In the Discovery Request, do you typically cc the court? if so, to whom's attention at the court and do i just send the court the exact copy as what i'm sending to the DA's office? do you typically cc anybody else?
thanks!
Printable View
In the Discovery Request, do you typically cc the court? if so, to whom's attention at the court and do i just send the court the exact copy as what i'm sending to the DA's office? do you typically cc anybody else?
thanks!
Look here for discovery directions...
Right but who do you address it to at the court? If I just send it to the courts mailing address wouldn't it get lost in the shuffle?
it's going to be fine. Just send it to the court, the citing agency, and the DAs address. Have four copies of proof of service filled out by whoever will do the mailing - include one with each copy and save one for yourself (that's your evidence that you DID mail stuff out).
another question: for written declaration, the court's notice says I must submit bail with my request for the declaration, however, the other website said i submit the bail with the actual declaration, not the request...can somebody clarify?
edit: just read cvc 40902, looks like its bail with the declaration, not the way the court wants it...
got a response back from the Distric Attorny's office, written by the Assistant DA, basically saying there is no prosecutor in this case and prosecutors are not needed for all infraction cases and that i'm not entitled to a discovery. I'm confident, from my research and the info given above, that this case is a speedtrap. Is there any else I can do in this regard concerning the DA's office?
thanks
below is the letter from the DA's office
http://img.photobucket.com/albums/v6...us96/1bof2.jpg
http://img.photobucket.com/albums/v6...mus96/2of2.jpg
Here's my $.02. I have to disagree with the Assistant District Attorney's interpretation of CA law and applicable case law. She uses Carlucci to justify, "There is no prosecuting attorney in your case". She then incorrectly concludes:
Quote:
Accordingly, the Criminal Discovery Statute does not entitle you to any statutory pretrial discovery
But that's NOT what Carlucci states. Carlucci does NOT state that the prosecutor has NO responsibility in an infraction case. Quite the contrary. The court stated (bold added):
Quote:
Quoting People v. Carlucci , 23 Cal.3d 249, 258
As the ADA pointed out, Carlucci does indeed state that, "The People are not required to provide a prosecutor for every infraction trial." But, just because a prosecutor is not required to be at the TRIAL, does NOT mean that the prosecutor is excused for EVERY legal responsibility associated with infractions.
CA Penal Code 1054.1 clearly states:
Quote:
Quoting Penal Code 1054.1
Neither Carlucci nor the penal code says that the prosecutors office is EXCUSED from this responsibility just because a specific prosecutor is not assigned to the trial.
So, in short, while Carlucci may not require a prosecuting attorney be present at trial, it does require that public officials "discharge their responsibilities". Section 1054.1 makes providing disclosure the responsibility of the prosecutor. NOTHING in Carlucci refutes that.
That's actually about 3 cents worth, sorry.
Barry
Barry, excellent response. I concur 100%. I am sick of prosecutors twisting Carlucci and similar cases to pretend that they have no responsibilities. If there is no prosecutor in a traffic case, then who is prosecuting? Not the judge, they are a member of the judiciary. Not the cop, he is a witness. So, if there is no prosecution... how can there be a conviction?? The law simply does NOT prosecute itself.
This is one of the blatant abuses of citizen's rights that I argue against all the time. I have seen similar letters from other DAs, but that one is the worst I have ever seen.
Maximus, you have a rare opportunity here. You have opportunity to change the way CA prosecutes infractions by setting a precedence. You should go into court with your letter and demand that the court compel the production of discovery. You will likely be overrulled. Then you should object to all evidence introduced but not provided in discovery. You will likely be overruled again. Then, you will loose your case. At that point, you have the ammunition necessary to mount an appeal that can better define the DAs responsibilities in CA. You better bet that they will be well represented in this appeal as they do NOT want to give up the cushy position they have now of ignoring traffic cases.
I'd send a copy of your letter to Geo. McCallip at helpigotaticket.com. He is always looking for test cases that will prove a point and provide a precedence. I am sure he would be willing to get personally involved with helping you in your case.
So, ball is in your court. Do you want to take a stand for all Californians, or do you just want to sneak out with traffic school?
BTW.... I would LOVE to hear Carl's opinions on the letter you got from the DA. I'm sure it would be something like, "well, if the DA's office is doing it, it must be legal!"
It's too bad they don't post the actual BRIEFS that were submitted. I would love to read both sets in Carlucci. Specifically, I'd like to know what the District Attorney's brief said when they stipulated to the "error" of the judge's acting as prosecutor. The Supreme Court actually disagreed and stated that the questioning was within the discretion of the court. So, in this case, the opposition actually cared more about the defendant's rights than the judges on the Court.
There is no doubt that Carlucci excuses the prosecutor from attending the hearing. However, the HEARING is ALL Carlucci addresses. It simply states that, while the prosecutor need not be present, the judge CANNOT act as prosecutor. It sets forth acceptable behavior on the part of the judge in those cases where a prosecutor is not present.
To conclude, therefore, that because a prosecutor will not be present at the hearing, the defendant forfeits ALL rights and privileges accorded by law, is JUST PLAIN WRONG!
I agree with Jim, Maximus. If you have the means, the time, and the money, I would love to see you press this issue. I'll understand if you don't. Good luck.
Barry
got a reply from the court today in response of my discovery request. everything i mailed was returned to me in full, with the explanation that my request is being returned to me because i do not have a trial date yet. i have submitted a request for trial by declaration, but was not sent one because i didn't include the bail. i was just sent an info/courtesy letter, saying that i may request the written declaration, but bail must be posted....so i have to send it a check first.
i don't have the time or means to really press this issue like you guys are suggesting, although i understand its a wonderful opportunity to make something happen. i can try it by mail, but i really can't take off work to go to the court unless absolutely necessary. that's why i'm trying the trial by declaration first...
Your response is pretty disappointing. Many people come here to volunteer their time to provide you with opinions on how to deal with your legal problems, but you suggegst that you don't have time? That's really weak.
However, I'd suggest that if you plan on doing the TBWD that you simply include a copy of the letter and state that you request dismissal due to the prosecution's decision not to prosecute. I can't imagine how that would not work. There is no prosecution to dispute the claim and you have the letter saying that they have no interest in the case.
I hope you have time to do that.
to be honest with you, i can't afford to take time off to go to court multiple days. thats why i'm trying the TBWD route in the first place.
However, if i can press this issue with the DA without going to court, i would be very willing to do so.