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Law Educator, Esq.
Law Educator, Esq., Lawyer
Category: Criminal Law
Satisfied Customers: 91096
Experience:  Attorney with over 20 years law enforcement, prosecution, civil rights and defense experience
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I have a preliminary hearing tomorrow. i issued subpenas

Customer Question

I have a preliminary hearing tomorrow. i issued subpenas for witnesses and subpoenas duces tecum for witnesses I have issued these subpoenas two times before and some of the witnesses failed to show up. now some of them are public officials and law enforcement officers and some are citizens . I also issued in my discovery to receive all media , video and audio that the police may did take and recordings electronically recorded and all officers notes and statements .
The judges has been less than compliant on enforcing my subpoenas and subpoenas duces tecum . What Can I do to Enforce My Subpeonas and Subpeonas duces tecums and what are the penalties if they do not and can i get money damages for their non-compliance and can i get attorney fees ?
Submitted: 1 year ago.
Category: Criminal Law
Expert:  Law Educator, Esq. replied 1 year ago.
Thank you for your question. I look forward to working with you to provide you the information you are seeking.

Were the subpoenas properly served on all of the individuals?

Can you please explain what you mean by the judges being "less than compliant on enforcing the subpoenas?"

What type of case is this?

What specific evidence are you seeking in the Subpoena Duces Tecum?
Customer: replied 1 year ago.

yes the subpeonas were properly filed and served

 

The judge has not made any orders to the fact that the subeponas have not been satisfied or met

 

this is a criminal case . I was charged with battery on a police officer and resisting arrest but the battery charge has been dropped . i suspect shortly they will drop this down to a from a felony to a misdemeanor thus denying me the right to a jury trial. You don't get jury trial for misdemeanors in Louisiana

 

the specific evidence i am seeking is all audio and video recordings of my entire contact with the police . they have personal recorders which connect to their cars computers and every word is recorded during a persons encounter with police . as well as video outside and inside the squad car. while i was arrested and handcuffed and sitting in the car I speciffically told both cops and their supervisors that my wife was a stroke patient and bedridden and could not be left alone and i was her primary caretaker and she could not be left alone . i stayed in jail for 3 days before i could bail out . when i got out she suffered another stroke , my sister and her grandaughter found her with poop and pee all over her and no liquids or meds she was seriously dehydrated, and also has heart problems . these officers should be charged with abandonment of the elderly and seriously ill she is 76 years old. . Our dogs and cats went unfed for 3 days . that is cruelty to animals by the cause of these officers is it not ?

 

also they caused me to have a heart attack. I am 61 they put undue stress on me and my family and i did not go to jail that night instead i went to the hospital in an ambulance . i had another heart attack later in jail.

Expert:  Law Educator, Esq. replied 1 year ago.
Thank you for your response, I am a Louisiana licensed attorney and am familiar with the process there.

As I do not have access to your case file and police report and evidence, I cannot comment on the validity of the charges or the probable cause the officers had at the time of the arrest and my comments are confined only to the procedural issues you asked about.

Have you submitted a motion for a rule to show cause for contempt based no the subpoenas not being honored or have you submitted a motion to compel with the court yet?

Also, did the arrest take place at your home, where the police could actually see your wife and her condition?
Customer: replied 1 year ago.

I have submitted a motion to comple but no motion to show cause for contempt the arrest took place at my home and I am the one who called the police out to file a complaint agaisnt animal control who would not leave and was violating or impeding my right to get my stoke patient bedridden wife to the dr.

Expert:  Law Educator, Esq. replied 1 year ago.
Thank you for your response.

If the court has failed to rule on the motion to compel, you need to file a motion for a rule to show cause for contempt of court Monday morning and the court would be forced to rule on those pending motions before they could hold any preliminary hearing or they would have to rule on those motions at the same time as the preliminary hearing, that is at the discretion of the judge. When you file your rule to show cause for contempt Monday, you need to inform the court that there is also a pending motion to compel and to date that none of the information has been presented to you as required by Brady v. US and also that the witnesses are refusing to comply with valid court subpoenas and ask the court to issue a contempt order against the parties for their non-compliance. This is the proper legal procedure for the situation you are in with your criminal case.

To address the situation with your wife. If your arrest occurred at your home and the officers knew your wife was incapable of being left alone, they had a duty to either allow you to call someone to be with her or to contact social services, the Adult Protection Unit, as well as an ambulance if your wife needed a doctor at the time, to make sure your wife was taken care of while you were being arrested. If the officers failed to take action and your wife suffered harm as a result, which you are describing, then you have grounds to seek to sue the police officers and the department for gross negligence in leaving a disabled person who could not care for herself without any arrangements for care and you would use a general civil litigation attorney for this type of suit. This is completely separate from any of your claims of false arrest or claims against the police for your arrest itself.

Before you can consider suing over your arrest, you have to be cleared of all charges in criminal court and then you need a civil rights attorney locally to review the police report, video and other evidence to determine whether or not the police lacked probable cause in arresting you and/or if they were grossly negligent in their investigation leading to your arrest such that you can overcome the qualified immunity they have in making arrests based on probable cause under Louisiana law.



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Customer: replied 1 year ago.

in louisiana we only have one year to sue it has now been almost 6 months . they know what they are doing they are delaying me to force me to loose my right to file suit window of 1 year . Louisiana so sux and leads the nation in violations of civil right

Expert:  Law Educator, Esq. replied 1 year ago.
I understand about the timeliness in Louisiana. You can get an attorney to sue on behalf of your wife now.

As far as your right to sue on your own case, if you get close to the 1 year deadline, you would file your suit for the false arrest then, but the court will hold off on the civil suit until the criminal case is closed.
Customer: replied 1 year ago.

I had a preliminary hearing today to answer for the charges of battery on a police officer and resisting arrest. The Judge would not allow any of the video or audio evidence in because she said I had not established any foundation, How do I establish a foundation and get my video and audio evidence introduced ?

Expert:  Law Educator, Esq. replied 1 year ago.
Thank you for your question. You are asking a question, the answer to which fills up actual volumes of law books and attorneys spend years learning how to do.

We can really only give you the brief version here as we are not law schools and there is really not enough space here to talk about evidence and laying foundation or authentication of evidence, both of which are important and required for a court to allow evidence in.

You establish a foundation by testimony in court. You ask the witness officers if there was video in the cars and if the video could have recorded any part of the incident. You then ask if there was audio and ask if the audio could have recorded any part of the incident. You then ask where the audio and video is recorded. Then once you have established that there was actually audio and video from testimony under oath you can ask for the audio and video to be introduced.

When you get the audio and video, you then have to authenticate it by putting someone from the department on the stand who keeps the audio and videos in storage and you need to ask them if this is the video from X car on Y night and if this video has been altered in any manner and if the copy of the video they provided you was the authentic video (or copy there of) from the vehicle. Once the person testifies to that, then the video is admissible.




Thank you so much for using JustAnswer.com. I truly aim to please you as a customer, but please keep in mind that I do not know what you already know or don't know, or with what you need help, unless you tell me. If I did not answer the question you thought you were asking, please respond with the specific question you wanted answered. PLEASE use REPLY to EXPERT if you would like more information or if you feel something was not included in your answer.

Kindly remember the ONLY WAY experts receive any credit at all for spending time with customers is if you click on OK, GOOD or EXCELLENT SERVICE even though you have made a deposit or are a subscription customer. YOU MUST COMPLETE THE RATING FOR THE EXPERT TO RECEIVE ANY CREDIT, if not the site keeps your money on deposit.

Also remember, sometimes the law does not support what we want it to support, but that is not the fault of the person answering the question, so please be courteous.

Law Educator, Esq., Lawyer
Category: Criminal Law
Satisfied Customers: 91096
Experience: Attorney with over 20 years law enforcement, prosecution, civil rights and defense experience
Law Educator, Esq. and 7 other Criminal Law Specialists are ready to help you
Customer: replied 1 year ago.

what if i have video that I took and want it introduced as evidence , how do i establish a foundation to get that video admitted and without having to take the stand to testify to other things as well.

Expert:  Law Educator, Esq. replied 1 year ago.
Thank you for your response.

The foundation and authentication is done the same exact way as described above whether you have the video in your possession or whether you want the video from the other party. You have to put on witness testimony about the video and what its purpose was and then you have to put on the party you received the video from or the party who is in charge of making the copy or keeping the videos to testify that the copy you have is a true copy to authenticate it.

If you have a video that YOU took, you have to testify that you took the video and that the video shows what happened in the incident (without saying what actually happened, since the video speaks for itself), that authenticates the video and also lays the foundation for the video.
Customer: replied 1 year ago.


If I feel like I did not get a fair preliminary hearing for determing if there was probable cause for the charges of which I am accused , battery on an officer and resisting arrest can i file a motion or go to the 2nd circuit court of appeal and ask for a writ of mandamus commading the judge and or lower court to give me a rehearing ? and what do you think the proper path would be in order to ask for a rehearing ?

Expert:  Law Educator, Esq. replied 1 year ago.
Thank you for your response.

No, if you feel you did not get a fair preliminary hearing, that is not a final judgment or grounds for appeal. It is also not grounds for mandamus, since you are entitled to go to trial and that is the place where you present your evidence and fight your case. The preliminary hearing, while it does get the court to decide on probable cause, does not mean you are guilty since the court has to find beyond a reasonable doubt you committed the offense, not just there was probable cause for the charges to be filed.

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