What is ‘Discovery’?
You never have to be uninformed when you head to court. Our court system guarantees every participant the right to learn certain facts that have been gathered by the other side (a process called “discovery”). For example, in many states you have the right to demand access to a police officer’s notes made at the time or soon after your ticket was issued. You also have the right to demand access to other information, for example the instruction manuals for the equipment that was used to clock your speed and measure your blood alcohol. (You must check with your local court clerk to confirm you have the right to demand discovery in your state.) This information can be essential when cross-examining the officer and presenting your own case at trial.
How to Discover Information
To discover the officer’s notes, you must make a specific written request for the disclosure of all notes or documents relevant to your case. If you have an arraignment, you may be able to do this there. But if, as is far more common, you plead not guilty and post bail without an arraignment, you’ll need to make your request promptly by mail. Send your discovery request to both the police agency that ticketed you and to the local prosecuting agency. The request should be printed or typed on 8½" by 11" paper.
Motion to Compel Discovery: If Your Discovery Request Is Ignored
Because so few defendants ask to see the evidence against them, many police, prosecutors, and even some judges believe this right to discovery is not available in traffic court. Accordingly, even though your discovery request is probably proper in your state, you may find it’s ignored. If so, you’ll need to persist in making this request, reiterating that you believe access to the officer’s notes is critical to presenting your defense. If you get no response to your discovery request within three weeks, you will need to go to court and make a “pretrial motion” to ask the judge to order the police to release the notes to you—lawyers call this a “motion to compel discovery”—or dismiss the case. Your best bet is to call or visit the court clerk to schedule this motion before your scheduled trial date. Failing this, it may be possible to have your motion to compel discovery considered on the day of your trial.
Assuming a pretrial hearing to consider your discovery request is scheduled, be prepared to show the judge a copy of your written discovery request. Then ask him or her to formally order the prosecution or police agency to provide a copy of the officer’s notes. Be sure to ask the judge to order that this be done prior to any scheduled trial date, so you have enough time to use them to prepare. If your discovery request has still been ignored when your trial date rolls around, you may want to ask the judge to dismiss your case.
If the following requirements are met, you may get your case dismissed at this point:
- You are entitled to discovery under state law.
- Your state has a speedy-trial law entitling you to trial within a certain period, and you haven’t given up the right to a speedy trial.
- Postponing the trial to allow the prosecution to get the notes for you would require you to give up your right to a trial within the “speedy trial” time allowed.
- You made your request for “discovery” promptly (and within any time limit).
If the judge won’t dismiss your case, renew your request right then that you be given a chance to examine the officer’s notes. The judge should at least be willing to give you a few minutes to do this.