Discovery request

[horsepower]

Good God people, you are killing me.
UD, you're right, only 50% of this info is valid. Some great, some not so much.
An "Informal Discovery" form is still "Formal" for infraction cases, it is just presented as the former in form fashion versus an involved attorney drawn format of Interrogatory and Discovery.
Copies should be presented to the court with a proof of service stating that the PD was also served therein. In informal discovery, the DA does not need to be served. The DA absolutely has to be served Motions, along with the PD and the court.
Focus your service on the PD department. Double check in person to make sure that they received your request just to light a candle and eliminate any improper form excuses.
I can email you the informal discovery form if you PM me your email.

As per the TBD response of the Officer, that is public record after the TBD decision; You can go to the court and request to view the file and pay them to make copies for you. This can be used in a Trial De Novo and the officer cannot stray from facts he used to prove each element of the TBD case if the judge rules against you in the TBD.
Pay your ticket and be done with it if you are truly guilty or there isn't a glaring hole in their prosecution; Life is too short for this to absorb your days.

 

[Curt]

Good God people, you are killing me.
UD, you're right, only 50% of this info is valid. Some great, some not so much.
An "Informal Discovery" form is still "Formal" for infraction cases, it is just presented as the former in form fashion versus an involved attorney drawn format of Interrogatory and Discovery.
Copies should be presented to the court with a proof of service stating that the PD was also served therein. In informal discovery, the DA does not need to be served. The DA absolutely has to be served Motions, along with the PD and the court.
Focus your service on the PD department. Double check in person to make sure that they received your request just to light a candle and eliminate any improper form excuses.
I can email you the informal discovery form if you PM me your email.

As per the TBD response of the Officer, that is public record after the TBD decision; You can go to the court and request to view the file and pay them to make copies for you. This can be used in a Trial De Novo and the officer cannot stray from facts he used to prove each element of the TBD case if the judge rules against you in the TBD.
Pay your ticket and be done with it if you are truly guilty or there isn't a glaring hole in their prosecution; Life is too short for this to absorb your days.

How would you go about receiving the officer's response for TBD? Are the clerks of the court obligated to provide you a copy of the officer's document, and could they fax it if requested?

 

[horsepower]

As stated, the easiest way and the only way that I am aware of is to go to the court with the case file number and view it in person. Yes, they are obligated to provide copies when requested.
However, Clerks of court are not personal secretaries and the TBD file will have multiple pages plus you have to pay for copies and specify the pages you want; the Clerks cannot offer legal advice by law and will not assist you in going through the paperwork.

 

[goodness-707]

In informal discovery, the DA does not need to be served.

Do you have law or case law to support this claim? I've talked with some lawyers that state the exact opposite. PC1054 is pretty clear about the roles of prosecuting attorney and investigating agency, and it clearly states that it's the prosecuting attorney's responsibility.

I'm no trying to be difficult, I'm genuinely curious.

 

[horsepower]

Do you have law or case law to support this claim? I've talked with some lawyers that state the exact opposite. PC1054 is pretty clear about the roles of prosecuting attorney and investigating agency, and it clearly states that it's the prosecuting attorney's responsibility.

I'm no trying to be difficult, I'm genuinely curious.

After reading the list of items OP is requesting, I have to agree with you that the DA would also have to receive copies as well, especially if LIDARCertfications and survey maps were requested. My bad.
However, as Rel pointed out in simple infraction cases the issuing agency normally just forwards an informal discovery request to the DA. This is fairly standard for informal discovery despite codes such as pc1054. They absolutely will not do this with Motions as motions are argued by attorneys, not law enforcement.

 

[Warrior Princess]

Traffic court is like small claims court where the judge is the jury and the officer is the DA and Witness and you are the defendant. However there is still evidence law. But there is no DA on the case. Infraction cases only deal in fines not jail time so the reason for the state to keep costs down, but the basic laws and rules of court are the same. Just what ever you do attempt to make a case for appeal and make sure you well document your actions of discovery and have another unrelated party do all you service for you and provide you with a proof of service to file at the court in the record.

That is my understanding. I am not an attorney, but do have history in law and procedure.

Rules of court procedure can be given to you by the clerk but not legal advice or what form to fill out.

 

[UDRider]

Thank you for all the replies. They are very helpful. Special thanks to Danieala for sending all the forms with examples.

 

[goodness-707]

Traffic court is like small claims court where the judge is the jury and the officer is the DA and Witness and you are the defendant.

This one I know is actually not correct.

The prosecutor does not need to be present in the courtroom for traffic cases (people v Carlucci), but the officer is most definitely not the prosecution (nor DA, etc); the officer is a only witness for the prosecution called by the judge, who in that capacity is acting on behalf of the not-present prosecutor.

However, as Rel pointed out in simple infraction cases the issuing agency normally just forwards an informal discovery request to the DA. This is fairly standard for informal discovery despite codes such as pc1054. They absolutely will not do this with Motions as motions are argued by attorneys, not law enforcement.

I think you are answering a slightly different question than I am asking...

I know that people often do request discovery of the agency. Everything I've seen and read suggests that this is a courtesy, but not something mandated by law. In general, the advice I've seen from attorneys seems to break down as follows:
- if you want a response to discovery, send it to the agency and DA (or designee)
- if you don't want a response, so as to justify a court order (to suppress, compel, etc.), then you should only send it to the DA because they are far less likely to actually respond.

In other words, you may gain some tactical advantage by not requesting discovery of the agency. Of course, you still need to know how to exploit that advantage (ie pretrial instead of at-trial motions).

I keep hearing from folks that you are "required" to send discovery requests to the agency, but I can find no such legal requirement anywhere. That's what I was asking... is there such a requirement? I know it's common, but that's a different question.

Hopefully that makes a bit more sense.

 

[Ol' Gravy Leg]

Traffic court is like small claims court where....

No, no, no. Worst simile ever.

Everything I've seen and read suggests that this is a courtesy, but not something mandated by law.

Not a courtesy. It's mandated by law. Penal Code Section 19.7 incorporates into infractions procedure all statutory law (and even constitutional law no per se applicable to infractions) absent an express statutory declaration to the contrary (People v. Mathews. 139. Cal.App.3d 537, 188 Cal.Rptr 796 (1983)).

- if you want a response to discovery, send it to the agency and DA (or designee)
- if you don't want a response, so as to justify a court order (to suppress, compel, etc.), then you should only send it to the DA because they are far less likely to actually respond.

In a nutshell, yeppers. To comply with PC 1054-1054.1, a copy must be served to the DA. However, this usually results in a form letter response stating "We are unable to comply with your request...yada".

If the discovery request is to be fufilled, it will be by the LEO agency (evidence officer? IDK).

In other words, you may gain some tactical advantage by not requesting discovery of the agency. Of course, you still need to know how to exploit that advantage (ie pretrial instead of at-trial motions).

Correct; yet, it really should be a bona-fide attempt. One can also take advantage at trial or even appeal. But, the judge will think a whole lot more of you doing it on his/her hearing's calander.

Anyone have a billing/matter number for this?

I'm curious what you do, radvas?

 

[Warrior Princess]

the officer is a only witness for the prosecution called by the judge, who in that capacity is acting on behalf of the not-present prosecutor.

I think I can agree with you on that.

People v. Carlucci, 590 P. 2d 15 - Cal: Supreme Court 1979
http://scholar.google.com/scholar_case?q=carlucci&hl=en&as_sdt=4,5&case=10235597376457116356&scilh=0

 

[goodness-707]

Not a courtesy. It's mandated by law. Penal Code Section 19.7 incorporates into infractions procedure all statutory law (and even constitutional law no per se applicable to infractions) absent an express statutory declaration to the contrary (People v. Mathews. 139. Cal.App.3d 537, 188 Cal.Rptr 796 (1983)).

Thanks for the info. That's the sort of thing I was after. I'll go read that stuff.

I'm curious what you do, radvas?

I work in the internet video streaming business. I have kind of a weird hybrid job that involves a wide range of activities all aimed at helping folks that make TVs and set top boxes integrate our streaming software. It's a pretty cool gig.

Between my own driving and my teenage son, we've spend a little time in the court system lately. arty I got a ticket last year, and he got one early in the year. When he got his second speeding ticket in the summer, I told him he was either gonna have to get a job to pay for it, or fight it and prevail in court.

He opted to fight it, and I will say it's turned out to be an interesting learning experience for both of us. We've read and discussed laws, decisions, court rules and procedures, and of course piles of free legal advice. That's where this question comes in. I've seen conflicting advice on this discovery issue, and never really understood the "requesting of the agency" bit.

Again... thanks for the info.

 

[goodness-707]

Also... his case is long since over, but there's so much complexity in all of this (law, precedure, etc.) that plenty of curiosity has remained. So here I am, asking people that know.

 

[horsepower]

Not a courtesy. It's mandated by law. Penal Code Section 19.7 incorporates into infractions procedure all statutory law (and even constitutional law no per se applicable to infractions) absent an express statutory declaration to the contrary (People v. Mathews. 139. Cal.App.3d 537, 188 Cal.Rptr 796 (1983)).
In a nutshell, yeppers. To comply with PC 1054-1054.1, a copy must be served to the DA. However, this usually results in a form letter response stating "We are unable to comply with your request...yada".


Correct; yet, it really should be a bona-fide attempt. One can also take advantage at trial or even appeal. But, the judge will think a whole lot more of you doing it on his/her hearing's calander.

Well done, you beat me to it.
Also, remember that rules of court vary from county to county and that if process is not in proper form for the clerk of court's knowledge of procedure- right or wrong- you won't get far in getting a Motion on the Calendar.
Sounds like some of you have a copy of Fight Your Ticket & Win, and that Radvas has read it, reviewed the Penal codes, quoted the Case law and would truly make a good attorney.

Some of the best real world advice I can give is to confirm what Ol Gravy leg said:
You have a better shot of a Motion Calendar judge granting you a Motion or a dismissal than a Traffic Judge or Arraignment Judge. In traffic court, the judge has worked with the Leos over and over, legal or not, a certain amount of understandable judicial bias ensues.

 

[horsepower]

Here's some more to the points above:
http://www.cand.uscourts.gov/localrules/criminal


Penal Code 1054.5 (discovery)
(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.


A savvy judge will use his discretion to comply with the 30 day rule of discovery and just do a continuance of the matter 30 days out.

If you pled at arraignment you could immediately then ask for a Motion to dismiss due to the speedy trial statute then and there. If you waived your right, you only wasted a bunch of time trying to play a game that is far more successful as an attorney than as a pro per (self-representation in propria persona).

In pro per (without an attorney), As gravy said, the judge is going to want to see that you made due dilligence to compel a response and not just sneak by a non response from the DA or the issuing agency providing the discovery.

Tactics like these are exactly what TicketBusters and other online sites do for you; They merely take advantage of possible legal loopholes in statutes and file Motions to argue these points. Their only advantage is knowledge of all standard possible loopholes and that they have attorneys representing on the cookie cutter Motions. A truly good pro per can do a better job, but the average pro per will be frustrated or devoured in the legal system. Fight Your Ticket makes it sound so easy, in reality you have to make it a full time job to beat a ticket and then you have to be a good enough "attorney" representing yourself to not have a fool for a client. :0

However, if the judge attempts to allow the discovery at the trial, you should object, whether or not you filed a Motion; it violates Discovery rules and your rights to prepare for your trial without prejudice.

 

[horsepower]

This one I know is actually not correct.

The prosecutor does not need to be present in the courtroom for traffic cases (people v Carlucci), but the officer is most definitely not the prosecution (nor DA, etc); the officer is a only witness for the prosecution called by the judge, who in that capacity is acting on behalf of the not-present prosecutor.

I think I can agree with you on that.

People v. Carlucci, 590 P. 2d 15 - Cal: Supreme Court 1979
http://scholar.google.com/scholar_case?q=carlucci&hl=en&as_sdt=4,5&case=10235597376457116356&scilh=0

Are you agreeing that it is the Judge who is acting on behalf of the not present Prosecutor?
Radvas, is that your belief or did you simply use poor sentence structure?


If you believe that the judge can legally act as the not-present prosecutor than you're wrong. That case may have had that happen...but case law requires that ALL of the case and its case law and its amendments be researched to confirm (or quote as fact) current law.

The judge can't act on behalf of anyone. He must remain unbiased to either party. If the judge were to lead and question as he did in the Carlucci trial, then it would be grounds for dismissal for the Judge acting as prosecutor and Judicial Bias.

People v Carlucci (1979) blah blah la ti da allowed trials without a prosecutor as long as the conduct of the court was fair and unbiased.

But same case quoted by all the appellate court then allowed for appeal using a myriad of other case laws that barred the judge from acting as a prosecutor in a trial. If a traffic court judge acts as prosecutor, you can file a Motion to dismiss for the judge doing so, or file an appeal in the appellate court which will reverse any guilty finding by said judge. So don't ever let a judge act as prosecution if the leo doesn't show.
Finally, even without a prosecutor, without a Leo the case can be dismissed as a "lack of prosecution" so in the end, the leo is more of a prosecutor than either the judge or the DA. Last point, if the Leo doesn't show, do not allow the judge a continuance without making a formal objection and ask for a dismissal due to a lack of prosecution. If you give the judge the out without enforcing your rights and the law, the judge will take it as permission without objection.

In practice, judges tend to make far more allowances for attorney represented clients than those who act in pro per. That's why I research judges and their biases for peremptory challenges. Getting it out of a traffic court Judges hands and into a “stricter view of law” Judge is often necessary if OP wants to win on points of law versus actual right and wrong facts, lol. In effect it’s asking for a Pinch Hitter and it’s perfectly legal.

ADA has offered OP some great general advice in his posts btw.

 

[goodness-707]

Are you agreeing that it is the Judge who is acting on behalf of the not present Prosecutor?
Radvas, is that your belief or did you simply use poor sentence structure?

Probably poor sentence structure. I didn't mean to imply that the judge was acting as prosecutor, I only meant to say that the judge calls the witness for the prosecution (the officer) on behalf of the prosecutor (who is not present). I didn't mean to imply that the judge does anything else to act as prosecutor. I was simply refuting the claim that the "officer is the DA" in traffic cases.

In practice, judges tend to make far more allowances for attorney represented clients than those who act in pro per. That's why I research judges and their biases for peremptory challenges. Getting it out of a traffic court Judges hands and into a “stricter view of law” Judge is often necessary if OP wants to win on points of law versus actual right and wrong facts, lol. In effect it’s asking for a Pinch Hitter and it’s perfectly legal.

I've heard this before. Totally makes sense.

 

[UDRider]

However, if the judge attempts to allow the discovery at the trial, you should object, whether or not you filed a Motion; it violates Discovery rules and your rights to prepare for your trial without prejudice.

Can you clarify this point? Do you mean defend requests something, like officers ticket notes, or traffic survey, and judge says "here you go, read and continue."?

ADA has offered OP some great general advice in his posts btw.

Yep.

 

[Ol' Gravy Leg]

I work in the internet video streaming business.

Cool. I sensed you did something technical.

Also, remember that rules of court vary from county to county and that if process is not in proper form for the clerk ....

Good point. I had a motion kicked back by a clerk because I had the wrong department listed.

Can you clarify this point? Do you mean defend requests something, like officers ticket notes, or traffic survey, and judge says "here you go, read and continue."?

Your on the right track. She means that the judge during your trial (or just prior to) might attempt to fulfill your discovery request by having copies made of the germane documents then and there.

So, yeah. It is pretty much "here you go, read" and let's proceed with the trial. However, the infringes your right to adequately prepare for trial. One should always object and request at least several days to prepare a defence. (This is also where right to speedy trial might help, provided you did not waive.)

Not sure if Daniela mentioned this, but in discovery, you also have a duty to disclose your notes and/or pictures to be used in your defense (or entered into evidence) to the prosecution.

 

[horsepower]

You are on the right track. She means that the judge during your trial (or just prior to) might attempt to fulfill your discovery request by having copies made of the germane documents then and there.

So, yeah. It is pretty much "here you go, read" and let's proceed with the trial. However, the infringes your right to adequately prepare for trial. One should always object and request at least several days to prepare a defence. (This is also where right to speedy trial might help, provided you did not waive.)

Not sure if Daniela mentioned this, but in discovery, you also have a duty to disclose your notes and/or pictures to be used in your defense (or entered into evidence) to the prosecution.

Agreed. Disclosure is a 2 way street and I believe that the informal discovery request indeed asks the defendant to disclose and remit their evidence and witness list as well.

Discovery must be responded to within 15 business days of receipt of due process and requires 30 days before trial from mailing date back to allow you "the best chance at a fair defense at trial". Less than that, and your "rights" are being compromised.

Always remember that a Judge WILL NOT help you see your case through so you must know when to act as an attorney would to preserve your rights:

This includes objections and requests for dismissals based on those objections:


Examples:

I was in court the other day and a girl's speeding case was called. The judge noted that the Leo was a no show and noted that he was on vacation.

He then, after consulting the officer's schedule with the clerk, told the young girl that he was going to give the officer another chance and continued the case 30 days.

Had the girl known her rights (and pleaded at arraignment) she could have had a few Ace cards to throw down.
1) A request to dismiss for speedy trial law.
2) A request to Dismiss for a lack of Prosecution, stating that she had just driven X hours and missed work and done due dilligence and therefore it would be prejudiced to continue.
3) If Judge refused either Motion, she could easily Appeal (1 form) as Judge acted on behalf Prosecution and in Bias. or....
4) She could file a peremptory challenge and boot the judge for another as this is a "no win" type judge. (1 form request to court that can be faxed).

Final inside scoop: if the judge takes your case "under advisement", but DOES NOT SPECIFICALLY ASK YOUR PERMISSION TO DO SO and comes back with guilty in the mail (or more than 6 hours) YOU WIN anyways....law states that sentencing for traffic cases must be heard then and there unless permission is given to be waived. You win by filing an appeal. These are all things lawyers know and will use to win your case..........................but by then expect a $1500 bill and the some.
Judges take traffic cases under advisement all the time. Most people will never think anything of it and NOT object simply because they don't know the constantly changing house of mirrors of law. If your cause is righteous, be pro active.


The law is not rocket science. These tips are NOT intended as hail mary's to beat out a straight forward ticket. The Leos are too important in this world to put up with the daily crap they must endure on the streets and against high priced attorneys in a court of law.


Please again, If you "did the deed"- sped, drank, texted and nothing was done illegally or unlawfully to "stick it to you" by the system, then just pay it and don't waste time. Don't clog up the court system or hold up a Leo who could be out there getting the bad guy.

 

[goodness-707]

Thanks for the practical and experience based discussion. It's interesting and enlightening.