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Redacted Brief in Support of a Third Party CRIMINAL Request to Produce

by merlin on October 25th, 2013
  • Sumo

Although it seems to be common practice for the State to obtain video of an criminal act from third parties, and there is a movement in this country to require that law enforcement officers have video cameras on their persons at all times, when a defendant requires the video from a third party, not in the possession of the State, it is not so readily available.  The following is a redacted brief in support of a motion to obtain a subpoena for that purpose.

BRIEF IN SUPPORT OF THIRD PARTY REQUEST TO PRODUCE

 

 COMES NOW Defendant XXXXX, by and through undersigned counsel, and presents this legal summary of the facts and principles supporting his Third-Party Request to Produce to require that a subpoena be issued to XXXXX in XXXXX, Georgia, for video surveillance footage from between X and X AM/PM on XXXXX, 2013, and in support thereof states the following:

 

RELEVANT FACTUAL INFORMATION

On or about XXXXX, 2013, a XXXXX, Georgia, law enforcement officer stopped a vehicle driven by Defendant XXXXX.  At the time, he was driving to his mother’ residence where his ex-girlfriend was staying with their infant son.

Rather than charging him with any crimes for improper operation of a motor vehicle, and after a sobriety test had been administered and promptly successfully passed, the officer at the scene called a different officer to the location to conduct a refused search of the vehicle.  After it was searched thoroughly and nothing was uncovered, the officer obtained the assistance of a K-9 and located a quantity of methamphetamine and marijuana, as well as a set of electronic scales, affixed with adhesive tape to the outside of the undercarriage of the vehicle.

Approximately one week prior to this incident, Defendant had sought the assistance of an attorney to legitimate and obtain custodial rights over his minor son, whom he was en route to visit at the time.  There have been violent disagreements between the mother and Defendant previously, most notably occurring approximately XXXXX earlier, when the same officer that was called subsequently to the scene of the arrest to conduct a K-9 search of the vehicle had been called to Defendant’s mother’s home in XXXXX where a domestic dispute between Defendant and his girlfriend led to her arrest at the hands of the same officer.  At the time, she loudly and repeatedly accused Defendant of selling illegal drugs, and it is believed that she continued this behavior after arriving at the jail and at various other times prior to being bailed out by Defendant.

This third party, the mother of Defendant’s illegitimate child, has an established history of erratic behavior, having left the child in Defendant’s care and custody shortly after the child’s birth while she fled out of State for an unknown destination.  It has also been recently discovered that she has an addiction to the substance whose possession Defendant is charged with, and her former employment at a retail establishment operated by the Third Party from whom Defendant seeks evidence provided her with close contact to another individual that is believed to supply the drug.  They both worked at the same location at the same time and were in regular contact, shown on the video evidence requested, and Defendant’s sexual liason with this supplier, when viewed with the knowledge of his desire to institute child custody proceedings legitimating the minor child of the parties and potentially infringing, therefore, on the guardianship rights held by the maternal grandparents of the child, provided her with a reason and an opportunity to create a criminal interdiction that neutralized Defendant’s ability to legitimate his child while forcing him to merely provide statutory support from behind bars.

 

ARGUMENT AND CITATION TO LEGAL AUTHORITY

“A defendant’s right to present relevant evidence is subject to reasonable restrictions to accommodate other legitimate interests in the criminal trial process.”  U.S. v. Sheffer, 523 U.S. 303, 308, 118 S.Ct. 1261 (1998)(finding against an accused’s right to introduce polygraph evidence before a military tribunal in violation of established evidentiary rules).  In the case at bar, unlike the situation facing the courts in Sheffer, there is no evidentiary rule barring introduction of the requested evidence by Defendant.  In fact, as depicted on the letter sent by counsel for Defendant to the third party seeking preservation of the evidence, a copy of which is attached hereto and incorporated herein as Exhibit “A”, the particular footage requested is specifically identified and a time and date stamp likely accompanies the surveillance There are no other legitimate interests that are infringed by Defendant’s need to establish the common association of the suspected informant, who had access to his vehicle and a motive (child custody), and the suspected source for her supply of the illegal substance whose possession in sufficient quantity to establish intent to distribute Defendant is charged with.

It is an accepted principle of law in Georgia that, in the case of an alibi defense, a criminal defendant is entitled to present evidence that shows that another person or persons committed the crime with which the defendant is charged.  See Dawson v. State, 283 Ga. 315, 316, 658 S.E.2d 755 (Ga. 2008)(dealing with hotel surveillance video in a murder).  However, the evidence cannot merely raise the possibility that someone else might have committed the crime – it must actually establish the identity of the other person alleged to have perpetrated the act, or it is insufficient.  Id.  In the case at bar, Defendant is not presenting a defense involving any alibi, because the criminal act that he is charged with is not one that involves a possibility of another person perpetrating the offense or the vehicle in question belonging to a different individual.  There is no question that XXXXX was operating it and that the drugs were located affixed to the outside of his vehicle.  However, the video sought serves a different purpose than the alibi evidence discussed in Dawson; it establishes opportunity and knowledge between third parties with a direct motive to put him in jail.  Even though this does not involve an alibi, the evidence requested should be considered under the general principle that Dawson stands for – the right of a person accused of a crime to present relevant, admissible evidence tending to exonerate him.

A Notice to Produce is the correct method to use to obtain evidence that the State has in their custody or control, and intends to use at trial.  See generally Sims v. State, 251 Ga. 877 (Ga. 1984).  However, the evidence sought in this situation is not evidence that the State has nor, apparently, that the State cares to obtain; it would muddy the water of an otherwise straightforward conviction.  However, the element of intent is bafflingly absent unless the motives of the third parties involved in this situation revolve around child custody issues.  Care and custody of the minor child are enough in this situation to push the child’s mother to this extreme, and the freedom of Defendant is evidently a secondary consideration for her.  The evidence sought is relevant to Defendant’s innocence and depicts a missing element of the narrative of his conviction that was not apparent in the mere fact of his arrest.

 

CONCLUSION

“In a criminal case a notice to produce … may compel the production of books, documents or tangible things … “where such books, etc., would be admissible and are needed for use as evidence on behalf of the defendant.””  Sims, 251 Ga. At 880 (quoting Wilson v. State, 246 Ga. 62, 64, 268 S.E.2d 895 (1980).  In the case now before the Court, a potential but likely conspiracy involving the coordinated efforts of third parties is advanced by Defendant as the cause of the criminal offenses with which he is currently charged.  It is necessary that he be permitted to place his evidence for this explanation before a jury of his peers, and the requested evidence illustrates the reality of a portion of his story.

Respectfully submitted, this XX day of XXXXX, 2013.

 

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