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  1. #1

    Default Does an Officer Have to be Listed as a Witness

    My question involves a traffic ticket from the state of: CA

    Police agency responded to my Informal Discovery Request. Under "names & address of prosecution witnesses," police agency put "none."

    Shouldn't my citing officer have been named as a witness?

    "Whether or not the People provide a prosecuting attorney, the citing officer who testifies as to the circumstances of the citation is a witness, no more, no less."
    People v. Marcroft (1992) 6 Cal.App.4th Supp. 1 , 8 Cal.Rptr.2d 544

    Basis for a motion to suppress citing officer's testimony, or more like just a small error that a judge would overlook?

  2. #2
    Join Date
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    Default Re: Informal Discovery Disclosure: Prosecutorial Witnesses

    An interesting - and potentially erroneous - response by the agency. You can try to move to suppress, but it may be a crap shoot as to whether or not the court accepts it or not.

    Be prepared to proceed to trial all the same.

  3. #3
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    Default Re: Informal Discovery Disclosure: Prosecutorial Witnesses

    Remember, this is not a game where failing to dot an I or cross a T gets you a free pass.

    Here's what the judge is going to think to himself when he considers whether this technical error denied you a fair trial.

    What is the purpose of disclosing the names and addresses of witnesses? It is so the defense can interview them and seek evidence of value to their case.

    Is it reasonable or more appropriate for the police to categorize the officer as an "Arresting Officer" rather than as a "Witness" ?

    Irrespective of how he is categorized (Arresting Officer/Witness), should the Defendant reasonably anticipate that the officer will testify?

    Did the Defendant make any attempt to interview the officer to seek information that would assist in his defense?

    Knowing the general policy of most departments is for their officers not to participate in out of court interviews in criminal matters, and that the officer would most likely decline to speak with the Defendant, would this error have caused irreparable harm to his defense?

    Considering all that, tell me how you think the judge will rule.

  4. #4
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    Default Re: Informal Discovery Disclosure: Prosecutorial Witnesses

    Quote Quoting EJay
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    This is not an example of failing to dot an I or cross a T. This is an example of saying "We will not call witnesses at trial", then calling a witness.
    That's not the legal standard applied by the court when reviewing what is obviously a mistake by the police agency. "[T]he exclusion of testimony is not an appropriate remedy absent a showing of significant prejudice and willful conduct motivated by a desire to obtain a tactical advantage at trial." People v. Gonzales (1994) 22 Cal.App.4th 1744, 1758, 28 Cal.Rptr.2d 325.

    It is difficult to convince a court that you were unfairly prejudiced by your belief that the citing officer would not be testifying at trial. Perhaps you'll be lucky and get a judge who is tired of sloppiness by the police agency, but if the court looks at the governing legal standard it's difficult to conceive of facts that would support exclusion, let alone that would not be cured by a continuance (if sought by the defendant) instead of dismissal.

    As a trial court's decision to impose (or not impose) a discovery sanction is reviewed for abuse of discretion, although raising the issue would preserve it for appeal, the odds of prevailing on appeal are vanishingly small due to the governing standard of review (that the court's decision falls outside of the bounds of reason).

  5. #5
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    Default Re: Informal Discovery Disclosure: Prosecutorial Witnesses

    The fact that the citing officer is "known" at the time of an obvious clerical error does not change the legal standard to be applied, nor does it transform that error into something that is prejudicial to the defense. If the defendant wants to try to concoct an argument that would make this obvious error "willful", he is free to do so -- but that also won't change the governing legal standard.

    You don't understand what it means to be materially prejudiced. It is not a question of whether a trivial and obvious error may result in your losing your case. It's about being materially impaired in your ability to prepare a defense.

    If the defendant does not request a continuance, then there is no need for the court to grant one. If the defendant does request a continuance, it should go without saying that there would be no speedy trial issue.

    The standard of review for abuse of discretion is not tossed out the window for traffic court cases.

    You should not post stuff that you make up on the fly in this forum, even if you sincerely believe it's the way things should be. That sort of stuff only belongs in a social forum.

  6. #6
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    Default Re: Informal Discovery Disclosure: Prosecutorial Witnesses

    Quote Quoting Mr. Knowitall
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    You don't understand what it means to be materially prejudiced. It is not a question of whether a trivial and obvious error may result in your losing your case. It's about being materially impaired in your ability to prepare a defense.
    Correct. And here the OP knows the cop cited him and despite the response of no witnesses the OP knows or should know that the cop is likely to testify. The OP has the information needed to prepare a defense to counter the anticipated claims of the cop. This is not a situation where the prosecutor will show up with a witness that was previously completely unknown to the OP. The whole purpose of disclosing the witness list is so that the other side will be informed of possible witnesses he or she did NOT previously know about so he or she won't get blindsided by that at trial. If you know about a potential witness, you should always prepare for that.

  7. #7

    Default Re: Informal Discovery Disclosure: Prosecutorial Witnesses

    Thanks for good info.

    Police agency partially responded to my IDR, claiming I would not only need to pay $ for a copy of a RADAR training manual, but also submit a subpoena duces tecum. But, now that police agency has claimed that "no witnesses" will testify, I will not request the training manual. The claim of "no witnesses" will, therefore, prejudice my case, since the manual could've provided me with information valuable to my defense.

    A "seasoned, high-ranking" cop fulfilled my discovery request, demonstrating sophisticated knowledge of law by objecting to one of my inquiries with references to specific penal/evidence codes. Besides "none" under "witnesses," police agency's response contained no other "discrepancies." So I must assume that the claim of "no witnesses" was a deliberate tactic, one meant to mislead me into under-preparing for trial.

  8. #8
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    Default Re: Informal Discovery Disclosure: Prosecutorial Witnesses

    Quote Quoting superXpert
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    but, now that police agency has claimed that "no witnesses" will testify, I will not request the training manual. The claim of "no witnesses" will, therefore, prejudice my case, since the manual could've provided me with information valuable to my defense.
    Realistically speaking, no, it won't. You have failed to draw any rational connection between your choice not to seek the training manual, which you can expect the court to regard as having at best trivial relevance to your defense, and the omission of the officer from the witness list.

  9. #9

    Default Re: Informal Discovery Disclosure: Prosecutorial Witnesses

    I'll keep it "general," saying I would've done much more research in days leading up to trial. That way, I could claim "harmful error."

    better?

  10. #10
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    Default Re: Informal Discovery Disclosure: Prosecutorial Witnesses

    Not really, no.

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