New 5-24-03, updated 1-18-08:
Getting Government Records
( Subpoenas, Discovery, Public Records Act, Hearsay, Traffic Accident Stats )
When you ask for records, a few cities provide the info
without too much of a fuss. But many cities throw up
all kinds of barriers, wasting a lot of their time, and
taxpayers' money, in an infantile game of "Keep Away."
Asking Nicely
At least one police department will email you a copy of
the photos and the video, just because you phoned them and asked!
Maybe that idea will catch on with other departments. When you
phone "your" PD (the # is usually on the back of the ticket) you'll probably get an
answering machine; you could leave your request, and your email
address, on the machine.
Many police
departments have a website that has all the photos and video on it.
You go to the website, identify yourself by typing in the ticket # and
the license plate #, and you get to see the video. Keep in mind,
though, that it may not be the full 12 seconds of the video, or may
have a reduced resolution compared to their official copy.
Some other cities go
out of their way to try to keep you from getting the photos. Most
employ delaying tactics, to grind you down, wear you out. Some go
further, and might tell you (verbally only, never in writing) things
like, "Legally, we cannot give you a copy."
If someone said that to me, I would be tempted to ask them, "Would you please repeat that after I start my tape recorder?"
Some cities issue tickets that don't display the Late Time, even though their Nestor systems clearly have the capability to do so. Other cities, those that are served by ACS, issue tickets with illegible Late Times. A possible motive for these cities to hide the Late Times could be so that they can cite for very short Late Times (like 0.1 second) without widespread criticism (including some from judges) about "Mickey Mouse" tickets. If you phone the PD to ask what your Late Time was, they may say that to get that information, you must come in to the police station. The visit to the police station serves to grind you down, make it harder for you to fight your ticket. See Defect # 5 and the big How to Read Your Late Time box in Defect # 7 for more information.
Discovery
Discovery
is the process by which you are allowed to get, in advance, a
copy of everything the city plans to use against you at your
trial - including the photos and video! (Sometimes the city's
website where they direct you to go to look at the photos from your
ticket does not contain all the photos they have!) If you are thinking about
fighting your ticket, you should
definitely file a
Discovery request - without delay. Filing a Discovery request
puts an end to many (but not all), of the city's delaying tactics.
Fight Your Ticket
, at pages 10/5 - 8, 10/21 - 23, 10/26, 10/30 - 41, 11/13 and 16/5 (or,
in the new 12th Edition, pages 155 - 159, 174, 176, 179, 185 - 195, 229
and 320), tells how to
write and serve a Discovery, but please note -
(1) Timing: I suggest that you file without delay. Ideally, you should file for Discovery at least 20 days before your arraignment. The latest date to file is generally 30 days before the trial date.
|
Is It Ever Too Early to Ask for Discovery?
Some authorities have been telling traffic ticket defendants that they cannot request discovery until they have been arraigned and have entered their plea. Baloney! Since the laws regulating the Discovery process (Penal Code Section 1054) do not tell us how early we may request discovery, we have looked to other sources: 1. The very authoritative California Criminal Defense Practice, by Matthew Bender (available at every law library), says: "Neither Penal Code Section
1054.5(b) nor Section 1054.7, nor any other provision within Sections
1054 through 1054.7 specifies when informal discovery may first be
requested, nor do any of these provisions prohibit the parties from
requesting informal discovery at the time of arrest, or at the time of
the filing of a criminal complaint, or at the time an indictment is
filed, well before any arraignment or entry of plea has taken
place." (Bender, Section 70.09[1][b] )
2. One Superior Court has published Discovery rules saying: "An informal discovery request can be made anytime after a case is filed." (See San Mateo local rules, in box below.) |
(2) The format: Your request does not
need to be on the official-looking form shown in
Fight Your Ticket - these requests
are most often done informally, via an ordinary business letter (see
sample below, in the 'wallpaper' area of this page).
(3) Who to serve: Some cities will tell you (verbally, or in writing) to serve your Discovery on the police. Here's an example of that:
|
(These rules
are provided by highwayrobbery.net solely as an example of local court
rules. Some of these rules may not be correct, or proper.)
Rule 9.9 Traffic Pre-Trial Discovery Motions. An informal discovery request can be made anytime after a case is filed. 1. The defendant or his/her attorney must make this request in writing and the original is to be filed with the police agency that issued the citation. 2. The citing police agency has 15 days to respond and provide the requested material and information. 3. A copy of the informal request shall be filed with the District Attorney’s Office who in turn will provide the Court Clerk’s office Traffic Division with a copy of the request. 4. If the police agency does not respond to the request within 15 days of service, the defendant may seek a court order to compel Discovery. 5. The motion to compel discovery must be filed at the earliest possible date and at least five court days prior to the trial date. Written notice must be served on all parties at least five court days prior to the hearing. The original written motion to compel discovery and the proposed order should be filed in the Court Clerk’s office Traffic Division with a copy served on the police agency that issued the citation and the District Attorney’s Office. The motion should indicate a hearing date that is before the trial date. From Santa Mateo County Local Court Rules, amended July 1, 2007, online
at: http://www.sanmateocourt.org/localrules/July_2007.pdf (These rules are provided by highwayrobbery.net solely as an example of local court rules. Some of these rules may not be correct, or proper. To look for local rules in another county, look on the website for that county's courts.) |
Technically, serving the police is incorrect. The laws regulating the Discovery process (Penal Code Section 1054) impose the duty to provide Discovery to you upon the prosecutor ; the law does not impose that duty upon the police, as their role in the matter is actually as a witness. My advice is: A
copy of your request must go
to the city attorney at City Hall, or to whatever attorney is prosecuting
you; it's usually not the district attorney. (If
you are really unsure as to which attorney to serve - the city
attorney, or the city prosecutor, or the district attorney - just serve
all of
them!) While the law does not require you to file a copy
of your
informal Discovery request with anyone other than the
city
attorney/prosecutor, some judges don't seem to understand that - so
also send a copy to the court. And, if your court is actually
publishing written rules saying that you must serve the police (see San
Mateo example, above), serve the police, too.
(4) You don't need to hire someone to serve an informal Discovery. I
suggest that you send the prosecutor or city attorney his copy
twice,
once by fax (program your machine to print out a 'confirmer'), and once by
Certified Mail, Return Receipt requested, with a Proof of Service signed by a friend. If you use mail to send
the judge his copy, get a Return Receipt. Bring those three
proofs of service with you to every
court
appearance, because the prosecutor/city attorney will almost always
claim that he/she
didn't receive your Discovery request.
(5) If the prosecutor doesn't reply within 15 days (20 days if you served the Discovery by mail), you will need
to take further action. See the "Dealing with..." section, below.
(6) Discovery goes both ways. If you
ask for Discovery, you also have to give it. You have to tell the
city who your witnesses will be, and you have to tell them about
evidence you plan to use at the trial.
The Sample Discovery Letter
The sample Discovery letter is below, in the blueish "wallpaper" area. You can add to it, or edit it down, but the last numbered item, where you provide Discovery to the prosecution, is not optional. So don't edit it out!
If you just want to get a copy of the photos
or the video, and quickly, you could edit the sample letter down to
just a request for those photos, Item 6 in the sample letter. (You will still need to answer Item 16.) The
limited request might get you a quicker reply than asking for all
fifteen items! If you already have an appointment to go
view the pictures, you could try handing the officer your discovery
toward the end of that visit. Maybe he or she will make a copy
for you on the spot - take a blank CD with you.
Dealing with the City's Response to Your Discovery
The
way some cities reply to Discoveries is a clear attempt to grind you
down, run you around, and in general keep you so busy trying to get the
information that you won't have the time or energy to really analyze it
(assuming you are able to get it at all).
Most
often the reply will come from someone at the police department.
And his or her reply may tell you that you need to contact other city
personnel to obtain some of the information you asked for. Well,
one department of the city is not supposed to slip out of supplying the
information by passing you along to another department. You sent
your Discovery to the city attorney, and he is supposed to get all of
his city departments to supply the information. You don't have to
make separate inquiries with each department. A ridiculous
example of this delaying tactic is where the police tell you to contact
the city attorney - the person to whom you sent your request in the
first place - for a copy of whatever you were asking for. And the most
ridiculous example of a delaying tactic was a city attorney who told a
defendant that the city didn't handle Discovery requests, and that the
defendant would have to obtain the information from the courthouse.
Some
cities try very hard to avoid supplying you with a copy of the violation
photos and/or video. In their reply to your Discovery request they use wording
designed to give you the impression that the only way you can see the
photos is to view them at the police department. That is total baloney! Under Discovery, they must give you a copy.
I have also heard that in one county, some court personnel - including
one judge - have been telling defendants that Discovery is not
available for traffic tickets (which are the lowest level of criminal
offense, infractions). More baloney! Penal Code Section
19.7 says: "Except as otherwise provided by law, all provisions of law relating to misdemeanors shall apply to infractions..."
If the photos/video are digital (most are, nowadays),
ask them to email them to you (the file size will be around 2 MB) or put it on a CD. You are entitled to get a copy of the same clarity, or "generation,"
that they plan to use in court. If
they discover a low resolution copy of the photos to you and then at
court they try to use a high resolution copy, I suggest that you object
to their use of it. Likewise, if they send you anything less than the full 12 seconds of the video.
If
you have received an unsatisfactory answer (or none) to your Discovery request,
telephone AND fax the city attorney a request to talk about the
Discovery. Give him 24 hours to respond. If he blows you
off, or continues to delay, file a motion. There is an
example in
Fight Your Ticket, on pages 10/23 and 10/30 - 41 (or, in the new 12th Edition, pages 179 and 185 - 195).
I may have an example of such a motion available - so that you
will not have to type the whole thing out.
"Best Evidence"
Here's my
untested (by
me) theory of what to do if you've had a low res. copy of the video (or
other photos) discovered to you. (Or if the officer is
testifying about the contents of a key document, but hasn't produced an
actual copy of that document.) There's a rule called "Best
Evidence."
It means that at
court they have to submit their sharpest photo, not some fuzzy
copy.
Or, if they are submitting a document, they have to provide the
uncondensed version of it, not a summary of it or a memo about
it. There's also the rule that if they don't discover something
to you in
advance, they can't use it at trial. My idea would be to object
to
their use of the sharper video, since it is different from what was
discovered to you, and probably contains a lot more information than
the fuzzy one. If the judge throws out the high resolution copy,
the police have no evidence
against you, unless they are quick on their feet and submit a lower
res.
copy as their evidence - or even refer to your low res. copy, the
one they have discovered. But if they tried to
do that, I would object to the admission of the low res. copy, under Best Evidence.
(For more info about Best Evidence, Google "best evidence"
California rule. But beware of any Internet material that cites
Evidence Code Sections 1500 - 1519 - such material would be outdated as 1500 - 1519 were replaced by
Section 1520 and up, several years ago, and it was re-named "The Secondary Evidence Rule.")
Subpoenas
If
you need a document for court and it's not among the types of documents
that you can obtain via Discovery, a Subpoena Duces Tecum is the way to
get it. For court purposes, you can not rely on a Public Records
Act request - there is no quick way to enforce the deadlines.
Getting
documents via a Subpoena Duces Tecum has a disadvantage in that you are
not likely to get to see the documents until the day of your
trial. It also has an advantage that it can be done closer to the
trial date than can Discovery.
Although
it is not required, I recommend that you staple your subpoena to a
"blue back" (available at some stationery stores, or you can make one)
so that whoever you
serve with the subpena will be less likely to lose track of it in the
big pile of paperwork on their desk. The blue back will also make
it less likely that that person will accidentally lose the last page or
some other critical page of your subpoena.
CR-125 Form - Additional Important Info
The CR-125 form came out in July 2007 and is very different from previous forms - It doesn't ask you to provide a statement justifying your request for the materials.
On the CR-125 form, at the bottom of page 1, there is a 1" by 1" box labeled "For court use only." This box is for the window clerk to stamp his seal. While someone may tell you that it is not necessary to have the subpoenas stamped, I strongly recommend that you do so. The easiest way to get stamped subpoena forms is to ask the court clerk to mail some to you - if you have time. Otherwise, go visit the courthouse.
Also, the form doesn't make it perfectly clear who is to sign at the bottom of page 1. Is it the defendant, or is it the court clerk who stamped the subpoena for you? Some court clerks think that they are supposed to sign. I think it is the defendant. If you have asked the court clerk for subpoena forms, and the clerk has signed them at the bottom, I recommend that you place your signature down there too. And put your title, "in pro per," after your signature.
Public Records Act Requests
Filing a request under the California Public Records Act (Government Code 6250, the "CPRA") is an easy way to get documents from a government agency, but it's not always the recommended way if you need those documents for a court appearance because the traffic court cannot force the city to comply with a public records request, whereas it can enforce your Discovery and subpoenas.
To view the rest of the CPRA, click: Gov.
Code 6250-6270.
You can file a CPRA request
anytime and as
often as you want - whether or not you have a case pending in
court. CPRA requests can be filed by mail, by fax, by email, or
in
person. The government agency is required to reply within 10
days,
although they have the right to notify you that it will take them some
extra time (and frequently do so).
Under the CPRA you can go to the government offices and look at the documents you inquired about, for free. But if you want copies to take home with you, you will have to pay roughly 10 to 20 cents a page for the copying. (If you plan to use those documents in court, you should ask the city clerk or the custodian of records to certify them.)
|
Computing the Cost of Copies in California:
If, after I have
inspected the document at the counter I
then ask the clerk to make me a copy to take home, that starts the
clock for
"direct costs of duplication" - the agency can charge me for the
clerk's time while he or she is taking the document from me at the
counter over
to the copier, running it, and returning to the counter - plus the "per
copy" cost for paper, toner, maintenance and electricity for the
machine. Assumptions: Copy
machine warm-up/set-up time of .5 minute, time to position or "feed"
each original .15 minute, clerical time cost (salary + benefits) of
$0.50 per
minute ($30.00 per hour), per-sheet cost to supply, maintain and power
the
machine of $0.03 per sheet, and that that clerk's walking time is .25
minute
each way. A.
Cost of clerk to
walk to and from copier (.5 min. x
$0.50) 0.25 B. Cost
of clerk
setting-up copier (.5 min. x $0.50)
0.25 C.
Cost of clerk to
feed the copier (.15 min./copy x $0.50)
0.08 D.
Supply &
maintenance of copier/copy
0.03 Total cost to copy
each additional
original:
(C + D)
$0.11 |
A sample CPRA request is below,
in the
blueish "wallpaper" area. You don't have to use the
City's
standard form - if they have one.
In all but the largest cities,
give or send
your request to the City Clerk. In counties and large cities,
address it, by name, to the person who is second-in-command in the
appropriate department, usually Public Works. The suggestion to
address the request to the second-in-command is because the top person
is usually inundated with official notices of all kinds, and yours
could get lost in the deluge.
If you have a case coming up soon in court, it probably is better to issue a Subpoena Duces Tecum, or file an informal Discovery, both covered on this page.
If the agency denies your request, Gov. Code 6255 says that the denial has to be in writing.
6255. (a) The agency shall justify withholding any record
by demonstrating that the record in question is
exempt under express provisions of this chapter
or that on the facts of the particular case the
public interest served by not disclosing the record
clearly outweighs the public interest served by
disclosure of the record.
(b) A response to a written request for inspection or copies of public records that includes a
determination that the request is denied, in whole or in part, shall be in writing. (Emphasis added.)
Section 6255 also says that the
denial letter has to "express" (cite, say, or state) what Section of
the Public Records act justifies the denial; or, the letter has to
explain how the public interest in keeping the information confidential
is more important than the public interest in exposing the information
to public view.
One city, perhaps
inadvertently, went public with how it would like to handle public
records requests. To a statewide survey conducted in 2006 by the
Chula Vista Police Department, the Roseville Police Department
responded:
"The
one annoyance is the people who have made it their mission to fight
photo red light citations by making public records requests designed to
annoy you and create busy work. My recommendation is that you
save every related document somewhere and when you get your first
public records request you send them an avalanche of paper and charge
them accordingly."
If "your" police department is trying to "paper" you as suggested by
Roseville (which in Oct. 2007 shut down its camera program), keep in
mind that you can inspect records, for free. You only have to pay
when you ask for your own personal copy to take home with you. (If you plan to use those documents in court,
you should ask the city clerk or the custodian of records to certify
them.)
The very best book about the
CPRA is
The CalAware Guide to Journalism Law in California. See the Reference section on the Links page
for
details about it.
Hearsay
If you are going to the trouble
of obtaining documents, make the small additional effort to make sure
they will be admissible in court. Documents you obtain from
non-government sources are hearsay and cannot be used as evidence in court
unless you bring in the person who created them, to answer the
opposition's questions about the documents. However, documents created by a government
employee can come into evidence without having the government employee present - because
there is an exception to the hearsay rule for documents created by a
government employee in the normal course of their job. They need
to be certified, though.
|
Evidence Code 1280. Evidence of a writing made as a record of an act, condition, or event is not
made inadmissible by the hearsay rule when offered in any civil or criminal proceeding to prove
the act, condition, or event if all of the following applies: (a) The writing was made by and within the scope of duty of a public employee. (b) The writing was made at or near the time of the act, condition, or event. (c) The sources of information and method and time of preparation were such as to indicate its trustworthiness. |
An appeals court
decision (Bohl) addressed the hearsay issue. And see Defect # 10.
Bureaucratic Tricks
If that happens to you, remind the city that the city paid for the camera company (or the sheriff) to create and maintain the records and as a result the records are the city's property (and responsibility to disclose) even if they are located off city premises at the camera company (or sheriff's office).
There's another reason not to request or accept records directly from the camera company. The records you get will be hearsay, and useless in court, because they were obtained from a private entity, not a government agency. (See Hearsay, above.)
Traffic Accident Statistics
If you want to know how many accidents have occurred at a particular intersection, you can get that information from SWITRS - the Statewide Integrated Traffic Records System. SWITRS reports are available to cities and private individuals (you), at very low cost, from the Information Services Unit of the CHP.
Details on how to contact SWITRS, and examples of their reports, are in Set # 12 of Culver City Documents, and in Set # 3 of Hawthorne Documents.
1. Public Records Request
2. Discovery
To copy one of the forms below -
1. Highlight the text of the form you want, below (for technical
reasons, they're in the blueish "wallpaper" area).
2. Copy that highlighted text into a blank word processor
document [control-C, start Word, control-V].
3. If the resulting word
processor document has a lot of short broken-up lines of text or won't fit onto a single 8-1/2 x 11 page,
try the following settings:
(a) display at "full
screen,"
(b) fixed-width font such as Courier New, 12 points or less,
(c) smaller side margins.
4. Any item full of XXX's or 999's will require changing or editing, and the lines beginning with XXX may require changing or filling-in. After you're done editing the document, do
a 'find' or 'search' for XXX and another for 999 - to make sure that
you have found all the items that must be changed or filled-in.
---------------------------------
RED LIGHT CAMERAS
www.highwayrobbery.net
www.highwayrobbery.net
(Scroll Down for the Forms)
