What's a "Motion For Discovery" look like?

[LegallyConfused]

Good afternoon. I am trying to fight a Massachusetts speeding ticket that I know is false and I have heard that it is my right to ask for all evidence related to the case (i.e: the officer's paperwork, notes, video from the cruiser, etc...). To get this information I have learned that I need to file a Motion For Discovery. But I'm not a lawyer and I cannot find any resources that show me what a "Motion For Discovery" looks like. Is it a form? Is it a letter? I have know idea. Can anyone provide an example of this form/letter or a link to such information. Thanks.

 

[Scooterdog]

(Cause No.)

THE STATE OF TEXAS § IN THE COUNTY CRIMINAL
§
VS. § COURT NO OF
§
(DEFENDANT'S NAME) § DALLAS COUNTY, TEXAS


MOTION FOR DISCOVERY


TO THE HONORABLE JUDGE OF SAID COURT:

NOW COMES the Defendant, (Defendant's Name), and moves the Court, under the authority of Art. 39.l4, Tex. Code Crim. Proc. Ann., for discovery and inspection of the following items:
I.
Defendant moves the Court to order the District Attorney to produce and permit by the Defendant or Defendant's counsel the inspection of and the copying and/or photographing of the following:

1. Photographs of the injured party.

2. Names and addresses of the eyewitnesses to the incident.

3. Medical records evidencing the claimed injury to the child.

II.
In support of this Motion, the Defendant would show that the items and information requested are within the exclusive control and custody of the State, the items are not privileged, and that, absent such discovery, the Defendant's rights under Art. 39.l4, Tex. Code Crim. Proc. Ann., Art. l, Sec. l0 of the Texas Constitution, and the Fourth, Fifth and Sixth Amendments of the United States Constitution, will be violated.
WHEREFORE, PREMISES CONSIDERED, Defendant prays that the Court grant this Motion for discovery and inspection.










Respectfully submitted,



____________________________________
(Attorney Name, Address, Bar Card No.)

ATTORNEY FOR DEFENDANT (Name)



CERTIFICATE OF SERVICE


I, the undersigned, hereby certify that a true and correct copy of the foregoing Motion for Discovery was forwarded to Mr. Bill Hill, Dallas County District Attorney. on this the ________ day of , 200 .



____________________________________
(Attorney's Name)



O R D E R


ON THIS the _______ day of , 200 , came on to be heard the foregoing Motion for Discovery, and same is hereby GRANTED/DENIED, to which action Defendant excepted.




____________________________________
J U D G E

 

[Scooterdog]

That's a poor example. Got to your states law library and see if they have a forms packet you can download. You may need to file more than just the motion.

 

[LegallyConfused]

Thanks Scooterdog. I see that your form lists each item requested (i.e: Medical records or photographs of the injured party). What should I request?

Police forms? (is there one?)
Personal notes made by the officer? (do they save them?)
Video footage?(do all police cruisers have them?)
Audio recordings? (Are the police miked?)

I just don't know what to ask for and I'm afraid that if I don't ask for everything specifically then they won't produce it because it might be something that would exonerate me.

 

[Scooterdog]

Ask for things like cops notes, witness's statements, ALL evidence they plan to use against you.

I guess I don't know what you need/want to get. Ask for all of it.

 

[LegallyConfused]

I guess I don't know what you need/want to get.

That's understandable since I have to admit that I don't know what I need/want to get either.

I want all of it. Everything they have on record regarding the traffic stop. I just don't know what that is because I don't know what a police department's require their officers to save.

 

[Scooterdog]

That's understandable since I have to admit that I don't know what I need/want to get either.

I want all of it. Everything they have on record regarding the traffic stop. I just don't know what that is because I don't know what a police department's require their officers to save.

PM your email. I will get you a book out on court room objections, which I think you will need. You can probably beat their ass's on objections alone.

I will also get you generic "travel" papers, which you and over to the bully in blue, end of case, unless it's murder.

You can use the motion to dismiss, if you place your states statutes and constitution in it. They won't respond, it will be dismissed.

 

[Green_Hornet]

The court clerk has the correct forms. Ask the court clerck.

 

[Scooterdog]

The court clerk has the correct forms. Ask the court clerck.

You yourself have to know what form you need, a court clerk CAN NOT supply you with forms if you don't know what you need. In other words, the lowly clerk can not, say/do/"this is the form you need/ or / I think this is the form you need." They can not recomend anything to you. They can provide the forms you ask for, that is all.

 

[Green_Hornet]

You yourself have to know what form you need, a court clerk CAN NOT supply you with forms if you don't know what you need. In other words, the lowly clerk can not, say/do/"this is the form you need/ or / I think this is the form you need." They can not recomend anything to you. They can provide the forms you ask for, that is all.

Trust me a court clerk knows what a MOTION FOR DISCOVERY is. Your correct "They can provide the forms you ask for"

 

[Scooterdog]

Trust me a court clerk knows what a MOTION FOR DISCOVERY is. Your correct "They can provide the forms you ask for"

Green hornet, I come off harsh, so don't take this wrong.

I disagree that a law clerk can "provide" a form for you. They have no legal authority whatsoever, to determine what form you MAY need. If you ask for a specific form, yes, they can drum one up.

You asked about practicing law without a license, same applies here. As a matter of fact, they post in (state court) a list of rules, and that is one they cannot do in Montana. Their job is to stamp and file, that's it.

 

[Green_Hornet]

Of course you have to know what form you need ! The poster already does know that. You are mixing two different threads the clerk is paid to give the paid to give the proper form.
The clerk does not fill out the form.The clerk can not say what to put in the blanks.

 

[LegallyConfused]

Well. I called the local court and asked if the Motion For Dscovery form was available online. Apparently it isn't

The clerk offered to mail it to me but she also explained that I need to have enough time to not only return the request to the courts but to then schedule a hearing so that the court can evaluate my request. That part seems kind of ridiculous to me. Why do I need them to decide whether or not my request is valid? Isn't it my constitutional right to have copies of all evidence that can be used against me before trial? They shouldn't get to decide "if" I have that right.

Not to mention, the "justice hearing" (the trial date) as she called it is scheduled for early January. I mentioned to her that I was worried that there wouldn't be enough time before the justice hearing after I got the form, filled it out, returned it, scheduled a hearing to review it and then had the hearing.

She was, like, "Welllll, maybe in that case you'll just have to push out the justice hearing a little." She was very laid-back about this. But I've got a bad feeling that it's not that easy to reschedule these things. It's my impression that the courts just want to get these thing over and done with as soon as possible so that they can collect their ill-gotten loot. I don't imagine that they are willing to reschedule traffic court dates for anything less then a death in the family.

Am I being too cynical here or are my rights to a fair trial being quickly over-run by the courts craving for a speedy trial?

 

[Scooterdog]

Do you have to file a brief with that? An affidavit? That's why I said to avoid a dirt bag clerk, becuase if these things are needed, and you don't file them, your sol, and it ain't the clerks fault.

 

[Green_Hornet]

That's why I said to avoid a dirt bag clerk, becuase if these things are needed, and you don't file them, your sol, and it ain't the clerks fault

I don't know what the beef is with court clerks.I have a suspicion you have not interacted with enough of them to make that statement. Below is a standard description of the duty of a court clerk.
Job Description for Court Clerk:
Responsible for clerical and administrative duties in a court of law. Maintains a docket of filing and hearing dates to ensure deadlines are met. Arranges and records payments of fees and fines. Assembles documents and materials for court proceedings. Follows organization and departmental procedures to complete tasks in a timely manner. Requires a high school diploma or its equivalent with 0-3 years of experience in the field or in a related area. Has knowledge of commonly-used concepts, practices and procedures within a particular field. Relies on instructions and pre-established guidelines to perform the functions of the job. Works under immediate supervision.

Most of the ones I have dealt with are very helpful especially to those that are unfamiliar with the proper filing method.

 

[LegallyConfused]

Well, I got my mailing from the court clerk. Except I have no idea what it is. I asked her for a Motion for Discovery form. Instead she sent me a form called a: Motion To The Court And Affidavit. It includes check boxes to request certain actions including: Continuance, Remove Default, Remove Dismissal, Speedy Trial, New Trial, Revise or Revoke Sentence, Amend or Extend an Abuse Prevention Order, Withdraw From Representation or Other. None of these obviously cover my request for a Motion For Discovery except maybe "Other". But if it were "Other" then why even tell me that there is such a form when clearly there isn't. "Other" does not constitute a form in my opinion.

 

[Green_Hornet]

Oh look modern discovery rules generally provide documents discovered between party's as soon as the action is commenced. In your state it appears no court order is needed.
Simply ask the opposing party for access to the documents or things that you to investigate. Any document that is relevant not privileged and within control of the party may be discovered. You don't have to make a motion just walk into whoever is prosecuting this,and ask to review it. I was looking at scooterdogs post thinking it was an actual motion.

 

[Scooterdog]

Sample of Discovery

MOTION FOR DISCOVERY
It is respectfully submitted that excludable delay
pursuant to 18 U.S.C. Sec. 3161(h) may in fact occur as a result of
this Motion.
COMES NOW Defendant , by and through his counsel,
William A. Cohan and Carl E. Stahl of the law firm of Cohan & Stahl,
and moves pursuant to Rules 6, 7, 12, and 16, Federal Rules of
Criminal Procedure, and the Fourth, Fifth and Sixth Amendments to the
Constitution of the United States of America that this Court order
the government to comply with each of the following requests:
1. To state whether it intends to offer any evidence of
any prior or subsequent "bad act" of defendant pursuant to Federal
Rule of Evidence 404(b) or otherwise and, if so, to describe with
particularity said act, including in such description its time and
place, the method or means of introducing such evidence, and an
identification of ali witnesses intended to be called by the
government to offer such evidence%
2. To state whether it intends to offer any evidence of
any prior criminal conviction of defendant should he testify,
pursuant to Federal Rule of Evidence 609 or otherwise and, if so ,
to state the particulars of said conviction;
3. To state whether it intends to offer any documents or
witnesses who reside outside the District of North Dakota and if so,
to disclose such documents and state the names, telephone numbers and
addresses of such witnesses without delay and in an expedited manner;
4. To provide defendant's counsel an opportunity, if necessary, at
a time and location set by the Court to meet personally with any and
all witnesses whom the government expects to call at trial and who
are presently subject to the control of any government agency and
request that they consent to a pre-trial interview%
5. To disclose any statement by any person named in the
instant Information:
6. To state whether it intends to offer any evidence of
any prior or subsequent "bad act" of any persons . named in the
instant Information pursuant to Federal Rule of Evidence 5404(b) or
otherwise and, if so, then describe with particularity said act,
including in such description its time and place, the method or means
of introducing such evidence, and an identification of all witnesses
likely to be called by the government to offer such evidence;
7. To state whether it intends to offer any evidence of
any prior criminal conviction of any person named in the instant
Information, should he testify, pursuant to Federal Rule of Evidence
609 or otherwise and, if so, to state the particulars of said
conviction and provide a certified copy thereof;
8. To state whether any potential witnesses were
subjected to polygraph in connection with the investigation and
preparation of this or any related information or indictment;
9. To state whether the government is aware of any audio
or video tape or photographic recordings of defendant or any person
named in this or any related information or indictment; and, if so,
to describe the date, location and circumstances of such recording
and provide defendant with access to any such recording and/or
transcripts prior to trial;
10. To disclose any of the following papers, books,
writings and documents in the government's possession regardless of
whether the government intends to offer it at trial:
(a) Any and all documents and things which
were obtained in this investigation,
regardless of whether presented to the
&rand Jury for the purpose of consideration
of whether probable cause existed for the
return of an indictment against defendant;

(b) Any and all telephone toll records in
its possession for any telephone subscribed
to or known to be used by defendant or his
counsel, or any members of defendant's
family;
(C) Any and all telephone toll records in
its possession for any telephone subscribed
to by any person named in the instant
Information or any members of his family;
(d) Any and all telephone toll records
which were acquired as a result of the
investigation of defendant or any other
person named in the Information;
(e) Any and all records 0@ any pen
register, or traps placed on any telephone,
private or public, within the scope of
subparagraphs lO(a), (b) and (c), supra,
and any logs or transcripts reflecting the
result of such procedure;
(f) Any and all photographs or tapes of any
video or audio recording device used for
the purpose of acquiring information or
evidence regarding defendant or any person
named in the Information;
(g) Any documents or things acquired from
defendant; (h) Any documents or things
acquired from the Internal Revenue Service
and relating to defendant, his assets
and/or his expenditures;
(i) Any documents or things acquired from
any source relating to defendant, and
Pertaining particularly, but not
exclusively, to his finances, assets and/or
expenditures;
(j) Any documents or things acquired from
any source relating to any persons named in
the Information, including without
limitation data concerning their finances,
assets and/or expenditures;
(k) Any documents or things reflections the
initiation, execution or results of any
mail cover or openings utilized to
investigate defendant or any person named
in the instant Information or any person
the government contends was a
co-conspirator of defendant;
(i) Any docuMents reflecting the
initiation, execution or results of any pen
registers or traps installed to investigate
defendant or any person named in the
Information, including any application for
and/or Court orders for such pen registers,
regardless of whether they were utilized;
(m) Any documents reflecting the
initiation, execution or results of any
investigative use of video cameras and/or
any electronic surveillance or
eavesdropping equipment to investigate
defendant or any person named in the
instant Information, including any
application for and/or Court orders for any
electronic surveillance; regardless of
whether they were implemented;
(n) Any applications or orders seeking
information about defendant or any person
named in the Information pursuant to 26
U.S.C. Sec. 6103 and specifically, the date
on which the process of Sec. 6103 was
evoked; (0) Any "consensual" electronic
surveillance conducted to acquire
information about defendant or any person
named in the instant Information and any
documentation reflecting administrative
procedures utilized to obtain authority to
conduct Such surveillance;
(P) Any and all surveillance logs or
documents reflecting the whereabouts of
defendant or any person named in the
instant Information;
(q) Any and all investigative reports of
any government agency which contain
memoranda and/or interviews with person@
who will not be called as witnesses at
trial and who were interviewed as part of
the investigation which culminated in the
instant Information;

 

[Scooterdog]

11. To disclose a list of all witnesses, including their
names, telephone numbers and addresses, likely to be called to
testify at trial. Additionally, to provide a list of the identities
of each and every:
(a) Eyewitness to the commission of any
offense, or any overt act in furtherance of
any offense alleged in the information;
(b) Informant who was present at the
commission of any offense, or any overt act
in furtherance of any offense alleged in
the Information:
(C) Unindicted and/or uncharged
co-conspirator known to the government;
(d) Witness who has been granted statutory
or de facto immunity as to the offenses
charged in this or any related information
or indictment; and
(e) Expert witness likely to testify.
12. To disclose any statements in the custody or control
of the government by persons the government does not expect to call
at trial, that relate to defendant or the offenses charged,
particularly, but not exclusively, statements as to his activities,
finances, associations, and his state of mind for all prior years to
the present;
13. To state whether any person named in the instant
Information or any defendant in any related case has provided
information to the government about the offenses charged in an effort
to obtain consideration, i.e., has cooperated or has indicated an
intention to provide such information, and, if so, the date when such
communications commenced and the substance of such communications;
14. To disclose all reports and results of all
scientific tests and examinations, including information as to t@e
basis of any expert's scientific conclusion(s);
15. To permit independent access to any analysis of@ any
physical evidence%
16. To state and/or disclose the following:
(a) The dates evidence was presented to any
grand jury considering the offenses charged
in the instant Information;
(b) The identity, by name or by code (e.g.,
a different letter for each individual
Grand Juror) of the Grand Jurors present on
each such date;
(C) The identity, by name or by code, of
the Grand Jurors who voted to indict
defendant;
(d) The names of witnesses who testified
before any Grand Jury considering the
offenses charged in the instant
Information:
(e) The names of witnesses who testified to
any Grand Jury considering the offenses in
the instant Information under statutory or
de facto immunity promises as to the
consequences of their testimony;
(f) The identity of all persons who
received transcripts of Grand Jury
testimony, documents subpoenaed by the
Grand Jury, or any other Grand Jury
material presented to any Grand Jury
considering the offenses charged in the
instant Information and any judicial order
authorizing or notifications evidencing
such disclosures;
(g) The purpose for which the persons
identified in subparagraph
(f), supra, received such disclosure;
(k) The transcript of any statements of law
and or legal instruction provided any Grand
Jury investigating Sharon or John Voss
and/or the National Commodity and Barter
Association's members by any government
attorney or witness;
(i) The transcript of any other statements
made by any government attorney or witness,
including, but not limited to, responses to
questions of Grand Jurors;
(j) The dates when any Grand Jury
considering the offenses charged began and
completed service, and if any were Grand
Juries convened pursuant to 18 U.S.C. Sec.
331, the application and order for the
initiation and/or extension of such Grand
Juries;
(k) The identity of any government attorney
presenting evidence to any Grand Jury as
aforesaid;
(1) The identity of any person, other than
the Grand Jurors, the attorneys for the
government, the witness under examination,
any necessary interpreter, stenographer or
operator of a recording device who was
present when any Grand Jury considering the
offenses charged in the instant Information
was in session; and
(m) The identity of any person designated
"agent of the Grand Jury" or purportedly
endowed with any title or office by the
Grand Jury in connection with any Grand
Jury considering the offenses charged in
the instant Information.
17. To identify and produce the following:
(a) All reports, memoranda and other
documents prepared by Internal Revenue
Service agents or other persons, including,
but not limited to, referral reports that
concern defendant's financial situation and
status with respect to the Internal Revenue
Code;
(b) All reports, memoranda and other
documents prepared by Internal Revenue
Service agents or other persons, including,
but not limited to, referral reports that
concern the possibility of civil and/or
criminal proceedings or the initiation of
Grand Jury proceedings against defendant;
(c) All reports, letters and other written
Communications between Internal Revenue
Service agents and/or other officials and
agents and/or other officials of the United
States Department of Justice that concern
possible or actual civil and/or criminal
proceedings against defendant;
(d) All reports, memoranda and other
documents regarding any requests made under
I.R.C. Sec. 6103(h) (3) (B) for any tax
returns or tax return information relating
to defendant or any person named in the
instant Information.
Each of these requests is of a continuing nature and
calls for supplementation of any answer as soon as the government
discovers additional responsive material. In addition, each request
in each paragraph of this letter is specifically sought under the
rule of Brady v. Maryland, 373 U.S. 83 (1963), and United States v.
Agurs, 4.27 U.S. 97 (1976), and their progeny, as well as applicable
rules of discovery.
RESPECTFULLY SUBMITTED this ____ day of March, 200

 

[Scooterdog]

Mass. Discovery

(You will want to make sure this is current)

Rule 14. PRETRIAL DISCOVERY

(Applicable to cases initiated on or after September 7, 2004)

(a) Procedures for Discovery.

(1) Automatic Discovery.

(A) Mandatory Discovery for the Defendant. The prosecution shall disclose to the defense, and permit the defense to discover, inspect and copy, each of the following items and information at or prior to the pretrial conference, provided it is relevant to the case and is in the possession, custody or control of the prosecutor, persons under the prosecutor's direction and control, or persons who have participated in investigating or evaluating the case and either regularly report to the prosecutor's office or have done so in the case:

(i) Any written or recorded statements, and the substance of any oral statements, made by the defendant or a co-defendant.

(ii) The grand jury minutes, and the written or recorded statements of a person who has testified before a grand jury.

(iii) Any facts of an exculpatory nature.

(iv) The names, addresses, and dates of birth of the Commonwealth's prospective witnesses other than law enforcement witnesses. The Commonwealth shall also provide this information to the Probation Department.

(v) The names and business addresses of prospective law enforcement witnesses.

(vi) Intended expert opinion evidence, other than evidence that pertains to the defendant's criminal responsibility and is subject to subdivision (b)(2). Such discovery shall include the identity, current curriculum vitae, and list of publications of each intended expert witness, and all reports prepared by the expert that pertain to the case.

(vii) Material and relevant police reports, photographs, tangible objects, all intended exhibits, reports of physical examinations of any person or of scientific tests or experiments, and statements of persons the Commonwealth intends to call as witnesses.

(viii) A summary of identification procedures, and all statements made in the presence of or by an identifying witness that are relevant to the issue of identity or to the fairness or accuracy of the identification procedures.

(ix) Disclosure of all promises, rewards or inducements made to witnesses the Commonwealth intends to present at trial.

(B) Reciprocal Discovery for the Prosecution. Following the Commonwealth's delivery of all discovery required pursuant to subdivision (a)(1)(A) or court order, and on or before a date agreed to between the parties, or in the absence of such agreement a date ordered by the court, the defendant shall disclose to the prosecution and permit the Commonwealth to discover, inspect, and copy any material and relevant evidence discoverable under subdivision (a)(1)(A)(vi), (vii), and (ix) which the defendant intends to use at trial, including the names, addresses, dates of birth, and statements of those persons whom the defendant intends to use as witnesses at trial.

(C) Stay of Automatic Discovery; Sanctions. Subdivisions (a)(1)(A) and (a)(1)(B) shall have the force and effect of a court order, and failure to provide discovery pursuant to them may result in application of any sanctions permitted for non-compliance with a court order under subdivision 14(c). However, if in the judgment of either party good cause exists for declining to make any of the disclosures set forth above, it may move for a protective order pursuant to subdivision (a)(6) and production of the item shall be stayed pending a ruling by the court.

(D) Record of Convictions of the Defendant, Codefendants, and Prosecution Witnesses. At arraignment the court shall order the Probation Department to deliver to the parties the record of prior complaints, indictments and dispositions of all defendants and of all witnesses identified pursuant to subdivisions (a)(1)(A)(iv) and (v) within 5 days of the Commonwealth's notification to the Department of the names and addresses of its witnesses.

(E) Notice and Preservation of Evidence. (i) Upon receipt of information that any item described in subparagraph (a)(1)(A)(i)-(viii) exists, except that it is not within the possession, custody or control of the prosecution, persons under its direction and control, or persons who have participated in investigating or evaluating the case and either regularly report to the prosecutor's office or have done so in the case, the prosecution shall notify the defendant of the existence of the item and all information known to the prosecutor concerning the item's location and the identity of any persons possessing it. (ii) At any time, a party may move for an order to any individual, agency or other entity in possession, custody or control of items pertaining to the case, requiring that such items be preserved for a specified period of time. The court shall hear and rule upon the motion expeditiously. The court may modify or vacate such an order upon a showing that preservation of particular evidence will create significant hardship, on condition that the probative value of said evidence is preserved by a specified alternative means.

(2) Motions for Discovery. The defendant may move, and following its filing of the Certificate of Compliance the Commonwealth may move, for discovery of other material and relevant evidence not required by subdivision (a)(1) within the time allowed by Rule 13(d)(1).

(3) Certificate of Compliance. When a party has provided all discovery required by this rule or by court order, it shall file with the court a Certificate of Compliance. The certificate shall state that, to the best of its knowledge and after reasonable inquiry, the party has disclosed and made available all items subject to discovery other than reports of experts, and shall identify each item provided. If further discovery is subsequently provided, a supplemental certificate shall be filed with the court identifying the additional items provided.

(4) Continuing Duty. If either the defense or the prosecution subsequently learns of additional material which it would have been under a duty to disclose or produce pursuant to any provisions of this rule at the time of a previous discovery order, it shall promptly notify the other party of its acquisition of such additional material and shall disclose the material in the same manner as required for initial discovery under this rule.

(5) Work Product. This rule does not authorize discovery by a party of those portions of records, reports, correspondence, memoranda, or internal documents of the adverse party which are only the legal research, opinions, theories, or conclusions of the adverse party or its attorney and legal staff, or of statements of a defendant, signed or unsigned, made to the attorney for the defendant or the attorney's legal staff.

(6) Protective Orders. Upon a sufficient showing, the judge may at any time order that the discovery or inspection be denied, restricted, or deferred, or make such other order as is appropriate. The judge may alter the time requirements of this rule. The judge may, for cause shown, grant discovery to a defendant on the condition that the material to be discovered be available only to counsel for the defendant. This provision does not alter the allocation of the burden of proof with regard to the matter at issue, including privilege.

(7) Amendment of Discovery Orders. Upon motion of either party made subsequent to an order of the judge pursuant to this rule, the judge may alter or amend the previous order or orders as the interests of justice may require. The judge may, for cause shown, affirm a prior order granting discovery to a defendant upon the additional condition that the material to be discovered be available only to counsel for the defendant.