The defendant did all those things in a letter replying to the DA response to discovery request. but I guess my question is would any of this have an affect on the getting another hearing of the motion to suppress? It sounds like the preserving error is for an appeal after a conviction.
On the judge issue. I understand he has to explain all of the negative things but can he say that the defendant has to answer the questions put forth by the prosecution? I thought the defendant could always plead the 5th amendment on any questions he chose.
Ok. he did not file a motion to compel before the hearing. He will be doing that soon. So in the motion to compel are you saying he will need to explain specifically why this information would be relevant? Would he need to say something like "this information could show that the police officers did not follow proper procedure in their stop and search and it could also show there are inconsistencies in the statements the officers made at the hearing and their testimony in the internal investigation report." Would a statement like that be needed? If he gets that report and what the defendantssays turns out to be true, then would it be worth asking for a rehearing?
I appreciate getting corrected on my 5th amendment misunderstanding.
Could the defendant say " I believe the information would show..." Instead of "the information would show..." I am concerned about the defendant making such a strong statement when in fact he does not know for sure and he will have to sign the motion to compel or is that not a problem?
The defendant submitted a motion to compel for dispatch records, internal PD investigation report, the phone call record to confirm a call was made to an arresting officer via cell phone giving info about mj use in another case and the persons name who gave that info from dispatch. There is a hearing later this week on this motion.
The defendant called the DA to see if he would have any of the requested info before the hearing. The DA says he would have the dispatch audio and the phone record showing a phone call was made from dispatch but no name of the person who made the call. It sounds like it is an in-house PD record. My question is should they be required to give the defendant a record from the phone company and also shouldn't the DA be required to give the defendant the name of the person who made the call? The primary witnesses claimed the info in that phone conversation was what caused them to request the search. What constitutional right or court decision would require the DA to get the person name who made the call and a phone record from the phone company? (The DA said he would have the court make the decision on the internal investigation report.)
The defendant knows the DA does not want to give him the name of this person. And the arresting officer in the motion to suppress hearing testified that he could not remember the name of the officer that called him. Keep in mind this is fairly small police department. He has the calling officer's phone number but he still claims not to remember his name. The Defendant wants to find out the calling officers name so he can confirm the content of their phone conversation. All the defendant wants to know is did you call the arresting officer date/time and did you discuss case # XXXXX did you mention that the defendant was thought to be under the influence of mj in that case. So how does the defendant go about getting this information from this unknown officer?
Can the DA be forced to get it or will the defendant have to get himself someway? As I mentioned there will be a motion to compel hearing in a few days.
Great information. I am going to try and put all the pieces together. "The Defendant anticipates that at trial the issue of whether permission was given for the search may be raised. Therefore, it is necessary to know the identity of the officer who made the call to determine whether the request to search was even justified and reasonable,in other words, is the unidentified officer and the arresting officers saying the same thing.
While the person who made the call isn't a direct witness, he is in a roundabout way and therefore the Defendant should be able to confront him under oath."
Sounds like you are saying the defendant, being pro se, should subpeona the person and not wait for the DA to do it once he finds out the correct name and address. To do that I am guessing he would have to get the Judge's approval and signature on a subpoena. Is that correct?
Ok. Thanks. The defendant was thinking about a jury trial (If it goes that far) at first but after more consideration he is thinking about trial by the judge because there are four points to be proved for a conviction and he is convinced that two of those points the DA will not be able to prove. He feels the judge will be more focused on these points than a jury. The two points are knowingly/intentionally possessing and for the purpose of inhaling mj. He made a statement to the arresting officer when asked why do you have that mj pipe in your pocket "I did not know it was there" This is on the probable cause affadavit and the one officer's statement that performed the search. (and he truly did not know.)
One of the other required items is using it for inhaling mj. They cannot prove that point. He was not intoxicated, no blood test, no dna or fingerprint evidence. Do you think these would be convincing arguments to go for? and what do you think about the reason for going with a judge instead of jury? The judge does seem be thoughtful and fair.
There was a question I don't think was answered in previous posts that is the following:
The two of the four points that defendant does not think DA can prove are 1)knowingly/intentionally possessing the pipe and 2)for the purpose of inhaling mj. He made a statement to the arresting officer when asked why do you have that mj pipe in your pocket "I did not know it was there" This is on the probable cause affadavit and the one officer's statement that performed the search. (and he truly did not know.)
One of the other required items is using it for inhaling mj. They cannot prove that point. He was not intoxicated, no blood test, no dna or fingerprint evidence. Do you think these would be convincing points to focus on and argue if this case goes to trial ?
Is an analysis (thc findings on alleged mj pipe ) by a state lab valid in a trial if the person who signed off on the test does not appear? In other words can someone else who works at the lab who neither performed the test nor signed off on it testify of the results in court?
Can this objection be made somehow before trial date or just on the trial date when the information is submitted for evidence?
I received answer over a year ago and the status on this series of questions is still saying "waiting for expert" Can someone correct this. I received the answer over a year ago.
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