Admission of Discovery Evidence at Trial Without a Custodian of Records

My question involves traffic court in the State of: California.

I got a citation for illegal right turn on red California vehicle code 22101(d). Trial is Monday 05/04/2015 and I served a timely discovery request (about 20 days before trial) and I have received a discovery response.

Given my limited legal experience, I returned to the Orange County Sheriff (police agency that issued the citation) with a process server to issue a subpoena so that the custodian of records would appear to testify to the documents they gave to me through discovery. I spoke with the person who reviews subpoenas and records requests and she told me that they would not testify to the authenticity of the records because they were completed by the officer, who would be appearing already. Instead, they said if I insisted on serving the subpoena, that they would have counsel appear on Monday with a motion to quash and they told me that I could introduce the evidence at trial because it was given to me through pre-trial discovery.

My understanding is that, to introduce these documents/audio/etc, I must first lay a foundation by asking the witness (officer) whether he created such documents, the method by which they were kept since their creation, and the chain of custody. So I am worried about the following possibility:

If the officer says he cannot be sure that the documents/audio/etc. that I am asking about were his originals or if he says that he handed them off to another sheriff's dept. staff member after his shift and he has no idea about the business processes they follow or the chain of custody before they were sent to me in discovery, what do I do?

In other words, what is a fool-proof way to introduce (into evidence) the documents produced in the discovery response I got?

P.S. I am sorry if this has been answered before but I searched dozens of threads here and all of them dealt with how to ask for discovery or motion to compel or dismiss when discovery was not forthcoming. For those curious, I noticed that the diagram drawn by the officer does not accurately demonstrate the intersection (he drew a 3-way intersection instead of a 4-way) AND the diagram makes it appear that he may misstate his location so as to say he could see the red light when I made my turn (in fact he was across the intersection so could not have seen the right turn light controlling my direction). Also, I caught a sheriff's officer on the street and asked about the cameras in their vehicles and he said every vehicle has one and they are "always on". This is relevant in my case because I asked for video of the infraction and stop but only received audio. I will elicit the fact about the camera from the officer in testimony and point out that there is exculpatory evidence that exists which was not provided during discovery and that officer's testimony should be viewed with distrust given the existence of more compelling evidence (the video) per CA evidence code 412.

What item is it that you want the "custodian of records" to testify to? And if the agency did not generate the record in question, the custodian of records cannot verify anything.

Do you KNOW there is video of the contact? If so, did you request it? Many officers use their own audio devices for each contact so f you received audio that may be the only recorded record of the contact.

There’s a lot missing from your post so I have to wing it here, ask a lot of questions and make a lot of assumptions which may not be correct. Let’s start.

Did you get everything you specifically asked for in you informal discovery request? The reason I ask is the Custodian of Records is not a mind reader and only going to provide what is specifically requested.

Next, if something you requested was not provided, did the Custodian of Records explain why in their response?

You speak of diagrams and authenticating documents. In this case were you referring to the hand drawn picture on the back side of the citation? If so, the Deputy will authenticate this in court as this came from his copy of the citation which he personally retains as his notes. The Custodian of Records had to come to the Deputy to obtain a copy from him. Similarly, if you got an audio recording only and not a video, that probably came from the Deputy’s personal recorder and not the recording unit in the patrol car. Again, the Deputy will need to authenticate that.

With respect to the patrol car video, yes, they usually record all the time, but the recording is only coded as an incident that is retained and saved if the emergency lights are on. If the lights were off during your stop, the recording system sensed this as dead time and it was probably recorded over by the end of shift.

Patrol car videos are kind of similar to how dash cams work in private vehicles. Dash cams have a card that holds a few hours of video. They record all the time and when the card is full, they erase and record over themselves starting at oldest recording. However, if the camera is jarred enough to make it think you have been in an accident, the camera retains video from around 10 seconds before it was jarred to 10 seconds after it was jarred and marks it as protected so it won’t be erased and recorded over. It’s the same thing with patrol car cameras but instead of jarring them, turning on the lights marks the recording to be saved and protected.

I should probably add that not all dash cams function the same way. The devices deployed in the past two or three years are much better than the devices installed say, five years ago. Many devices that were used where I have worked only started recording when the lights were on. Now, many of these devices are much more sophisticated and can record continuously saving a specified amount before activation (lights or manual "on"), but, even these are not universal. And an agency that has the older devices may not have the money or technological infrastructure to utilize newer devices. It's a question of money.

And, even if the agency has deployed newer devices, there is no guarantee that they are universally deployed. Again, money.

Thank you all for your answers; I did get some of what I requested for discovery. The video of the alleged infraction and subsequent traffic stop was missing. I did not receive notice that this item does not exist but I appreciate all your clues regarding how to begin questioning the officer. If he cannot recall having the lights on or off, great; if he confirms he had the lights on; great. In either case, I can attack either independent recollection or the withholding of the video.

What I am worried about is the chain of custody which the officer cannot testify to. The diagram I mention was on a 1-page incident report which was provided to me by the agency. I like to plan for contingencies and I have been in court in traffic, criminal, civil, family law, and even mock trial. It is common for people to tell half-truths or suddenly have selective memory. If the officer does not recall generating the report and diagram which I received via discovery or cannot verify that the copy I have produced is the one he generated, I have nobody to testify where it came from and I am in a bad place. That is why I am curious if I should insist that the custodian of records for the sheriff appear simply to testify that they got the records from the officer and provided them to me (so there is no selective memory by the officer or implication that I forged the records).

Please forgive me as I’m not trying to be rude, but you have been watching too much courtroom drama on television. This is a simple traffic ticket. The hearing officer is only concerned with whether or not you committed the violation. If an I is not dotted or a t is not crossed you don’t go home with the apologies of the court, a $10,000 settlement in your pocket and a get out of jail free card to use the next time you get stopped.

This is not like proving a homicide. You will go into the hearing room. The deputy will testify as to what he saw. It is highly unlikely he will present any of the discovery items you mentioned. All of that was prepared primarily for statistical and data gathering purposes. He will have reviewed it prior to testifying in order to refresh his memory. He may or may not play a personal audio recording if it contains statements you made admitting guilt. If he personally made the recording, he can authenticate to the court’s satisfaction. That’s all it takes to prove a traffic violation.

Once he is through testifying, you may cross examine him and present your case. That’s it.

If you wish to use any of the discovery items the department gave you to bolster your defense, the department is not going to challenge them. Of course, you may challenge them if you so wish. If you prevail you may no longer be able to use them as a basis for your defense. That’s like shooting yourself in the foot. Give that some thought before pursuing that avenue.

If the recording was not played initially and you claim innocence, the deputy may then present it as a rebuttal. You can challenge it at that time but again, if he made it personally he can authenticate it to the court’s satisfaction.

Beyond that, there's not a lot to this.

If you want to be technical about the Informal Discovery Request, you should have submitted it to the DA who then should have forwarded it to the Police Agency. As a practical matter, this aspect of California Law is usually ignored and the DA will simply tell the defendant they aren't involved and that the request should be made directly with the LEA.

As to foundation, you'll be fine by just saying that you received the evidence from the LEA after you made an Informal Discovery Request. On the question of video, if you can establish that there is or should be video but it wasn't provided, that will work to your advantage, although the court may or may not dismiss based on this. The Custodian of Records or whoever provided the information should have either provided the video or indicated that there was no such evidence. As has been pointed out, you're not going to have any trouble getting the evidence in, especially if you bring your copy of the IDR, your Proof of Service, and you testify that you received the evidence from the LEA. If the officer has his own recording that was not provided and uses it to refresh his recollection, you could argue that an appropriate sanction would be to preclude the testimony based on the failure to provide evidence but there are a number of other sanctions or remedies available short of exclusion. The judge could simply give you a chance to review the recording.

I agree that you've gone off the deep end here in terms of evidence foundation. If you tell the judge you took a process server to the LEA headquarters, I think you're going to see the big eye roll.

donzoh1 is a one trick pony on the discovery issues. He complains incessantly that California courts don't handle discovery properly, and encourages people to ignore reality. If you want to send an additional copy of your discovery request to the prosecutor, along with the service on the police agency, by all means do so -- but to send it only to the prosecutor, knowing that you're simply going to be informed that you need to serve it on the police agency, is a fool's errant.

If you don't agree with the officer's illustration, which may in fact never even come into evidence, prepare your own. If you want to use it as an exhibit, as opposed to a visual aid, consider using a blown-up image from an actual map.

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Quoting Mr. Knowitall

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donzoh1 is a one trick pony on the discovery issues. He complains incessantly that California courts don't handle discovery properly, and encourages people to ignore reality. If you want to send an additional copy of your discovery request to the prosecutor, along with the service on the police agency, by all means do so -- but to send it to the prosecutor, knowing that you're simply going to be informed that you need to serve it on the police agency, is a fool's errant.

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Not exactly correct.

Donzoh1 is telling you what the law is, regardless of what the courts actually enforce. While a court would be perfectly within the law to ignore an IDR sent only to an LEA, they usually don't. One of Donzoh's other tricks relates to Government Code 26500 which generally prohibits the City Attorney (with some exceptions) from prosecuting traffic infractions. Courts will generally allow this misbehavior unless challenged by the defendant, just as they generally allow IDRs sent only to LEAs.

In the book Fight Your Ticket in California by David Brown (who unlike Donzoh is an actual California Attorney) it is recommended that you send IDRs to both the DA and the LEA. This gives you the strongest position to argue non-compliance with discovery requirements. If you're dealing with an agency like CHP which almost always complies with discovery, you won't have that argument.

If you're guilty as sin, your only hope is to throw monkey wrenches in until something breaks down. Alternatively, you can just accept responsibility for your actions. In the cases Donzoh has won, he was factually guilty of 4 out of 5, including the dreaded parking ticket. You can't necessarily use the same trick in each case so the "one trick pony" term is not appropriate.

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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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.

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Quoting donzoh1

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I have been completely clear about several points previously:

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We're all familiar with your position. If you want, you can take it up in 'debate the issues', but you need to stop disrupting other people's threads.

Let's see how long it takes for Bozo to start arguing with the man who owns this place...

Waiting

Thanks to all of you for all your help. Donzoh1 provided the most help with "As to foundation, you'll be fine by just saying that you received the evidence from the LEA after you made an Informal Discovery Request." If this is inaccurate, please let me know, though I'm going to try anyway and will find out tomorrow.

As far as the rest of the debate, I can tell there are some egos involved. I thank all of you for your help and I appreciate any strategy, as well as opinions on their effectiveness. I agree that, in practice, most of you are right in that the Orange County, California District Attorney took my discovery request, stamped it as received, and returned it to me, saying they will do nothing with it. I first discovered this forum years ago during my last round with CA traffic court, that time in Monterey County, so I knew about the debate between serving LEA or DA. I had already followed the advice I learned back then: serve both. In this case, my service of the DA was irrelevant because the orange county sherriff responded to my discovery request, but in Monterey County, I got no response, so I would prefer to be safer by serving the DA also just to eliminate loopholes in my arguments.

In that case up in Monterey, I served a second discovery request on the LEA the week before trial and even saw the citing officer who said "see you next week" or "see you there" or something to that effect when I left. When I got to trial, officer was a no show. I will likely never know whether it was the failure of the Monterey County Sherriff to understand what to do with the discovery request (they didn't seem nearly as organized as OC sheriff) or whether the guy genuinely was on vacation or sick on the day of trial. I think it was the former because I never did get any response to my two discovery requests and I would be surprised that a sheriff takes a day off when he's calendared to be at trial.

Regardless, in this case, first I will deny guilt and attempt to discredit officer by pointing out his inaccurate diagram of the intersection and pointing out that video existed but was destroyed though it would have been the most compelling evidence for my defense. At the very least, it sheds doubt on the testimony of the officer per CA evidence code 412. "If weaker and less satisfactory evidence is offered when it was within the power of the party to produce stronger and more satisfactory evidence, the evidence offered should be viewed with distrust. Also, I did not admit guilt at the traffic stop so, without admitting guilt, I will present an affirmative defense that the signage at this intersection is arranged in a manner that is not reasonable to allow drivers to comply with the signage. I will show this by demonstrating a few typical intersections: 1 traffic control sign here, 2 signs there, 3 signs there... then compare to the intersection I was at with 10 separate traffic control signs plus more on approach. I will prove that this is unreasonable by explaining and showing the number of other people who violated the "no right turn on red" law at this intersections. People who have worked only 2 blocks away from this intersection for 3, 6, and 9 months respectively had no idea that it was illegal to turn right at this intersection. Aside from anecdotal evidence regarding my coworkers, I stood for 25 minutes at the instersection and photographed 9 separate violators, more than 1 person breaking the law at that intersection every 3 minutes, in some cases, 2 or 3 cars at a time (it's a two-lane right turn).

I will conclude by saying that "in addition to the citing officer, there are likely other officers here today who patrol this area and, knowing what they know now, they could sit at this intersection for an hour and make thousands of dollars for the state by citing unwitting drivers like me who are overwhelmed by the signage at this intersection. I would ask that they do not. Traffic signs are designed to save lives, not act as a trap for visitors to the area and I would ask that the court consider the evidence I have provided and make a recommendation to the Public Services Department of Laguna Hills and the California Department of Transportation to work on a design and implementation of a traffic control scheme that meet the principles that they are intended to follow: to provide the reasonable and prudent road user with the information necessary to efficiently and lawfully use the streets. (CA Manual on Uniform Traffic Control Devices section 1A.02(06).

Wish me luck!

First, I doubt that the sketch of the intersection on the back of a citation is going to be considered an accurate representation of the intersection. Certainly you might use this to discredit some recollection of events if he recalls three lanes and it is actually four, but, it may have no real bearing on your case if lanes are not the issue.

And I must have missed the posting where it was shown that video existed and was "destroyed." How did you determine this? Before you go making such blanket accusatory statements, you had best have some sort of proof. Accusing an officer or an agency of malfeasance - even simple shoddiness - without proof is not likely to sit well with the court.

I cannot address the positioning of the signs or whether or not they are confusing because I cannot see the section of roadway. That may be your best argument, and the one least likely to tick off the court.

Showing that many other people violate the signs doesn't prove that the signs are bad, it may simply prove that there are a lot of dumb or intentionally disobedient drivers. There is a U-Turn sign in my town that is in front of a Wal-mart that is intentionally ignored with great frequency every day. Everyone knows it is there, but they make the U-turn anyway when they do not see an officer. Why? because they feel it is more convenient than the alternative. I can stand at most any intersection in most any city and observe violators of stop signs, lights, crosswalks, and a host of other violations that have no connection to signage, so, your anecdotal detail may avail you little.

I will elicit evidence regarding the video during cross examination. I was told my another sheriff's officer that every vehicle has video recorders and that they are always on. They just don't have unlimited memory so they tape over unimportant incidences. We'll see.

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Quoting dbozam

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I will elicit evidence regarding the video during cross examination. I was told my another sheriff's officer that every vehicle has video recorders and that they are always on. They just don't have unlimited memory so they tape over unimportant incidences. We'll see.

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Saying the evidence was destroyed infers intentional action was taken to get rid of it. Since the video was recorded over as a normal function of the system, there is no intentional action. The proper phrasing would be that the video was recycled and is no longer available.