RE: [AlpacaTalk] Re: discovery
OK John,
I will try to answer interlineating your questions.I'
this point, but I will use general principals of law.
Best Regards,
Allison
From: AlpacaTalk@yahoogro
Behalf Of gatewayfarm
Sent: Saturday, February 23, 2008 2:07 PM
To: AlpacaTalk@yahoogro
Subject: [AlpacaTalk] Re: discovery
--- In AlpacaTalk@yahoogro
"Allison Moss-
Fritch" <aemoss17@..
>
> Hi John,,
>
>
>
> Each side in a trial has a chance for discovery to find all relevant
> material for their side of a case and also to see what the other
side has
> that it will use in court. Full disclosure is required by both
sides.
So, when a request for discovery is made, is it generally to ask for
"all material relevant to the case" or "all material your side may
use"? The attorneys for each side are obligated by the court to provide
anything which might be reasonably taken as relevant.and to disclose rather
than omit all "iffy" material. If they are loathe to provide something.they
must make a motion for protection or for guidance from the court.and provide
the "iffy" material directly to the judge. The hearing is one where only
the material in question is provided. It is called an "in camera"
hearing.the judge looks at the material privately without either attorney
getting to look at it. Then the judge makes a decision as to what must be
included in the response.
If you think that your side did not get everything you think that they
should have been given.then a motion for further discovery.and sometimes a
motion to sanction the other side for not disclosing.is made, argued and
decided. If the court decides more should come out.it had best be provided!
I understand that both may be relevant at times, so don't get me
wrong. For instance, a review of evidence used in a felony
conviction is certainly relevant to a filing for post conviction
relief (as in the circumstances I outlined). Certainly anything in the
public record or the trial record would be discoverable by both sides.but
still sensitive material that a court thinks could hurt a party or a private
person should have been redacted.
Hypothetically, the fact that the prosecuting attorney was married to
the third cousin of the victim of the crime would only be relevant if
the defendant was using that fact as part of the basis of their
appeal. The State would be unlikely to request or provide that
information automatically, though the defendant would be obligated to
provide it as part of discovery based on their knowledge that they
planned on using it. Correct? Appeals don't usually take any information
that was not in trial. An appeal is usually a review of procedure and
process rather than evidence. Only if evidence is discovered which was
relevant and could not have been earlier discovered, or was withheld by a
party, does that evidence not considered at trial have a chance to be
considered at the next level, appeal.
How do the sides determine what is and isn't relevant during this
process? A court oversees discovery. A good discovery usually prevents
most cases from ending up in trial. Once both sides really know what the
facts are.many cases settle out. They certainly can't be expected to
produce evverything,
including the kitchen sink. Are there generally accepted guidelines
in determining what might be "relevant" what is extraneous, and what
might be in the grey area? There are very precise written guide lines.
Evidence and Discovery take two years of legal education and there is
continuing legal education of practicing lawyers which is ongoing.
Is there even a grey area, and if so, how
many of shades of grey are there? Infinite shades of grey exist and there
are many cases which are battled out through discovery rather than trial. A
good lawyer wins as soon as possible, so Discovery is a very important part
of the "war" of the courtroom and it occurs before the trial happens. There
are whole law books on discovery and the court is the last say on what comes
in or has to be produced.
I see to remember that discovery played a role in the Duke lacrosse
rape case, and failure to disclose relevant evidence to the defense
resulted in the DA losing his job, his license and has led to
lawsuits against the public agencies involved. Absolutely true. A DA is
supposed to represent the public's right to a fair trial so they can't be
unfair in trying a defendant. They must be fair or the system does not
work. So a DA who is violating the rules is given more severe sanctions
than most civil attorneys as the DA is charged with a "fiduciary" status.
They are charged with trying the right defendant, not just anyone they can
make look guilty.
John Merrell
Gateway Farm Alpacas
http://www.gatewaya
Alpaca, a natural elegance...
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posted by Chaddo at 2:18 PM
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