3. GATHERING EVIDENCE

RULE THREE

NEVER TRY A CRIMINAL CASE UNLESS AND UNTIL YOU HAVE VISITED THE SITE OF THE OFFENSE.

All of the information will have greater impact and be more readily understood, if you know the space about which you are speaking. During preliminary hearing and at trial, particularly with multiple witnesses, you want as much exactness as possible regarding the location of witnesses and events. Nothing is more intimidating to a witness than to be cross-examined by an advocate who knows about what he or she is talking. No act can generate greater credibility with a jury or a judge than obvious knowledge of the objective facts--distances, location, identification of the neighbors and witnesses. All add credibility and indicate to the fact finder that you can be trusted because you know. Your investigation begins with a visit to the scene. There you will see places from which potential witness will be drawn. You might try by using your criss-cross directory and calling people near the site of the offense. Remember that people will not want to testify, but you are just trying to get information and you do not need them to testify at this time. If you later need these witnesses, ask them to testify and if they will not, serve them with a subpoena. This practice may take you to some "unsavory" neighborhoods. Remember to treat everyone with the respect they are due. When you enter a squalid house with threadbare carpeting, remember that you have entered someone's home and act accordingly. Take off your hat and refer to everyone as mister or miss.

    There are numerous other sources of information concerning the case that are more cost efficient and sweeping.

SUBPOENA DUCES TECUM

Rule 3A:12 (b), Rules of the Virginia Supreme Court states, in part, that : "A subpoena, ... may be issued ... and may command the person summoned thereby to produce writings or objects described in the subpoena." Want to know what description the witness gave at the time of the offense? Want to know what the victim told the doctors at the hospital? What to know if your victim is insane? A subpoena duces tecum will set you free. Just describe what you want and within a reasonable time period, always pretrial, the duces tecum fairy will assemble the goodies and deposit them for your inspection and use. Failure to submit the requested information or tangibles will result in contempt, at best, and a continuance, at worst. In Patterson v. Commonwealth 3 Va. App. 1, 348 S.E.2d 28 (1986), it was recognized that a defendant had an absolute right to call witnesses in his behalf, including calling for documents. Failure to grant a request for evidence that could be used a trial is error. See also, Cox v. Commonwealth, 227 Va. 324, 315 S.E. 2d 228. Some district court judges have no serious concerns about appeal. However, remember that due process concerns and errors can develop in a court not of record and the error can be maintained through the felony trial. Stay tuned for amplification. Read Section 19.2-183, Code of Virginia.

    Here are some items that are subject to duces tecum request in the general district court, usually free or one dollar per subpoena or one dollar per witness. Remember further that this is a criminal case so the victim is not a party. Since the parties are your defendant and the Commonwealth, duces tecum material may be requested directly from the victim.

"911"

Did you know that 911 telephone calls are maintained by Emergency Communications for 30 to 90 days following their receipt? Contained on that tape recording is actual voice of the person making the original complaint and giving their voice and usually description of the person and vehicle involved in the crime. Remember that the parameters of probable cause for a warrantless stop will be contained within that tape. Dispatch records Conversations between dispatch and officers in the street, such as relaying 911 requests and (in some jurisdictions) actual communications between officers in the street are kept on tape for 30 days following the transmission. Want to know what the officer thought when he made the stop? Was it a pretext stop? Get the tape.

School records

School records give addresses of victims and, sexual assault or violent assault cases or cases involving "swearing matches"; significant information concerning propensity for violence, or other acts which could subject the credibility of the witness to scrutiny may be available. They also contain guidance referrals and, if the child has been referred for psychological assistance, the name of the doctor will be contained. He will be the subject of your next subpoena.

Original Perk Kit

Did you know that when a woman has a "perk kit" performed she is admitted just like any other patient with personal history and the date of last intercourse and a complete recitation of the facts and circumstances of the sexual assault are recorded?

Surveillance Photographs or Videos

Your client is charged with underringing merchandise at Bradlee's or some other local store. You call the Astore detective" and ask to see the tape recordings and hear the confession that she voluntarily gave during the three hour session. The brain dead store detective tells you that without permission of "their lawyer, the Commonwealth Attorney" you cannot have it. Do not get mad, do not threaten or scream, just issue a subpoena for the store manager or Mrs. B., President, and have her hearing with her tape to be tendered ten days prior to trial preliminary hearing and see the cooperation and brotherhood flow. It will surely warm your calloused and jaded heart.

    If the above is not tendered pretrial as requested, urge for sanctions such as a show cause and move for continuance. Remember that 19.2-183 gives you a statutory right to present evidence in a preliminary hearing and the right to prepare. According to Patterson v. Commonwealth, supra, an accused has the right to call for witnesses and evidence to determine the truth. When a defendant seeks disclosure of documentary or tangible evidence that right is not diminished. Limiting access to records is error. Psychiatric records (Remember the victim is not a party, only a witness. The records of witnesses are subject to duces tecum subpoenas). Bank records There is no restriction or rule stating that access to bank records in "white collar" or financial crimes is limited to the government. Any attorney in the case has equal access to relevant records that may assist in the preparation of the defense.

FREEDOM OF INFORMATION ACT - FOIA

    The Freedom of Information Act is another investigative tool to be used by the defense. Unlike the duces tecum there is no requirement for notice to your opponent. Unlike the duces tecum the freedom of information request can only be issued to government agencies and offices. Some information which can be obtained by FOIA requests would be the training manual for breathalyser operators, the laboratory protocol for DNA tests, the educational records of laboratory technicians. The greatest impediment to the effective use of FOIA is the limitation of the lawyer's imagination and the steadfastness of fooling refusals for production with the threat and application of the lawsuit provisions of the act. If the records are not produced, send a notice letter of lawsuit. If still not sent, move for continuance of your criminal case and file suit against the agency which refuses to produce the information. Remember that the FOIA is based upon the philosophy that "the affairs of government are not intended to be conducted in an atmosphere of secrecy since at all times the public is to be the beneficiary of any action taken at any level of government." Section 2.1-340.1, Code of Virginia. The information of the government is the property of the people and was written and created for the benefit of the people. Note that there is a significant list of areas which insulate agencies from tender of information. However, the burden is on the government to show the insulating section under which protection from tender is sought. Particularly read the section on law enforcement information. It is not a broad a limitation to the citizens as one might think. Be assured that the first time an FOIA request is made the government is going to attempt to sandbag, either by not answering or sending some form letter calculated to hinder and overwhelm the seeking party. It is not valid and most be overcome with a short and direct letter advising of the liability of civil penalty for failure to produce.

Sample FOIA request letter:

NOTE - some larger cities, such as Richmond, have emergency communications offices which operate 911 and radio dispatch. Some smaller cities use the Sheriff's office. You need to determine which is used in your area.

Division of Emergency Communications Richmond, Va 23219

RE: FREEDOM OF INFORMATION REQUEST

Dear Sir: Please accept this letter as my request for tender of information pursuant to the provision of the Virginia Freedom of Information Act, '2.1-340, et seq., Code of Virginia. The information requested is: any and all records regarding a traffic stop at approximately 11:00 a.m. at St. Paul and Charity Streets, Richmond, Virginia on December 24, 1998. The arresting officer was John Smith, badge/code number 2222. If the records are not in the possession of the Division of Emergency Communications, I would request that you forward this request to any agency that you believe may have the records that are responsive to the request. In the alternative, I ask that you inform me of other agencies that might have the requested records. As you are aware, the Freedom of Information Act provides that even if some requested material is properly exempt from mandatory disclosure, all segregable portions must be released. If all material covered by this request is withheld, please inform me of the specific exemptions under which exemption is being claimed. If the requested material is released with deletions, please mark each deletion to indicate the exemption or exemptions being claimed to authorize each particular withholding. In addition, I ask that your office exercise its discretion to release the information that may be technically exempt, but where withholding would serve no important public interest. If the fee for providing the list requested exceeds fifty ($50.00) dollars, instead of copies I would request a list of the documents maintained. If the fees are more than fifty ($50.00) dollars I ask that you advise me of the charges before you comply with the request.

If you have any questions regarding this request, please telephone me at the number on the letterhead. I would be happy to discuss ways in which this request might be clarified or the request restructured to reflect your filing or accounting system and to speed the search and tender of the requested information. I will expect a reply within the statutory period, following the date of this letter.

Sincerely,

    The Freedom of Information Act is an often underutilized tool. Due to this wonderful statute copies of the DUI/Breathalyzer training manual can be obtained, the laboratory protocol for DNA analysis, the PERK training manual and similar government documents can be obtained. This is a tool for which a vivid imagination is not hinderence.

BRADY MOTIONS

Everyone who practices criminal law, even occasionally, understands that Brady material must be tendered to the defense. A few understand that the opinion in Kyles v. Whitley, requires the prosecutor to investigate the police file and places upon the prosecutor the affirmative duty to locate and tender that material. The requirements of Brady are so definitive that most judges merely state that the government understands the duty under Brady. The order is issued almost as a matter of form. It is usually ordered with all the importance of offering a "Gesundheit" in response to a sneeze. Most attorneys include a Brady v. Maryland request as part of their routine discovery motion. The inclusion of the Brady request is equally a matter of form added without consideration of the protection contained in the opinion or the basis for the protection.

    The opinion in Brady has given case law substance to a basic cornerstone of the ABA standards for professional conduct. "A prosecutor should not intentionally fail to make time disclosure to the defense, at the earliest feasible opportunity, of the existence of all evidence or information which tends to negate the guilt of the accused or mitigate the offense charged or which would tend to reduce the punishment of the accused." ABA Standards for Criminal Justice, Prosecution Function and Defense Function 3-3.11(a)(3d ed. 1993). The information subject to disclosure was expanded to include information which could be sued to impeach material witnesses. See United States v. Bagley, 473 U.S. 667 (1985). The requirements of Brady are not discovery or based upon statutory protections. The requirements of Brady are constitutional and arise from the due process provisions of the constitutions. The burden of this last paragraph needs to be analyzed. The opinion in Brady requires timely disclosure of all material which:

1. Which tends to negate the defendant's guilt, that is, evidence which tends to be in opposition to a hypothesis of the defendant being the guilty party. Note must be made that it is not required that the evidence prove the defendant's innocence, but merely that it "tends to negate the defendant's guilt."

2. Tender is required of evidence which mitigates the offense charged. This issue is often forgotten. The language "mitigate the offense" is best understood by example. If the government has evidence that the killing was in the heat of passion, that is, in the second degree, rather than first degree, that information must be tendered to the defense.

3. "Tend to reduce the punishment" means that any information which could explain the absence of malice must be tendered.

    Often information sought by discovery or subpoena, for which the government would object, can be obtained through a Brady motion. By example, if the rape victim has a history of psychiatric admissions, case law states that a duces tecum for her medical records is a "fishing expedition" and the duces tecum can be denied. However, if the request is made as a Brady motion, for tender of the records which "might tend to impeach the testimony of the witness" denial is a constitutional error.

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