Getting Police Evidence to Fight Tickets ("Discovery")
In any fight, it is best to know your opponent's strategy. Fortunately, you often have the legal right to do this (called "discovery"). In many states you have the right to demand access to the officer's notes made at the time or soon after your ticket was issued. You also have the right to demand access to other information, like instruction manuals on the use of equipment that was used to clock your speed. (See Fight Your Speeding Ticket: What is the Law? and Fight Your Speeding Ticket: Determining Your Speed for information on what types of equipment are used to catch speeders. You must check with your local court clerk to confirm you have the right to demand discovery in your state.) This information can be a huge help when cross-examining the officer and presenting your own case at trial.
To discover the officer's notes, you must make a specific written request for the disclosure of all notes or documents relevant to your case. If you have an arraignment, you may be able to do this there. But if, as is far more common, you plead not guilty and post bail without an arraignment, you'll need to make your request promptly by mail. Send your discovery request to both the police agency that ticketed you and to the local prosecuting agency. The request should be printed or typed on 8½" by 11" paper and look like the one shown below.
If Your Discovery Request Is Ignored
Because so few defendants ask to see the evidence against them, many police, prosecutors, and even some judges believe this right to discovery is not available in traffic court. Accordingly, even though your discovery request is probably proper in your state, you may find it's ignored. If so, you'll need to persist in making this request, reiterating that you believe access to the officer's notes is critical to presenting your defense.
If you get no response to your discovery request within three weeks, you will need to go to court and make a "pretrial motion" to ask the judge to order the police to release the notes to you—lawyers call this a "motion to compel discovery"—or dismiss the case. Your best bet is to call or visit the court clerk to schedule this motion before your scheduled trial date. Failing this, it may be possible to have your motion to compel discovery considered on the day of your trial. (See the next section for how to do this.)
Assuming a pretrial hearing to consider your discovery request is scheduled, be prepared to show the judge a copy of your written discovery request. Then ask him or her to formally order the prosecution or police agency to provide a copy of the officer's notes. Be sure to ask the judge to order that this be done prior to any scheduled trial date, so you have enough time to use them to prepare.
IN THE SUPERIOR COURT OF CALIFORNIA
COUNTY OF LOS ANGELES
VAN NUYS BRANCH
THE PEOPLE/STATE OF CALIFORNIA,
REQUEST FOR DISCOVERY
Court Docket No. A-1234567
Citation Number: 99-HK-1234
Date Issued: 4/15/20xx
Police Agency: Los Angeles Police Dept.
Citing Officer: Smith
Badge No. LA-1234
Prosecuting Agency: Los Angeles City Attorney
TO THE ABOVE-NAMED POLICE AND PROSECUTING AGENCY:
1. The above-named defendant hereby requests that you provide, to the defendant whose address is indicated below, copies of any and all relevant written or recorded statements of witnesses, including any statements, diagrams, or drawings made by the citing officer on any piece of paper—including the reverse of his/her copy of the citation—or other medium of information storage.
2. The following are names and addresses of defense witnesses, other than defendant, who will testify at trial:
( ) None.
( X ) The following: Jane Doe, 345 Main St., Van Nuys, CA 90012 (818) 555-5678
3. The following copies of notes made by defendant immediately after the ticket was issued and recorded statements of witnesses are attached:
( ) None.
( X ) See attached.
DATED: May 17, 20xx
12345 Market Street
Los Angeles, CA 90010
Tel: (213) 555-1234
If your discovery request has still been ignored when your trial date rolls around, you may want to ask the judge to dismiss your case. Here is sample language that, of course, will need to be adjusted to fit your facts:
Your Honor, the prosecution has failed to provide the discovery I properly requested (and, if true, "that you ordered"). I move to dismiss the case on account of the prosecution's failure to provide discovery. Here is a copy of the written request I made a month ago for the officer's notes. I sent them to the prosecutor and police agency, and they both ignored me. I have not waived my right to a speedy trial, and I shouldn't have to. I can't properly prepare for trial even if the notes are produced now. As a result, I request that the charges against me be dismissed.
If the following requirements are met, you may get your case dismissed at this point:
- You are entitled to discovery under state law.
- Your state has a speedy-trial law entitling you to trial within a certain period, and you haven't given up the right to a speedy trial.
- Postponing the trial to allow the prosecution to get the notes for you would require you to give up your right to a trial within the "speedy trial" time allowed.
- You made your request for "discovery" promptly (and within any time limit).
If the judge won't dismiss your case, renew your request right then that you be given a chance to examine the officer's notes. The judge should at least be willing to give you a few minutes to do this.
The Reason Cops Have Perfect Memories
Have you ever wondered what the officer who just ticketed you is doing, sitting in his patrol car after writing you up? He or she is probably writing notes—something on the back of your ticket—with details of why the officer ticketed you and what the conditions were at the time. Just before trial, the officer will typically review the notes, and sometimes refer to them while testifying. With courtroom experience, an officer can often glance down at the notes every few seconds, rattling off a narrative that sounds like he or she was recounting something that happened yesterday. But because the officer probably won't remember much about what happened and doesn't want to be tripped up fabricating a detail, most officers will depart very little from their notes. In short, if you can discover the officer's notes, you can expect the officer's testimony will stick pretty close to this script.
What to Do With the Officer's Notes
If you receive a copy of the officer's notes, you'll want to study them carefully. It's possible that these notes may cause you to reevaluate your defense strategy, when you know what the officer is going to say at trial. Here are some things to look for:
- Detail. If the officer's notes don't say much, he or she probably won't have much to say at trial, unless you gave the officer a reason to remember your specific case (another big reason why it's never wise to behave like an idiot when you are pulled over). On the other hand, if the notes are more detailed (such as a fact-specific statement convincingly laying out what you did), the officer will probably sound better at trial.
- What the notes don't say. If the notes lack key details, you may be able to challenge the officer's memory. Look to see if the notes:
- Mention which lane you were in.
- Say exactly how the officer recorded your speed, if you were cited for speeding. (For example, if pacing was used, how far the officer paced you before stopping your vehicle.)
- Have detailed specific information about road and weather conditions and other nearby vehicles. For example, if you were cited for an unsafe turn across traffic, the notes should detail the exact traffic situation justifying the officer's judgment call.
- Report where the officer was when he or she observed you.
- Diagrams. Police will often make a diagram on the ticket, especially with violations that occur at intersections, like running a stop sign or stoplight, unsafe turns, or failure to yield. If the officer does a careful job of including significant details, the officer will probably look well prepared in court. If not, you have a better chance to raise a reasonable doubt as to your guilt by demonstrating through cross-examination that the officer can't honestly remember what happened.
- Driver statements. Most officers will note any admissions made by the driver on pulling him or her over ("Said she was going 70, asked for a break"), sometimes quoting them directly ("Yes, I ran the stop sign, but my daughter's pet iguana was sick and I had to get her to the vet"). Of course, you are far better off if there are no such admissions written down.
Deciphering police notes. Some officers write their notes in easy-to-read narrative detail; others use abbreviations, which are sometimes hard to decipher. Here are hints that may help you decipher police slang:
- S/V = "subject vehicle" (your car, truck, or motorcycle).
- D or (λ) = "defendant" (you).
- Est. = Police officer visually estimated your speed.
- R or r = "radar" unit, sometimes also followed by the radar unit serial number.
- Cops usually list how far they paced you or measured your speed using a VASCAR system in tenths of a mile (e.g., "0.3" means one-third of a mile and "1.5" means a mile and a half). (See Fight Your Speeding Ticket: Determining Your Speed.)
- BUMP = "bumper pace." The officer is recording how long he or she kept a constant distance between your rear bumper and the patrol car's front bumper to read your speed.
- Traffic lanes are often abbreviated. For example, "lane No. 1" might appear as "Ln. 1" or "L 1" or just "#1." Lanes are counted from the center of the road (median), with lane No. 1 being the first lane and the lane to its immediate right being lane 2.