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Ask Law Educator, Esq. Your Own Question
Law Educator, Esq.
Law Educator, Esq., Lawyer
Category: Criminal Law
Satisfied Customers: 117437
Experience:  Attorney with over 20 years law enforcement, prosecution, civil rights and defense experience
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I'd like to ask a criminal defense attorney who has

Customer Question

I'd like to ask a criminal defense attorney who has practiced in California, some questions about the rules of discovery, turning over evudence, such as video I'd shoplifting, to the defense. Do you do the phone call for $$ still? I'd like to ask on the phone.
JA: What state is this in? And can you tell me a little more about the charge?
Customer: CA. Man exits store he is arrested for something he stole from same store 6 months ago. Arresting officers say they saw the video of 6 months ago before arresting man. He wasn't accused of anything on that day, nor had he anything on his person. Almost one year from date man supposedly shoplifted. Defense has received all discovery except the video. The main evidence. So......(read above while I ask the bug questing )
JA: OK. To minimize me, please click the down arrow at the top right corner of this box.
Customer: Hypothetically, the accused shoplifter thinks there is no video; (the crime was described in a way that had no similarities to his actions in the store at any time). The preliminary hearing is in 2 days. Still no video. The store has all surveillance on digital media which is known to be emailed quickly and without fuss. It's a state of the art surveillance set up. The defendants lawyer is doing nothing. Defendant asks about motions to exclude video from evidence, due to time restraints and late (or no ) video given to defense. He asks about motion to dismiss. There is only this video; witnesses are not reason he was arrested. It seems obvious that the inability to examine the video leaves the defense unable to properly conduct themselves at preliminary hearing. The expensive defense Atty has his assistants tell dendabt ....
JA: Have you talked to a lawyer yet?
Customer: The video isn't withheld. It's just late. If we get it in the next 18 hours we will go to prelim and make some type of argument. If we don't get it the prelim will be postponed. No lawyer on earth would make a motion to exclude the video from evidence due to its being withheld. Sane with motion to dismiss. Defendant feels there is sometime very very wrong with the above picture.
JA: Anything else you want the lawyer to know before I connect you?
Customer: Nope. Just the defense attorneys intentions (given through his colleague and his inactions) and the time frame. 6 months after arrest no video. Prelim in 18 hours.
Submitted: 9 months ago.
Category: Criminal Law
Expert:  Law Educator, Esq. replied 9 months ago.
Thank you for your question. I look forward to working with you to provide you the information you are seeking for educational purposes only.

Quite honestly, even if he does not have it available at preliminary hearing, it is the prosecution that must produce the evidence to the defense counsel for inspection and the DA that must prove probable cause for the arrest at preliminary hearing and prove the case beyond a reasonable doubt in trial. Without production of the video, the DA is the one who has no case. So the Defendant is not the one who loses here if the video does not exist as the defendant does not have to prove innocence but the prosecution has to prove guilt. His attorney will likely argue that there is no probable cause based on lack of a witness or evidence at the preliminary hearing and then at the same time file a motion to compel production in court to compel the DA to produce any video evidence. If the DA cannot produce it and there is no other evidence or witness, the case is over and the DA has to dismiss.

Also, you say no sane defense attorney would file a motion to exclude the evidence, but quite honestly, without that video the DA has no case, so getting it excluded helps the defendant not hurts them because it hurts the officer's testimony that he saw the video because it is not available to be seen by anyone or the court so the officer's credibility is impeached.


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Customer: replied 9 months ago.
A few things were misconstrued. The question is concerning whether the defense attorney ought to be using the withholding of the video to weaken the case by filing motions, such as to exclude the video If it ever turns up, or motion to dismiss the case.
It is the defense attorney and his office who tell their client that it's not an issue if they've never seen or received the video: its the defendant who is being told by his own attorney that he is incorrect in thinking that the timing of things is an opportunity for the defense. The defense attorney told his client that no defense attorney in his right mind would make such motions, exclusion of video or dismissal of charges, in this position the defendant and counsel are in.
The defense attorney says what will, happen is another postponement of the preliminary hearing. They will wait for the video, no motions. "This happens all the time".
The question I'm asking is , What do you think of the defense attorneys actions and statements. What would you do if you were in the place of the defense attorney? And depending on your answer, what does the defendant do if his attorney is not acting properly.
Expert:  Law Educator, Esq. replied 9 months ago.
Thank you for your reply.

Actually, the defense attorney should be arguing at preliminary hearing that without the video there is no probable cause. Secondly, they cannot argue to exclude the video at this point, first they have to file a motion to compel production AND THEN if it is not produced on the motion to compel they would ask the court to exclude it from ever being used.

It is too soon to move to exclude the video, but eventually if a motion to compel is filed and it is not produced THEN it would be proper to move to exclude it.
Customer: replied 9 months ago.
Would you say that it is not a cause for concern then, if the client has not been contacted about what might in occur following, two hearings listed as preliminary hearings (and are the same hearing which have been referenced througout my hypothesis0 Monday a short hearing occurred in which the judge prosecutor and defense were concerned with making a plan for A) the video being delivered to the defense by 5 PM the next day, which would result in all parties attending the scheduled hearing on the following day, Wednesday. If no video is delivered, the Wednesday hearing is cancelled; the preliminary hearing will be delayed until further notice, rather until the video is delivered.
I think you've given me my answer succinctly. The defense should be arguing no probable cause ...compel to produce.... In my story the defense attorney does nothing. He agrees in court on Monday that if the video arrives on Tuesday he will be at the preliminary hearing on Wednesday. This course of limited action seems to be putting his client in a bad position, at least it's bad compared to an alternate position which could have been attained by arguing the obvious points you mentioned.
By allowing for postponement after postponement, waiting for the video, but doing nothing else, would drag things out, without much else occurring. It's not uncommon for defense attorneys to take a flat fee, which will keep him working for the client until the preliminary hearing is over. The time. when trial is imminent or charges dropped.
In this story the defense attorney could be motivated by hopes of a big payday which is highly likely to occur if he makes no attempts to create the opportunity and atmosphere for dismissal.
In my story the defense lawyer is kown to be extremely intelligent, has unsurpassed experience, and is known to find ways to win which no one else would imagine.
Can you see his choices as any strategy, are there any good reason to have not attempted the motions, or arguments you saw as obvious and reasonable ?
The defendant is feeling snowed: if you were writing this defense attorney as a hero, could you give reasons behind his actions that make any sense?
You can now assume as well that financial difficulties are suddenly thrust upon the defense attorney, where none had been before, clients are now scarce when they had been plentiful.
How does the defendant, get the appropriate behavior from his once infallible representative. Having paid the ridiculously high fees such a force would earn at his best, ***** ***** last thing anyone expected was a complete breakdown in communication and a position of inertia and postponements. Several times this defendant has attempted to get the facts, and is met by statements from the staff which are so illogical the words are barely heard due to coughing and stuttering.
If this all were fact, how egregious is the inaction of the defense, what can the client do to stop the damage?
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Expert:  Law Educator, Esq. replied 9 months ago.
Thank you for your reply.

Quite honestly, the defense attorney does not get extra for dragging things out. He makes more money if the case is handled swiftly. Really he needs to wait and see what happens with the video and if it does not show up then the motion to dismiss is appropriate, but if they do not get the video, I will tell you in most times without any actual witnesses or other evidence the DA is going to dismiss the case. So while I can understand his position and if he wants he can ask his attorney to file a motion for speedy trial which would force the DA to move and get the evidence or dismiss the case within 180 days, but I would actually go with the motion to compel and then if not turned over then the motion to dismiss.