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")

By , Attorney

In any legal fight, it is best to go in with as much information as possible. Fortunately, in a traffic case (as in criminal cases), you have the right to access to the government's evidence against you. This right to access is called "discovery." In a traffic case, you can typically exercise this right by requesting copies of the officer's notes, documentation for the radar or other device the office used to clock your speed, and the like. What you request, of course, depends on the type of ticket you received.

Oftentimes, the information you obtain through discovery can be a huge help when cross-examining the officer and presenting your own case at trial.

Getting Discovery in a Traffic Case

Discovery procedures vary by jurisdiction. And it actually is fairly uncommon for drivers to request discovery at all in a traffic case. But here are some basics of how it generally works.

To discover the officer's notes or other documents in a traffic case, you must make a specific written request for the disclosure of all notes or documents relevant to your case. In your request, you should describe precisely the items you're requesting and include a general statement such as "all other relevant documents and other evidence in the government's possession."

Generally, discovery requests should be sent to the law enforcement agency that issued the ticket, the prosecuting attorney (in jurisdictions that use prosecutors in traffic court), and to the traffic court clerk.

Prior to doing anything, it's a good idea to check with the prosecution, the court clerk, and the relevant law enforcement agency to ensure that you're following local discovery procedure. You can also ask about requesting discovery at your arraignment (the first court date).

If Your Discovery Request Is Ignored

Because so few traffic defendants ask to see the evidence against them, many police and prosecutors (and even some judges) believe this right to discovery is not available in traffic court. So, if your discovery request doesn't initially get results, follow-up with a second request—reiterating that you believe access to the officer's notes is critical to presenting your defense—that you have not received a response to your first request. With this second request, make sure you send it to all the same entities and include copies of the first request.

If you get no response to your discovery request with a few weeks or so (or your trial date is fast approaching), you'll need to file a "motion to compel discovery" in the traffic court. Basically, in this motion, you're asking the judge to order the government to turn over the requested documents and other evidence. (Again, it's probably a good idea to call the court clerk to find out how you should go about filing this type of motion.)

So, what can you do if the government doesn't comply with your discovery request?

If your trial date comes and your discovery request has still been ignored, you should ask the judge to dismiss your ticket for the discovery violation. In a case where the government clearly has the requested discovery in its possess—like calibration records for a radar unit used to measure your speed—there's a pretty good chance of getting a dismissal. However, in many other cases, the government might come into court and tell the judge there aren't any officer notes or other documents to be discovered. In these types of cases, it's unlikely the judge will do anything about the government's failure to respond to discovery requests.

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