CALIFORNIA CRIMINAL LAW: BAD OBSERVATION POST CASE
It seems that every few years we get an observation post case. Here's this year's bad boy. The officer watched a claimed drug sale from a surveillance location. The DA claimed the EC 1040 privilege.
The court sustained the privilege and imposed no sanction. We ought to be winning these, but here we lose. The Court of Appeal stresses that the trial court here permitted extensive cross about distance and angle of view and only barred questions about the exact location where the ofr. was when he saw what he claimed to have seen.
Here is a critical point that we have to emphasize: essentially, the defense was only barred from asking the ultimate question. But the Court of Appeal goes nuts, trying tomake the distinction between relevance and materiality. Sure, it would be relevant to know where the officer made the observations from.
But material? The Court of Appeal finds lack of materiality because the officer's testimony about observations from the location were sufficiently corroborated by independent evidence, so there was no realistic possibility that disclosure would have enabled the def. to raise a
reasonable doubt.
Right, we're sure the defendant is guilty, so nothing you slimy defense lawyers could do would do you any good anyway, so we're just not going to let you do it. Nothing like a presumption of guilt.
People v. Lewis; 2009 DJ DAR 5321; DJ, 4/15/09; C/A 1st
