Criminal Law Questions? Ask a Criminal Lawyer.
A traffic ticket in ND.
Thank you for your response. As the subject of the video and because charges were based on the recorded incident, she should be entitled to a copy of the video in order to prepare her defense. She would also be entitled to a copy of the police report, if any. She can make a request to the police department that issued the ticket, directed to the custodian of records. The request should be made in writing, certified return receipt requested, and include as much identifying information as possible so that they can locate the video. She can also make a request in person at the police station and obtain a receipt. (She may need proof later that she made the request) She should also, at the same time or separately, notify the police in writing as soon as possible to preserve the evidence for use at trial. That way if the video is lost or otherwise unavailable for the hearing she can argue she made a request to preserve and has been deprived of exculpatory evidence. This would support an argument for dismissal of the charge.
She can also make a public document request under the North Dakota Freedom of Information Act. Here is a sample request http://www.nfoic.org/north-dakota-foia-resources However, a response to an FOIA request may have information redacted. If she does make a FOIA request she should identify herself as the subject of the video. This request should be made to the custodian of records at the police department. If she is challenging the ticket, she will want to subpoena the video for the hearing. The subpoena requirements and process can be found here http://www.ndcourts.gov/court/rules/civil/rule45.htmPlease feel free to ask any follow-up questions.
Over the phone the office/officer said ' that your lawyer makes a request with the district attourney and the district attourney then gives the office instruction or such to ''release'' it. Either it is available to the people involved or not. Thanks!
Thank you for your response. She is definitely entitled to a copy of the video. She can obtain the video in the course of discovery in a criminal case which is the manner the officer described, but it is not the only way to obtain the video. The police do not need authorization from the DA to release it. She can make a request for a copy of the video to the prosecutor assigned to her case. If she does not have an attorney, she can make the request herself. She can make the request orally and follow-up with a written request.
In addition, she may want to keep track of the request she has made to the police and any request to preserve the tape, and any request to the prosecutor so that if the tape becomes unavailable or is over-written or otherwise lost, she can make the argument that her case should be dismissed. Also, at this point she can request a copy of the video in writing directly to the police as I outlined above at the same time as her request to the prosecutor. She doesn't have to wait or choose only one method to obtain the tape.
The important thing is that the tape is preserved and that she has an opportunity to review the tape and any police report before the hearing. If she has not, and has made an effort to obtain the tape, she can bring up at the hearing that the evidence has not been produced to her as requested and request a dismissal, or a continuance so that the evidence can be provided to her. Please let me know if you have any further questions.
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