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  1. #1

    Default Re: Finding Out About Judge and Prosecutor's Oath of Office

    Knowitall, you really think this is a dead end? Even after cmre3456 just stated that he got a ticket dismissed because of this? I am most focused on the officer's certificates. That would be the very first thing anyone should check, to see if the officer is even legally authorized to be writing tickets in the first place.

    I don't really see how you can really think that is not a big deal...are you smoking crack?

    Cmre3456: So I have submitted Discovery requests and they are either ignored or given a response saying the DA is not responsible for traffic tickets or Discovery. What now? That's why I'm thinking just a simple FOIA request to the city/court/state clerk to pull the oaths would work.

  2. #2
    Join Date
    May 2011
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    638

    Default Re: Finding Out About Judge and Prosecutor's Oath of Office

    Quote Quoting surfer349
    View Post
    Knowitall, you really think this is a dead end? Even after cmre3456 just stated that he got a ticket dismissed because of this? I am most focused on the officer's certificates. That would be the very first thing anyone should check, to see if the officer is even legally authorized to be writing tickets in the first place.

    I don't really see how you can really think that is not a big deal...are you smoking crack?

    Cmre3456: So I have submitted Discovery requests and they are either ignored or given a response saying the DA is not responsible for traffic tickets or Discovery. What now? That's why I'm thinking just a simple FOIA request to the city/court/state clerk to pull the oaths would work.
    Mr. Knowitall is exactly right. If you challenge a state court you're smoking crack. It will never work.

    I never said that I was successful at what you're proposing. My state has municipal and judicial courts which are inferior to, and subject to the state courts. I found out once that neither a municipal court or its judge had the proper authorization to operate and got a case dismissed.

    Now, we do ask for discovery, especially with radar. We ask for the officer's proof of current training in that make and model, the requirements and compliance with calibration of the radar and so on. I ALONE probably ask for documentation showing that the officer is a properly trained and duly sworn police officer. That documentation would vary in your state.

    I have never been successful challenging an officer, his radar unit or his training but many others have. Some departments get sloppy with that. I always try but not everyone does. I take every shot which I know has any possibility of winning the case IF I'm involved in a case which is going to plead not guilty. It isn't always smart to plead not guilty.

    I don't know your state at all and I hope others who do weigh in. I would demand discovery from the police department because I want police department records and the police department cited me. In no case should you need the FOIA. You have been charged and you have a right under the law to discovery.

  3. #3

    Default Re: Finding Out About Judge and Prosecutor's Oath of Office

    So in CA, by law, discovery is between the plaintiff and the defendant. Yep, we do have the right to Discovery, and that is the District Attorney's job to provide, as the public official elected to prosecute on behalf of the people...however, more often than not, the DA either refuses to reply or says it's not his job to provide Discovery.

    See my other post for more info:
    http://www.expertlaw.com/forums/showthread.php?t=144878
    1. Discovery is between the parties. 1054.b
    2. The parties are the plaintiff and the defendant.
    3. The citing officer/agency is NOT a party, merely a witness. People v. Marcroft (1992) 6 Cal.App.4th Supp. 1 , 8 Cal.Rptr.2d 544.
    4. The officer can not act as the prosecuting attorney unless he's a member in good standing with the CA Bar. Professions Code 6125.
    5. The District Attorney is the public prosecutor, opposing counsel. Government Code 26500
    6. The party shall make an informal request. 1054.5.b
    7. The Prosecuting attorney SHALL DISCLOSE... 1054.1
    8. A prosecutor has a duty to search for and disclose exculpatory evidence if the evidence... Kyles v. Whitley, supra, 514 U.S. at p. 437 [115 S.Ct. at p. 1567]
    9. Evidence may be prohibited if a party does not comply. 1054.5.c

    To sum up. Either the DA writes back saying they don't do traffic tiickets (=no prosecution) or they don't answer at all (=all evidence is not allowed, i.e. officer notes, ticket, etc).

    So:
    Whereas we will give opposing counsel benefit of the doubt and argue they would not disobey the law by denying Defendant a right guaranteed in the Constitution; and
    Whereas opposing counsel does have the right to elect to not prosecute the case; and
    Whereas a decision not to prosecute is the only explanation other than denying Defendant’s right that explains opposing counsel’s refusal to comply with the discovery request; and
    Whereas, prosecution being an act of the executive, not the judicial, the court may not initiate or reinstate on its own any prosecution; and
    Whereas the case, per this argument has failed per lack of prosecution; and
    Whereas the only other alternative is that Defendant has been denied a right guaranteed by the Constitution, which is grounds for dismissal per Penal Code § 1054.5(c);
    Therefore, Defendant respectfully requests an immediate dismissal of this case.

    - - - Updated - - -

    on another note, does anyone have experience "IMPEACHING THE WITNESS?" i.e. don't even bother addressing certificates or training or RADAR use, but go directly for whether the claim the officer wrote was even valid...i.e. Marc Stevenss strategy (http://www.youtube.com/watch?v=VL2yFMjF4pM)

  4. #4
    Join Date
    Sep 2005
    Location
    California
    Posts
    20,594

    Default Re: Finding Out About Judge and Prosecutor's Oath of Office

    The oath issue has been tried before, and it has failed - at least in CA. It's one of those myths promulgated by a whacko fringe and has occasionally been attempted ... creating much mirth and frustration among the watchers of the court.

    cmre3456, FYI, our courts in CA are consolidated Superior Courts. Municipal Courts have essentially been gone for a long time, and were officially done away with starting in 1998.

    As for the officer, the "oath" that they took is contained within their personnel file. Absent consent, you would need a court order to take a peek in there. I imagine a judge or commissioner's oath would be in a similar file.

    surfer349, let's say the police department provides you a copy of the oath - and the court does the same - what then? Do you actually have a defense to put on, or are you hanging your entire case on a snowball's chance in Hell that you can get the matter dismissed for lack of jurisdiction or some such absurdity?

    And, if you read on, you will find that if discovery is not provided, the court will generally order discovery be provided before they dismiss a matter for lack thereof.

    - - - Updated - - -

    Quote Quoting surfer349
    View Post
    on another note, does anyone have experience "IMPEACHING THE WITNESS?" i.e. don't even bother addressing certificates or training or RADAR use, but go directly for whether the claim the officer wrote was even valid...i.e. Marc Stevenss strategy (http://www.youtube.com/watch?v=VL2yFMjF4pM)
    Of course, in CA these are not "civil" matters.

    And, of course the officer is not going to know the answers to a question he has no need to know. In CA the Vehicle Code mandates that the citation be forwarded to the court. That's it. The officer writes the cite and forwards it to the court.

    You really need to avoid heeding some of these fringe ideas ... they don't work in the real world - at least not in CA.

    Others will probably be along to cite the specific code sections, but I'm rushing out the door and am on a laptop, so the details will have to wait until later.

  5. #5
    Join Date
    May 2011
    Posts
    638

    Default Re: Finding Out About Judge and Prosecutor's Oath of Office

    Excellent posts. I do know that Calif. doesn't have municipal courts now but we still do. They can be appealed de novo to the state (circuit court here.) Upon motion, they can be remanded to the circuit court, but as I once said, I like the two bites at the apple.

    Question. Does Calif. have a time certain for trial to assure a "speedy trial?" Is it possible for the prosecution to cause unfair and unwarranted delays until the time is up? I dunno, just wondering.

    Here, if I asked a police dept for discovery they'd give it to me and I would get it more quickly. I don't always need to ask for discovery from the OP, whoever that is. I can for instance, serve a subpoena duces tecum upon a witness.

  6. #6
    Join Date
    Mar 2009
    Location
    LA LA Land
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    Default Re: Finding Out About Judge and Prosecutor's Oath of Office

    Here is my contribution in this thread:

    This is one trial I would actually pay a premium price to watch!

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