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  1. #1
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    Default 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.

  2. #2
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    Sep 2005
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    Default Re: Admission of Discovery Evidence at Trial Without a Custodian of Records (Californ

    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.

  3. #3
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    Mar 2013
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    Default Re: Admission of Discovery Evidence at Trial Without a Custodian of Records (Californ

    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.

  4. #4
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    Default Re: Admission of Discovery Evidence at Trial Without a Custodian of Records (Californ

    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.

  5. #5
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    Dec 2011
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    Default Re: Admission of Discovery Evidence at Trial Without a Custodian of Records (Californ

    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).

  6. #6
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    Default Re: Admission of Discovery Evidence at Trial Without a Custodian of Records (Californ

    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.

  7. #7
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    Default Re: Admission of Discovery Evidence at Trial Without a Custodian of Records (Californ

    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.

  8. #8
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    Default Re: Admission of Discovery Evidence at Trial Without a Custodian of Records (Californ

    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.

  9. #9
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    Default Re: Admission of Discovery Evidence at Trial Without a Custodian of Records (Californ

    Quote Quoting Mr. Knowitall
    View Post
    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.
    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.

  10. #10
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    Default Re: Admission of Discovery Evidence at Trial Without a Custodian of Records (Californ

    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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