April 7, 2010

CALIFORNIA CRIMINAL LAW: DUE DILIGENCE FOR OUT-OF-STATE WITNESSES

The victim here testified at the prelim. But she was out of state when trial was scheduled. The DA used the Uniform Act to Secure the Attendance of Witnesses to get the victim to California, but didni' have the victim arrested when she was uncooperative.

The Cal. Supremes rule that the DA doesn't have to have the victim arrested to establish the
required due diligence. The court goes on and on about how this poor victim would have been arrested. Right, ALL bench warrants for witnesses who fail to appear result in arrest.

People v. Cogswell; 2010 DJ DAR 4897; DJ, 4/2/10; Cal. Supremes

June 21, 2007

PROSECUTORS CAN'T GET DEFENSE DISCOVERY FROM SUBPOENAS

DA NOT A PARTY TO 3RD PARTY DISCOVERY AND CAN'T GET WHAT THE DEFENSE GETS FROM AN SDT (Smith v. Superior Court; 2007 DJ DAR 9151; DJ, 6/21/07; C/A 4th)

In yet another of the many Appellate reversals of San Diego Superior Court Judge Peter Deddeh, the San Diego Fourth District Court of Appeal held - again - that prosecutors have no right to discovery subpoenaed by the defense.

In this case, the San Diego Public Defender issued a subpoena duces tecum for records of the jury commissioner for a jury draw challenge. The Court of Appeal held that the DA does not have the right to participate in the litigation on the discovery of the jury commissioner records.

This is third party discovery and the People aren't a party to such discovery. The Court of Appeal also says that the DA isn't entitled to copies of whatever the defense gets from the jury commissioner, unless the defense uses the information to make a motion. Then, and only then, the only appropriate discovery is limited by Penal Code section. They cite Teal (117 CA4th 488) and the recently amended PC 1326(c), which both say that information obtained by the defense from a subpoena can't be ordered disclosed to the DA except as required by 1054.