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  1. #1
    Join Date
    Sep 2009
    Posts
    12

    Default Showing Prejudice

    This Ticket is In King County of Washington State.

    I have a quick question about IRLJ 3.1 B

    (b) Discovery. Upon written demand of the defendant at least 14 days before
    a contested hearing, filed with the court and served on the office of the
    prosecuting authority assigned to the court in which the infraction is filed,
    the plaintiff's lawyer shall at least 7 days before the hearing provide the
    defendant or the defendant's lawyer with a copy of the citing officer's sworn
    statement and with the names of any witnesses not identified in the citing
    officer's sworn statement. If the prosecuting authority provides the citing
    officer's sworn statement less than 7 days before the hearing but not later
    than one day before the hearing, the citing officer's sworn statement shall be
    suppressed only upon a showing of prejudice in the presentation of the
    defendant's case.
    If the prosecuting authority, without reasonable excuse or
    justification, fails to provide the citing officer's sworn statement, the
    statement shall be suppressed. No other discovery shall be required. Neither
    party is precluded from investigating the case, and neither party shall impede
    another party's investigation. A request for discovery pursuant to this section
    shall be filed on a separate pleading.


    How do you show prejudice in your presentation?

  2. #2

    Default Re: Showing Prejudice

    Judge I was going to consult with an attorney on X day but because I did not receive discover per rule 3.1 B within X days of written demand I was unable to meet with the attorney.

    Judge, "where is your attorney? "

    You, "I do not have an attorney I only sought for a consultation."

  3. #3
    Join Date
    Jan 2006
    Posts
    188

    Default Re: Showing Prejudice

    It seems to me that you were prejudiced by YOUR decision to restrict yourself to only one attorney (or are you saying that there is only one attorney in town) not the delay in receiving discovery.

  4. #4
    Join Date
    Dec 2004
    Location
    Seattle
    Posts
    3,577

    Default Re: Showing Prejudice

    I agree with Jojo, plus, if you're going to use someone else's ideas, at least give them credit. I believe that was Brendan's.

    Barry

  5. #5
    Join Date
    Sep 2009
    Posts
    107

    Default Re: Showing Prejudice

    If you didn't get the SMD certificate in discovery you could possibly say that you didn't have enough time (because of your busy work schedule, etc) to get down to the court and look over the certificate. I'd imagine that might be a hard sell but you never know if you get a judge that's slightly lienant it might work. I'd be careful in what you say though you don't want to commit purgery!

  6. #6
    Join Date
    Feb 2010
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    1,383

    Default Re: Showing Prejudice

    Quote Quoting jojo
    View Post
    It seems to me that you were prejudiced by YOUR decision to restrict yourself to only one attorney (or are you saying that there is only one attorney in town) not the delay in receiving discovery.
    "Your honor, I may have been able to consult with this attorney after receiving the documents as a last resort, but I NEVER received the documents."

    The delay in receiving any legal document is almost always prejudicial. Because you have not seen the evidence against you it is hard to prepare a defense. You might be able to just say that.

    "I'm sorry, your honor, but how am I expected to prepare a defense if I am unable to see the evidence that will be used against me? My motion for dismissal is with prejudice that the prosecution does not want me to see the evidence against me."

    I would think that a judge that does not grant dismissal or at least a continuance per 3.1(B) would have their judgement overturned on appeal. It would seem to me like classic kangaroo court and the conviction could be overturned on basis that you received a biased trier of fact.

    But appeals suck. It's more paperwork and a 100+ filing fee. So best to be prepared. (Like a Boy Scout)

    Brendan

  7. #7
    Join Date
    Sep 2005
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    Behind a Desk
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    98,846

    Default Re: Showing Prejudice

    Quote Quoting BrendanjKeegan
    View Post
    "Your honor, I may have been able to consult with this attorney after receiving the documents as a last resort, but I NEVER received the documents."
    Am I supposed to be looking at another thread, about consulting a lawyer? I'm not seeing anything about that in this thread. I guess we're supposed to assume that a timely demand for discovery was made, and that something wasn't provided.
    Quote Quoting BrendanjKeegan
    The delay in receiving any legal document is almost always prejudicial. Because you have not seen the evidence against you it is hard to prepare a defense. You might be able to just say that.
    That's not correct. A delay in the provision of a document can only be prejudicial if it is material to the issue before the court. Further, even if material, the delay or non-provision of a document may not be prejudicial if it was available to the defendant from another source. If the defendant obtains the document late and cannot explain how the late provision detrimentally affected his ability to present his defense, or if he cannot explain how a document he requested even relates to his defense, I don't see how he could show prejudice in relation to non-production or late production of that document.

    Where am I supposed to be looking to guess what document supposedly was not provided in a timely manner?

  8. #8
    Join Date
    Dec 2004
    Location
    Seattle
    Posts
    3,577

    Default Re: Showing Prejudice

    Brendan, this is NOT about NEVER receiving the materials. It's about receiving them less than 7 days from the hearing, pursuant to IRLJ 3.1 (b).

    Suppose you receive them with SIX days remaining. It would be REALLY hard to show that that one day was prejudicial. Now, if you receive them, say, the day before the hearing, you could claim that that did not leave you with enough time to examine the materials, go to the courthouse to view the SMD certificate and prepare a defense. So, a LOT will depend on WHEN you received them.

    Your "the prosecution does not want me to see the evidence against me" only stands if you NEVER receive the materials. But, then, the suppression of the officer's sworn statement is almost automatic. But, if you do receive the material, albeit late, you'd just sound stupid making such a statement.

    And, no, if the judge does not grant the dismissal, you'd be hard-pressed to have that overturned on appeal. A judge's discretion is almost never second-guessed by an appellate court, absent "manifest abuse of discretion". And it's up to the judge's discretion as to whether you successfully demonstrated prejudice. And if a judge says, "'I may have been able to consult with this attorney' is not a demonstration of prejudice", I don't think that qualifies as "manifest abuse".

    Barry

  9. #9

    Default Re: Showing Prejudice

    Quote Quoting blewis
    View Post
    I agree with Jojo, plus, if you're going to use someone else's ideas, at least give them credit. I believe that was Brendan's.

    Barry
    yes props Brendan.

    Also how does the court know when you recieved the discovery? Say the PA mails it 15 days before the court date and then files the discovery with the court a few days before the court date. No certified mail or date is on the letter.

  10. #10
    Join Date
    Feb 2010
    Posts
    1,383

    Default Re: Showing Prejudice

    Barry, thanks, I didn't see that it was received a few days before court. I thought it said never. My bad.

    Quote Quoting Mr. Knowitall
    View Post
    That's not correct. A delay in the provision of a document can only be prejudicial if it is material to the issue before the court. Further, even if material, the delay or non-provision of a document may not be prejudicial if it was available to the defendant from another source. If the defendant obtains the document late and cannot explain how the late provision detrimentally affected his ability to present his defense, or if he cannot explain how a document he requested even relates to his defense, I don't see how he could show prejudice in relation to non-production or late production of that document.
    It would be prejudicial because the officer's sworn statement IS material to the evidence presented by the prosecution. Yes, I believe that some courts will let you look it up, but not the day of the hearing.

    If you explain before the court that you never received the statement, I would think that you have enough of an explanation that it detrimentally affected your ability to prepare a defense.

    Explaining that you received it later than the prescribed date would be a bit harder.

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