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  1. #1

    Default Getting a Dismissal if the Prosecutor Doesn't Give Materials Requested in Discovery

    My question involves traffic court in the State of: Alabama

    Thank you in advance for reading this! And I apologize for my lack of experience because I've never been to a real trial before.

    I have an upcoming court date for speeding. I mailed a discovery request to the courthouse, the DA's office, and the citing officer's agency, and then a few days later I mailed a motion to compel discovery to the courthouse and the DA's office. The DA responded with an email saying that they didn't plan on presenting any evidence except for the citation which I already have.

    Assuming I don't get any of the items I asked for in discovery, I was planning on moving to dismiss because I was not allowed to adequately prepare a defense. But that might not be a good idea since the DA told me they're not gonna use any new evidence so there's nothing to discover. So in that case, I'll move that the court order the prosecution to not present any evidence beyond what they said they're gonna present. But that also puts me in kind of an awkward position.

    In my cross-examination of the officer, I'd want to ask for documents that certify the radar gun used and the tuning fork and the officer's ability to use them. But then I'd have to say "No, that's inadmissible as evidence." And at the end I'd say that the prosecution has failed to prove to a legal degree of certainty that I was speeding, because their lack of evidence shed doubt on their claim, even though they're sitting with the evidence right there but without being able to use it.

    What's the best way to go about this? Should I just keep my mouth shut when it comes to asking for the documents, and then make a closing statement that the prosecution could provide no certification for the speed measuring device? If the prosecution isn't allowed to provide any evidence beyond the citation, should I just skip the cross-examination altogether? What's the best way to bring to the court's attention the lack of documents that the prosecution would need to prove their case?

    Thank you so much again.

  2. #2
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    Default Re: Getting a Dismissal if the Prosecutor Doesn't Provide Materials Requested in Disc

    From what I've previously seen, it appears that an Alabama traffic ticket is treated as a misdemeanor and is subject to the rules of criminal discovery. That rule requires the prosecutor to turn over or make available for inspection items "which are within the possession, custody, or control of the state/municipality", so you may want to review your response from the prosecutor to see if they have advised you to arrange with the police agency to review radar certification or maintenance records. An adequate response to discovery does not necessarily involve sending you a copy of a record.

    If you have filed and served a motion to compel discovery, and have properly noticed your motion for hearing, you will be able to address at the motion hearing your belief that certain discoverable materials were not provided to you. Did you notice the motion for hearing at the date of trial, or at an earlier date?

  3. #3

    Default Re: Getting a Dismissal if the Prosecutor Doesn't Provide Materials Requested in Disc

    Thank you for your response!

    Yes, according to my research I am charged with a misdemeanor.

    Here's the state's response to my discovery request, sent by the DA:
    At the trial in the above-cause, the State of Alabama intends to introduce information from the traffic citation, of which the Defendant has a copy, and will elicit testimony from the Alabama State Trooper about the details of the traffic stop. The remainder of the requested information by the Defendant is information which is maintained by another agency and not intended for use by the State of Alabama in this prosecution. The State of Alabama has no objection to the Defendant subpoenaing that requested information from the appropriate agency.
    So yes, they said they won't give it to me because they don't have it. That's why, after sending my request, I sent the motion to compel discovery so that the court can make the police agency provide the material.

    I didn't notice my motion for hearing. I just found an official form online for Alabama and filled it out and mailed it to the courthouse and the DA's office. I assumed the form would include everything it needed to. Do you think that might be enough, or is it only valid if I notice my motion for hearing? I never heard of that while doing my research.

    http://definitions.uslegal.com/m/motion-hearing/
    This suggests that a judge can grant a motion without a hearing. Is that true?

  4. #4
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    Default Re: Getting a Dismissal if the Prosecutor Doesn't Provide Materials Requested in Disc

    You can ask the traffic court clerk if your filing a motion without noticing it for hearing is adequate, or if you need to obtain a motion date and file and serve notice of hearing.

  5. #5

    Default Re: Getting a Dismissal if the Prosecutor Doesn't Provide Materials Requested in Disc

    I think it's far too late to mail anything else. My plan is to show up to court and move to dismiss and show the notarized copies as proof that I requested discovery and moved to compel discovery.

    Thank you kindly for your response!

  6. #6
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    Default Re: Getting a Dismissal if the Prosecutor Doesn't Provide Materials Requested in Disc

    Good luck with that.

  7. #7

    Default Re: Getting a Dismissal if the Prosecutor Doesn't Provide Materials Requested in Disc

    Was that sarcastic? Do you think my chances are bad?

  8. #8
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    Default Re: Getting a Dismissal if the Prosecutor Doesn't Provide Materials Requested in Disc

    What items are you trying to compel from the prosecutor?

    Did you file your motion to compel on the police agency? If so, for what?

    Keep in mind that operations manuals for radars and the like are not generally considered the property of the agency involved and you may have to subpoena the publisher for a copy if the agency believes they are unable or unwilling to lawfully provide you with a copyrighted version.

  9. #9

    Default Re: Getting a Dismissal if the Prosecutor Doesn't Provide Materials Requested in Disc

    I sent the form to the courthouse and the DA with the understanding that they'd know who to order these documents from.

    I asked for the officer's daily log and notes and training records for the radar gun, serial numbers and maintenance records and the police agency's regulations for the device and tuning forks, the FCC license, engineering reports for the highway, and yes, the operator's manual.

    But I also moved to subpoena the officer to bring his copy of the operator's manual to court, so even if they can't provide it for discovery because of copyright they can still bring it to court, right?

  10. #10
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    Default Re: Getting a Dismissal if the Prosecutor Doesn't Provide Materials Requested in Disc

    Quote Quoting protectingmyanonymity
    View Post
    I sent the form to the courthouse and the DA with the understanding that they'd know who to order these documents from.
    So ... you directed an order to compel discovery to the agency that has already told you that they do not have the information you are requesting? I am not sure whether that would permit the court to dismiss or prohibit testimony as a result. You might be directed to obtain an order to compel to be served on the law enforcement agency, instead.

    I asked for the officer's daily log and notes and training records for the radar gun, serial numbers and maintenance records and the police agency's regulations for the device and tuning forks, the FCC license, engineering reports for the highway, and yes, the operator's manual.
    I suspect the agency can provide everything but the operator's manual ... and, probably not an FCC license. An FCC license for what? They do not need to obtain a separate license for radar if they already have one for radio operations. Are you asking for their FCC license to operate their radios? (i.e. their communications division? Were you clear and specific on this request for their radio license?)

    But I also moved to subpoena the officer to bring his copy of the operator's manual to court, so even if they can't provide it for discovery because of copyright they can still bring it to court, right?
    I suppose he could ... but, I can't speak as to the stats of the law in AL.

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