Sent discovery request almost one month ago to fight a speeding ticket. I have not seen any documents yet. Hearing is Friday, Jan 8th. If I do not see the documents by Thursday, can I ask for dismissal?
Sent discovery request almost one month ago to fight a speeding ticket. I have not seen any documents yet. Hearing is Friday, Jan 8th. If I do not see the documents by Thursday, can I ask for dismissal?
Was your discovery request properly served (mailed by an adult othen than you) on the DA? If so you could ASK the judge to dismiss for lack of discovery or in leiu of that to compel discovery and grant a continuance.
Unfortunately the time to file a proper motion in the case has passed. See the Rules of Court on motions here: http://www.courtinfo.ca.gov/rules/in...nkid=rule4_111
Hopefully your discovery request included a request for a list of witness(es) ... I think you could make a persuasive argument that with a complete lack of discovery you had no knowledge of any witness that would be present at trial and therefore your defense was damaged in that you could not properly prepare for a defense. This will most likely get a continuance but always ask for a dismissal first.
Yes, I followed all the guidlines from your site here and served the DA by mail with copies to the court including a copy of the Proof of Service by Mail. I thought I had to give them up to the date of trial to comply.
Ignorance of the law is not a valid excuse. PC 1054.5(b) is pretty clear -not in anyway ambiguous- on the time period they are required to respond by... Which is also the time period that you should have made a timely motion to the court requesting some sort of relief.
Penal Code Section 1054.5.
(a) No order requiring discovery shall be made in criminal cases except as provided in this chapter. This chapter shall be the only means by which the defendant may compel the disclosure or production of information from prosecuting attorneys, law enforcement agencies which investigated or prepared the case against the defendant, or any other persons or agencies which the prosecuting attorney or investigating agency may have employed to assist them in performing their duties.
(b) Before a party may seek court enforcement of any of the disclosures required by this chapter, the party shall make an informal request of opposing counsel for the desired materials and information. If within 15 days the opposing counsel fails to provide the materials and information requested, the party may seek a court order. Upon a showing that a party has not complied with Section 1054.1 or 1054.3 and upon a showing that the moving party complied with the informal discovery procedure provided in this subdivision, a court may make any order necessary to enforce the provisions of this chapter, including, but not limited to, immediate disclosure, contempt proceedings, delaying or prohibiting the testimony of a witness or the presentation of real evidence, continuance of the matter, or any other lawful order. Further, the court may advise the jury of any failure or refusal to disclose and of any untimely disclosure.
Penal Code Section 1054.5
(c) The court may prohibit the testimony of a witness pursuant to subdivision (b) only if all other sanctions have been exhausted. The court shall not dismiss a charge pursuant to subdivision (b) unless required to do so by the Constitution of the United States.
The fact that the defendant “thought” he/she had until the trial date does not by any means obligate the court to dismiss... In light of the fact that the defendant failed to make a motion to compel in a timely manner, the defendant -not the court- limited the court's ability to afford him/her the remedies afforded him/her by the statute.
From your other thread:
That is the correct fine for 81 in 55 (or 26mph over the limit).
So, when I go into court on Friday, can I just say that due to discovery not being met I move for dismissal? I am confused by the post and not trying to find excuses for myself, I am not a lawyer and I just wanted to know if I could ask when I go in on Friday. Of course they can say no, but they could have said no anyway regardless of my request for discovery. Judges can do what they want pretty much as long as they do not violate my rights.
Also, if I have the same judge as at the "arraignment", can I ask for a continuance or dismissal based on what he said when I first pled not guilty? He said (laughing) "It is going to be hard to defend that you weren't going
81.", and, the entire courtroom laughed. I was mortified and appalled that a judge would act that way.
Well you could have had filed a preemptory challenge to have that judge removed from your case ... you can do that once with a judge ... but the time for that has passed.
You can ASK the judge to compel discovery he's just not obligated to comply. I would still ask and outline how the lack of disclosure has affected your case. It was still a willful act of the DA to fail to comply with statutory requirements. The DA should not have to be compelled by a court to follow the law it should do so willingly.
Excellent point... but it only works in an ideal world!! Let's face facts: DAs don't go to traffic court because it is economically unfeasible (i.e. it would cut into the state's profits to pay a DA to show up). Therefore, the DAs just ignore traffic cases. This frequently involves ignoring the rights of the defendants. However, of all the defendants who have their rights abused, it is likely that 98% of them won't challenge the issue. Furthermore, of the people who do challenge, it is likely that at least half of them will have a judge that will ignore them as well. So, 1% or less of all the traffic tickets will end up being dismissed becuase of the DAs' failure to do their jobs. Considering how much money is lost in this >1% of the cases and how much money the state saves by not paying DAs to attend court, it is a big economic winner for the state to trample your rights!!!The DA should not have to be compelled by a court to follow the law it should do so willingly.
There is case law that says you are not denied due process by the DAs absence in court... but NO WHERE does it say that the DA is absolved of all responsibility for prosecution of traffic cases. This is an absolute shame where the state weighs your rights as a defendant as an economic cost/benefit analysis.
By the way, for those who can't see the forrest becuase of all the trees, the statistics I used here are not actual, rather they are merely used to illustrate an obvious point.
I agree with you 100% on this point but I also think this works to a savvy defendants benefit (it did for me, although I wasn't quite aware of all the rules and made a few stumbles). Make sure to post bail in person to preserve the right to a speedy trial.
Make a proper discovery request, including a request for list of witnesses (per 1054.1a CVC). Make sure to disclose ALL of your evidence to the DA (also per 1054 sections) and then plan for it all to be ignored by the DA.
File a properly served motion within the time limits allowed by court (10 days before court) to dismiss (or in alternate compel discovery). As long as your motion has ANY legal merit there is no reason for a judge to deny it as there was no response from the DA, another willful choice. I would argue to the judge that had the DA had a legal objection that they could have filed a reply as allowed by court and they could have also showed up in court to address the matter -- since they do neither it shows that the People seem to have no real interest in pursuing this minor infraction matter.
At the very least a halfway fair judge should grant a continuance ... make it clear that it was impossible to prepare a defense without knowledge that a witness would be present to testify against you.
Sorry to detract from the original poster ... since he filed a legitimate copy to the DA I would still recommend that he verbally argue the issue to the judge. I did exactly this with my case (also didn't know about filing a motion at the time) and ended up eventually with a dismissal for speedy trial after the PD failed to follow the court's verbal order to disclose. This was a little tricky at my court the officers pretty much start talking as soon as we are done getting sworn in. I had to interrupt the officer (ie, talk over him) and tell the judge before we started I have "an issue with a lack of discovery". The judge made us wait until the next session (about 1 hr) while he finished the current cases and then reviewed my paperwork. When court started again he made me verbally justify everything I asked for and then he asked me if I was "ready to go ahead with trial". This is where I almost fell for it as I felt I was being denied my request to compel discovery. Luckily I told him not really as I felt the lack of discovery including items of exculpatory value hindered my ability to prepare a defense against the charge (at the time I didn't think about the witness issue).
The judge smiled, looked at the officer and said you have two weeks to disclose all the items he has requested and my bailiff will make you a copy of the discovery request. The officer had ridden to court with another officer from his PD (their city is about 20 miles from court), the other officer was none to amused at waiting for over an hour with him and when I went outside they both had a puzzled look on their face as they were looking at my discovery request.
SMBI,
Excellent story and excellent advice. However, the OP should stand ready to do an appeal as I actually had a judge tell me that my discovery request was improper because it was only made to the prosecuting attorney and not the CHP. When I told him that the prosecuting attorney was the appropriate party, as per the penal code, to serve the discovery request and there was no provision in statutory or case law that said I should serve the request on the CHP or that the CHP would be compelled to respond, the judge just said, "I know that... but you should have served it on the CHP anyway!" I swear that is true.... it is amazing how BLATENTLY traffic judges simply IGNORE the law. You likely will have to get your case to an appellate court to actually have the law applied.
I believe you but I still try to optimistically think that most judges are mostly impartial. From watching traffic court when I was preparing myself there were a heckuva lot of people found guilty but none of them gave any real argument, most even admitted to it but wanted to "give their side", had "not been cited in X decades" or claimed to have family members in the hospital -- none of which have any legal bearing on their case.