New 5-24-03, updated 10-27-08,
5-8-09, 3-20-10, 1-30-12, 6-13-12, 1-18-13:
Getting Government Records
( Subpoenas, Discovery,
Public Records Act Requests, 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 either (a),
"Would you write me a note saying that?" or (b), "Could you show me the
law that says that?" or (c), 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! And, the website photos will be of lower
resolution than the originals.) 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
tells how to
write and serve a Discovery (for the page numbers, see my FYT Addenda page and in the
14th Edition of FYT also see "Discovery" in FYT's index), but please
note -
(1) Timing: I strongly recommend 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 statutes (laws) regulating the Discovery process (Penal Code Section 1054) do not tell us how early we may request discovery, we must look to other sources: 1. The 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 Discovery request
does not
need to be on the official-looking form shown in Fight Your Ticket, or
any other official form
- these requests
are most often done informally, via an ordinary business letter (see
sample below, in the bluish 'wallpaper' area of this page).
(3) Who to serve: Although it is technically incorrect, many
cities tell defendants (verbally, or in writing) to serve their
Discovery on the police.
Here's an example from one such city:
|
(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.
[[[Editor's note: May not be correct, or proper.]]] 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 [[[Editor's note: May not be correct, or proper]]] 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.) |
Again, a
requirement to serve
the police is incorrect.
The law regulating the Discovery process (Penal Code Section 1054), which applies in every California
county,
imposes the duty to provide Discovery to you upon the "prosecuting
attorney." That 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 prosecutor or city attorney at City Hall, or to whatever
attorney is prosecuting
you; it's usually not
the district attorney. If
you are at all unsure as to which attorney to serve - the city
attorney, or the city prosecutor, or the district attorney - don't
waste any time or phone calls trying to figure it out. It is
faster and easier to just serve
all of
them! It should be noted that some cities, including some large
ones, don't have a city prosecutor.
DA, or city prosecutor? Some cities work at
deceiving you as to who to serve.
While the law does not require you to file a
copy
of your
informal Discovery request with anyone other than the prosecuting
attorney, 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.
So, for those who don't want to spend a lot
of time researching exactly who to mail to, here is the mailing list:
City Attorney, City Hall, (street address of city hall), City, State,
Zip.
City Prosecutor, City Hall, (street address of city hall),
City, State, Zip.
Traffic Unit, Police Department (or Sheriff Dept.), (street address of
station), City, State, Zip.
Superior Court Traffic Division, (street address of court as shown on
your ticket), City, State, Zip.
Discovery Unit, District Attorney, (street address of his main office
in the county seat), City, State, Zip.
Again, I strongly recommend that you FILE WITHOUT DELAY.
(4) How to serve
it: You don't need to send someone down to city hall to make
personal service of your informal Discovery request. While the
minimum requirement is to mail it First Class and have an adult friend
sign a Proof of Service, I recommend that you send the prosecuting
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 (optional) copy, get a Return Receipt. Put your
various proofs of service in your case file (do not mail them to the
court, or file them there, as they could get lost), and bring them with
you to every
court
appearance, because the prosecuting attorney (if he shows up at all)
will almost always
claim that he/she
didn't receive your Discovery request.
(5) If the prosecuting attorney
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
prosecuting attorney who your witnesses will be, and you have to
disclose the
evidence you plan to use at the trial.
In summary:
Get it done right away (don't spend any
time looking for a special form). Serve everyone in
sight. Get good proof of service. And mark your
calendar to follow up in three weeks.
The Sample Discovery Letter
The sample Discovery letter is below, in the bluish "wallpaper" area. You can add to it, or edit it down, but the last numbered item (Item 17), 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 5 in the sample letter. (You
will
still
need
to
answer
Item
17.)
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.
I may have an example of such a motion available - so that you
will not have to type the whole thing out.
Also
see
the
Nov.
2011
Blumenthal
decision,
on my case
index page.
Another
resource
is
the
Discovery
materials
at
helpigotaticket.com.
"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.
A
significant
advantage
of
a
Subpoena
Duces
Tecum
is
that
it
can
be
done
close
to
the
trial
date.
A
disadvantage
is
that
the
attorney
for
the
City
whose
documents
you're
asking
for
may
file
a
motion
to
"quash"
your
subpoena,
claiming that the documents you've
asked for are not relevant to the question of whether you ran the
light. Thus, you need to tailor your subpoena carefully, to only
ask for documents that you believe you can prove are relevant.
(This contrasts with a Public Records Act request, which carries no
"relevance" test.) An additional disadvantage of using a
subpoena is that you
are
not likely to get to see the documents until the day of your
trial.
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.
Finally, it is important to serve the subpoena on the right person. It's supposed to be the "Custodian of Records." If you are asking for police department records, it will be a supervisor or department head at the police department. If you are asking for city records that are not kept by the police (for example, a copy of the contract that the city council signed with the camera company), the right person to serve will usually be the city clerk. See Fight Your Ticket for more details.
Public Records Act Requests
Filing a request under the California Public Records Act (Government Code Section 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 (although quite reluctantly).
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 it doesn't matter why you want the documents. There is no "relevance" test, like there is with a subpoena.
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.)
|
About
Certification
Certification is a rubber stamp, or an embossed seal, that the city clerk or custodian of records puts on your copy of the document, saying that it is a true copy of the original on file at their offices. On the stamp there's usually a blank for him or her to sign. I have noticed that even though I request cities to certify something, they often forget. So, when the copy is ready, I suggest that rather than having it mailed to you, you go pick it up so you can make sure that the certification has been done. They will charge 10 to 20 cents a page for making the copy, and they may charge a fee for doing the certification. |
The box immediately below contains a detailed discussion of copying cost. Refer to it if you feel that the government agency is overcharging you for copying documents.
|
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.
A.
Cost of clerk to
walk to and from copier (.3 min. x
$0.75) 0.23 B. Cost
of
clerk
setting-up
copier
(.5
min.
x
$0.75)
0.38 C.
Cost of clerk to
feed the copier (.15 min. per copy x $0.75)
0.11 D.
Supply &
maintenance of copier, per sheet
0.03 Total cost to copy
each additional
original: (C + D)
$0.14 |
A sample CPRA request is below,
in the
bluish "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 CPRA request to the city clerk at City Hall. The city clerk
is not part of the court system - so you will be treated nicely
there! In large cities, and counties,
address your request, 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, the CPRA 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.
How Low Will They Go?
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, 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.)
Another example of a City's
efforts to keep information from the public is this advice emailed to
the City's of Bell's incoming Chief of Police Randy Adams by Assistant
City
Manager Pier'Angela Spaccia,
during the 2009 negotiation of the Chief's contract:
"We have crafted our Agreements carefully so we do not draw attention to our pay." "The word Pay Period is used and not defined in order to protect you from someone taking the time to add up your salary."
As shown by the publication of
the embarrassing emails from Bell, the emails exchanged among city
staff, councilmembers and the public are public
information. Except
when they involve attorney-client privilege. Even when the
councilmembers use
their personal (non-city) email address to conduct city business, those
emails are public. Some cities are balking at forcing their
councilmembers to turn over those emails; A June 2012 suit
filed by the
First Amendment Coalition against the City of Auburn may clarify the
situation.
The suit may also clarify that the Govt. Code Sec. 34090(d) requirement
for government records to be retained for two years is applicable to
emails, which will end the now-common practice of destroying emails after
a
few
days or weeks.
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.
A two-page summary of the CPRA
is available here.
One agency's public records
manual is available here.
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. The
documents 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. |
A number of recent case
decisions - and some current legislation - may change the
hearsay issue. See Defect # 10 - D on the Home page, the Goldsmith and
Annette B. cases, and SB 1303 on the Action/Legis page.
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 bluish "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.
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