies in the face of the CA Penal Code which specifically defines an infraction as a public offense.

15. A crime or public offense is an act committed or omitted in
violation of a law forbidding or commanding it, and to which is
annexed, upon conviction, either of the following punishments:
1. Death;
2. Imprisonment;
3. Fine;
4. Removal from office; or,
5. Disqualification to hold and enjoy any office of honor, trust,
or profit in this State.

16. Crimes and public offenses include:
1. Felonies;
2. Misdemeanors; and
3. Infractions.

Since Burks v. US doesn't appear to state that an infraction is NOT a crime, plus there is CA case law that states: "The terms 'crime' and 'public offense' mean the same thing. They include felonies, misdemeanors, and infractions (Hamilton (1986) 191 Cal.App.3d Supp. 13.)," and the AG's opinion is not necessarily legally binding (and, I cannot find it anywhere online), I think the DA in Riverside was stretching it a bit.

While I agree that the DA is not the public prosecutor for these infractions, I believe that the Riverside DA was in error in the supporting cites he used for this determination. Though, I'd like to read the actual AG opinion ... though, it seems to be in excess of 50 years old, so it doesn't appear to be readily available.

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Quoting donzoh1

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As you might imagine, a person, such as myself, who has beaten four straight moving violations is very interested in what Mr. K says here.

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Your claimed success rates for less than a handful of the most trivial of legal matters in no way undermines the documented fact that you know very little about the law and frequently spout absolute nonsense.

When you suggest sending a discovery request to the prosecutor instead of the police agency, you are proving yourself to be a danger to the people posting on this site.

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Quoting cdwjava

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Since Burks v. US doesn't appear to state that an infraction is NOT a crime, plus there is CA case law that states: "The terms 'crime' and 'public offense' mean the same thing. They include felonies, misdemeanors, and infractions. (Hamilton (1986) 191 Cal.App.3d Supp. 13.)," and the AG's opinion is not necessarily legally binding (and, I cannot find it anywhere online), I think the DA in Riverside was stretching it a bit.

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Hamilton expresses that by virtue of statutory definition, Sec. 16 of the Penal Code, the term "Crimes and public offenses" includes infractions, not that "'crime' and 'public offense' mean the same thing".

Burks is a federal court opinion that suggests that, under Sec. 15 of the Penal Code, "'a public offense' is synonymous with 'a crime'" within the context of whether a defendant was properly arrested for "a public offense committed or attempted in [a police officer's] presence" pursuant to Sec. 836 of the Penal Code. I disagree with the prosecutor's use of that case to suggest that "public offense" has been interpreted to include only felonies and misdemeanors.

The D.A. points to statutes which make clear that the legislature wants infractions filed with the court, bypassing the prosecutor, and reasonably suggests that the legislature did not intend to impose any duties on the prosecutor for discovery pertaining to traffic infractions. For all of donzoh1's bragging about his traffic tickets, he has failed to convince a court that the prosecutor was wrong, and to date every court that has heard donzoh1's argument has rejected it. Unless and until donzoh1 succeeds in his quest to convince the courts that he is right and the are wrong, present practices will continue.

I have been completely clear about several points previously:

1. The DA is the prosecutor in the vast majority of California Traffic Infractions, regardless of claims by DAs who either don't know what they're talking about or don't care to follow the law.
2. The California Penal Code requires all discovery requests by the defendant be submitted to the prosecutor.
3. A defendant who wants to see the evidence in his case would do well to file with BOTH the prosecutor and the LEA.

If a defendant is factually guilty and believes the evidence will hurt his case, filing with the DA only may be the best option, giving him a procedural argument for either delaying the trial or preclusion of evidence. If a defendant files ONLY with the LEA and no evidence is provided, the defendant has NO legal argument at all, assuming the judge knows the law concerning discovery.

That's the law, regardless of what's usually done or Mr. K's assertion that I know "next to nothing" about the law. And, it's fully consistent with what I've said around here before.

You're free to grouse until the end of time that you're smarter than every judge in the state, and that everybody should heed your magical answers. But in the real world, people need to follow proper practice and serve their discovery requests on the police agency. When you were corrected -- when it was pointed out that your insistence upon instead serving the prosecutor is dangerous and foolish, and that any suggestion to serve the prosecutor should be in addition to making proper service on the police agency -- you should have kept your mouth closed and let the correction stand.

You are free to try things your way and convince an appellate court that you are correct when a prosecutor does not respond to your misdirected discovery request, but you should not suggest that others misdirect their discovery. Even if we assume that the appellate courts will eventually start agreeing with you, right now people have to deal with the real world and the way things work here in the real world.