Colorado DUI Laws - DUI Attorney Motion for Internal Police Reports
There's a reason that Top Colorado DUI Attorney Lawyer Christopher Cessna is a Member of America's Top DUI & DWI Defense Attorneys TM :
Chris Cessna Wins Colorado DUI Cases
CALL 1-800-DIAL-DUI (Areas 303 and 720) NOW TO TALK TO COLORADO DUI ATTORNEY CHRIS CESSNA
OR:
Here's a sample MOTION FOR DISCOVERY OF IMPEACHING AND EXCULPATORY EVIDENCE that Colorado DUI Attorney Chris Cessna Uses to defend Colorado Drunk Driving Cases:
MOTION FOR DISCOVERY OF IMPEACHING AND EXCULPATORY EVIDENCE
COMES NOW, the Defendant, M.F.G., by and through the Law Office of Christopher Hunter Cessna, LLC, and through Christopher Hunter Cessna, Esq., a member of the Bar of the State of Colorado, and requests that this Court grant discovery of any impeaching or exculpatory evidence, including, but not limited to, any evidence or information which goes to the credibility of any prosecution witness, including law enforcement officers. As grounds for this motion, the defendant states:
1. The Prosecutor must provide the requested discovery prior to the next critical stage in this case. The Colorado Supreme Court recently ruled that prosecutors must make timely disclosure to the defense of all evidence [or] information known to the prosecutor that tends to negate the guilt of the accused or mitigates the offense. Failure to so disclose is a violation of the Colorado Rules of Professional Conduct.
No. 01SA19, In the Matter of Attorney C - In this case, the attorney-respondent, an assistant district attorney, delayed disclosing exculpatory evidence to the defense until after the preliminary hearings in two cases. A majority of the disciplinary panel found that the respondent's conduct in both cases violated Colo. RPC 3.8(d), which directs prosecutors to "make timely disclosure to the defense of all evidence [or] information known to the prosecutor that tends to negate the guilt of the accused or mitigates the offense." The majority balanced the aggravating factors against the mitigating factors and concluded that the appropriate sanction was a public censure. The respondent appealed to this court pursuant to C.R.C.P. 251.27.
2. This court now holds that Rule 3.8(d) contains a materiality standard requiring a prosecutor to disclose exculpatory, outcome-determinative evidence that tends to negate the guilt or mitigate the punishment of the accused. We further hold that, to fulfill the "timely" disclosure requirement, if evidence is material to the outcome of the trial, then the prosecutor must disclose that evidence in advance of the next critical stage of the proceeding - whether the evidence would particularly affect that hearing or not.
3. The requested discovery for the presentation of a defense and for use by the Defendant for impeachment purposes at trial implicates the due process and confrontation rights of the accused. People v. Thatcher, 638 P.2d 760, 768 (Colo. 1981); Goodwin v. District Court, 197 Colo. 6, 588 P.2d 874 (1979); U.S. Const., amends. V, VI, XIV; Colo. Const., art II, §§ 16, 25; Crim. P. 16.
4. The discovery rules are intended to further the truth-seeking process. Lanari v. People, 827 P.2d 495 (Colo. 1992). "By permitting the prosecution and defense to obtain relevant information prior to trial, the rules also promote fairness in the criminal process by reducing the risk of trial by ambush." Lanari, 827 P.2d at 499.
5. Although the police and prosecution are not required to reduce oral interviews with witnesses to a written report, People v. Graham, 678 P.2d 1043, 1047 (Colo. App. 1983); People v. Garcia, 627 P.2d 255 (Colo. App. 1980), the prosecution must nonetheless disclose any material evidence which is favorable to the accused and relates to either the guilt or punishment of the accused. See Brady v. Maryland, 373 U.S. 83 (1963); People v. Greathouse, 742 P.2d 334 (Colo. 1987); U.S. Const., amends. V, VI, XIV; Colo. Const., art. II, §§ 16, 25; Crim. P. 16(I)(a)(2), 16(I)(d)(1); C.R.P.C. 3.8(d). It is irrelevant whether or not the prosecution acted in good faith in suppressing evidence that is material and favorable. People v. District Court, 808 P.2d 831, 834 (Colo. 1991); People v. Sheppard, 701 P.2d 49, 51 (Colo. 1985).
6. An omission or inconsistency in a statement by a witness is often used to impeach witnesses. See § 16-10-201; CRE 613, 801. "[T]he significance of impeachment evidence in determining the outcome of a criminal prosecution often matches that of substantive or exculpatory evidence." People v. District Court, 790 P.2d 332, 337 (Colo. 1990) (citations omitted); see Giles v. Maryland, 386 U.S. 66 (1967); People v. District Court, 808 P.2d 831, 834 (Colo. 1991); U.S. Const., amends. V, VI, XIV; Colo. Const., art. II, §§ 16, 18, 25.
7. Under the Brady rule, impeachment evidence may be material. United States v. Bagley, 473 U.S. 667 (1985); People v. District Court, 790 P.2d 332, 337 (Colo. 1990). Evidence that simply "tends to negate the guilt of the accused or mitigates the offense" must be turned over to the defense. C.R.P.C. 3.8 (d). Such information need not necessarily be admissible in a trial, but rather, need only be relevant to the conduct of the defense. People v. District Court, 790 P.2d at 338 (referencing Crim. P. 16 (I)(d)(1) disclosures).
8. Whether oral or written, given to a prosecutor or police, information or statements that may be exculpatory must be disclosed to the defense, including omissions and inconsistencies in witness statements. People v. District Court, 808 P.2d 831 834 (Colo. 1991)(prosecution failed to provide defense with impeaching testimony of a witness that contradicted the victim, thereby violating Rule 16 and Due Process, rejecting the prosecution's arguments that the witness only provided cumulative evidence); see People v. District Court, 790 P.2d at 337 (while prosecution notes of witness statements are not automatically discoverable, their disclosure may still be mandated pursuant to Crim. P. 16(I)(a)(2) or Crim. P. 16(I)(d)(1)).
9. Material in the possession of all law enforcement agencies that have participated in the investigation or provided reports concerning the case, is constructively in the "possession or control" of the prosecuting attorney under Crim. P. 16(I)(a)(1). See Chambers v. People, 682 P.2d 1173, 1180 n.13 (Colo. 1984); Ortega v. People, 162 Colo. 358, 426 P.2d 180 (1967); People v. Lucero, 623 P.2d 424 (Colo. App. 1980); Crim. P. 16(I)(c). The prosecution must make efforts to locate and deliver copies of this material to the defense and "[i]t is incumbent upon the prosecutor to promulgate and enforce rigorous and systematic procedures designed to preserve all discoverable evidence gathered in the course of the criminal investigation." People v. District Court, 793 P.2d 163 (Colo. 1990)(Rule 16 violated where prosecutor had no actual knowledge of exculpatory information possessed by police about a witness-informant); see Crim. P. 16(I)(a)(3), (I)(b)(4).
10. The defense does not have the right to the work product of the prosecution. See Crim. P. 16(I)(e)(1). However, this rule only covers "legal research or of records, correspondence, reports, or memoranda to the to the extent that they contain the opinions, theories, or conclusions of the prosecuting attorney or members of his legal staff." Crim. P. 16(I)(e)(1). Notes or the substance of witness oral statements and interviews can still be provided to the defense by excising work product portions of the notes. Crim. P. 16 (III)(e); see People v. District Court, 790 P.2d at 335. Excision may be made in the first instance by the disclosing party, but the ultimate decision on the propriety of withholding excised information in the event of controversy must be made by the trial court. People v. District Court, 790 P.2d at 336. The "work product" rule is not a shield to the discovery of exculpatory and impeaching information.
11. Defendant requests that this Court grant discovery of the substance of any impeaching and exculpatory evidence, including, but not limited to, evidence and any written or oral statements made by witnesses to law enforcement officials or the prosecution that are exculpatory or that contain inconsistencies and omissions from other reports.
12. In addition, the prosecution should be directed to make inquiries to police officers or other investigating officials concerning potential exculpatory evidence and statements.
WHEREFORE, M.F.G. prays that this Honorable Court grant an order for discovery of any impeaching or exculpatory evidence, including, but not limited to, any evidence or information which goes to the credibility of any prosecution witness, including law enforcement officers.
Respectfully submitted,
_____________________________
Christopher Hunter Cessna, #31702
Attorney for Defendant
5400 Ward Road
Bldg. V, Suite 200
Arvada, Colorado 80002
Telephone: 800-DIAL-DUI
ORDER: MOTION FOR DISCOVERY OF IMPEACHING AND EXCULPATORY EVIDENCE
THIS MATTER having come before the Court on the Attorney's MOTION FOR DISCOVERY OF IMPEACHING AND EXCULPATORY EVIDENCE, the Court hereby:
[ ] Grant's Attorney's motion.
[ ] Denies Attorney's motion.
[ ] Sets the Attorney's motion for a hearing on the _______ th day of ______________ , 2005, at ______________ .
DONE this _______ day of ____________________, 2005.
BY THE COURT:
_________________________________
County Court Judge
CALL 1-800-DIAL-DUI (Areas 303 and 720) NOW TO TALK TO COLORADO DUI ATTORNEY CHRIS CESSNA
OR:
Christopher H. Cessna
5400 Ward Road
Bldg. V, Suite 200
Arvada, Colorado 80002
1-800-DIAL-DUI (area codes 303 and 720)
COLORADO DUI DENVER COURTHOUSE INFORMATION
Jefferson http://www.courts.state.co.us/district/01st/dist01.htm
Adams http://www.courts.state.co.us/district/17th/17dist.htm
Broomfield: http://www.courts.state.co.us/district/17th/17dist.htm
Denver http://www.courts.state.co.us/district/02nd/02dist.htm
Arapahoe http://www.courts.state.co.us/district/18th/18dist.htm
Douglas http://www.courts.state.co.us/district/18th/18dist.htm
Gilpin http://www.courts.state.co.us/district/01st/dist01.htm
Boulder http://www.courts.state.co.us/district/20th/20dist.htm
Weld http://www.courts.state.co.us/district/19th/19dist.htm
Elbert http://www.courts.state.co.us/district/18th/18dist.htm
Counties: Jefferson, Adams, Denver, Arapahoe, Broomfield, Douglas, Gilpin, Boulder, Weld, Elbert
Cities: Denver, Golden, Brighton, Littleton, Aurora, Centennial, Broomfield, Castle Rock, Boulder, Greeley, Black Hawk
The most common acronyms for drunk driving in Colorado are:
DUI or Driving Under the Influence, 42-4-1301
DUI per Se or Driving with Excessive Alcohol Content, 42-4-1301
DWAI or Driving While Ability Impaired 42-4-1301
PLEASE FILL OUT A FREE CASE REVIEW TO REACH AN ATTORNEY!!!
Quickly obtaining a DUI attorney, a DWI attorney, or a Drunk Driving attorney to review your case is extremely important! Please complete a FREE CASE REVIEW and submit it as soon as possible, and we will have an attorney in your area contact you immediately.
Because within as little as 10 days of your arrest you may automatically lose your drivers license and even your entire case by delaying your decision to hire an attorney, we strongly recommend that you complete a FREE CASE REVIEW immediately.
CALL 1-800-DIAL-DUI (Areas 303 and 720) NOW TO TALK TO COLORADO DUI ATTORNEY CHRIS CESSNA
OR:
ATTENTION DUI & DWI DEFENSE ATTORNEYS!
INTERESTED IN JOINING AMERICAS TOP DUI & DWI DEFENSE ATTORNEYS?
If you are a qualified attorney who is interested in applying to become a member of “America’s Top DUI & DWI Defense Attorneys™” PLEASE CLICK HERE for more information, or contact Donald J. Ramsell at 630-665-8780 for further information.
