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Eve of Trial Evidence

March 25th, 2015 No Comments »

Defense Attorney: “I am moving to suppress the officer’s testimony.”

Prosecution: “Why? We disclosed the evidence as soon as we got it.”

-Flashback 12 hours-

It is the night before trial and your email shows a new message.  It is from the attorney you will be in trial with – tomorrow morning.   He writes, “We just realized that there is some evidence we intend use tomorrow that you are unaware of.”  It turns out the officer who arrested your client had a misdemeanor DUI conviction in his past.

In your mind this is front page news.  You counterpart plainly thinks it belongs in the gossip columns – not in a courtroom.

-Flashback 12.2 hours-

 Prosecution: “Why do think this even comes into evidence?”

The question is revealing.  Here lies the problem in your mind.  To you, it is obvious why this disclosure matters.  It is also obvious to you why it is detrimental to your case that it was merely disclosed on the eve of trial.  However, you must decide if your response will be sarcastic in nature or educational.  The former feels so satisfying, but the latter is much more effective.

 Why this evidence disclosed on the eve of trial matters?

What we have what is known as a Brady issue.  Under the U.S. Supreme Court decision of Brady v. Maryland, evidence affecting the credibility of a police officer witness may be exculpatory evidence and should be given to the defense during discovery.

So, how might a misdemeanor DUI conviction in an officer’s past be Brady material? Here are some things you ask the prosecutor to consider:

  • What if, in the undisclosed police reports of the officer’s arrest, he denied drinking any alcohol and later a chemical test contradicted his statement – won’t that be conduct bearing on his truthfulness?  What if, such an untruthful statement was the reason the prior police department ultimately fired him?
  • What if, in the undisclosed police reports of the officer’s arrest, the officer told his arresting officer something like “come on, we both know these field tests are ‘BS’ anyway?”

In addition, under another U.S. Supreme Court decision, Kyles v. Whitely, the prosecution has a duty to look for such information.  This prevents the “ignorance is bliss” defense.

Arizona Criminal Procedure also prohibits such late disclosure

Next you ask the prosecutor to see their affidavit as to why the disclosure was so late. Rule 15.6(d) of the Arizona Rules of Criminal Procedure states:

Disclosure After the Final Deadline. A party seeking to use material and information not disclosed at least seven days prior to trial shall obtain leave of court by motion, supported by affidavit, to extend the time for disclosure and use the material or information…

Of course the prosecutor does not have an affidavit.  The reason being, they could have discovered this information prior to the seven-day deadline.  They just forgot to look.

A reoccurring problem

The above scenario is based on recent events.   “Eve of Trial Evidence” is becoming an increasing problem.  Even when the prosecution is well intended, and turns the evidence over as soon as they get it, it does not solve the problem.  You can’t get a fair trial when you find out about exculpatory evidence on the eve of trial.

Moreover, what a waste of resources this problem creates.  If prosecution actually looks for the evidence when they required to, which was easily discoverable to them, the case probable gets resolved in less than two months versus a year (and numerous court dates.)  Also, think of the jurors that were brought in for the trial.  They all missed work for nothing because a trial will not go forward when such late disclosures occurs.  In the end, no wins when the prosecution only looks for the exculpatory evidence the night before trial.


Court holds that cell-site data protected under Fourth Amendment

October 17th, 2014 Comments Off

The Florida Supreme Court just addressed an issue with national implications. This week’s decision in Tracey v. Florida, addresses the issue of:

“[W]hether accessing real time cell site location information by the government in order to track a person using his cell phone is a Fourth Amendment search for which a warrant based on probable cause is required…”

In particular, regardless of a person’s location on a public road, can the government use of cell site (location) information emanating from their mobile phone for the purpose of tracking them in real time? Moreover, is such government conduct a search protected by the 4th Amendment requiring probable cause?

For the State of Florida, the answer is now yes. The court reasoned that the accused had a “subjective expectation of privacy in the location signals transmitted solely to enable the private and personal use of his cell phone, even on public roads,” and that he “did not voluntarily convey that information to the service provider for any purpose other than to enable use of his cell phone for its intended purpose.”

The decision further stated that “such a subjective expectation of privacy of location as signaled by one’s cell phone—even on public roads—is an expectation of privacy that society is now prepared to recognize as objectively reasonable…”

The Court reasoned that because probable cause did not support the search in this case, and no warrant (based on probable cause) authorized the use of Tracey’s real time cell site information to track him, the evidence obtained as a result of that search was subject to suppression.

A significant take aways from this decision is the Court’s distinction between prior records of similar types of data compared using the technology that gathered this data for purpose of tracking someone in real time. The Arizona Supreme Court has not yet directly addressed this issue.

Categories: Search and Seizure

Vehicle Searches Without A Warrant

October 6th, 2014 Comments Off

Below is an article I came across on the U.S. Supreme Court’s decision in Arizona v. Gant (ruling that law enforcement can’t automatically search a car solely based upon an occupant being arrested). The article, and the previous one mentioned, are worth a read:

Editor: Colin Miller, Univ. of South Carolina School of Law | Monday, October 6, 2014

Back in 2009, I published the article, Stranger Than Dictum: Why Arizona v. Gant Compels the Conclusion that Suspicionless Buie Searches Incident to Lawful Arrests are Unconstitutional. At the same time, I noted in the blog post Arizona v. Gant: A Windfall For The Government? that a portion of Gant could be read to favor the government and cited People v. Osborne, 2009 WL 2026328 (Cal. App. 1 Dist. 2009), as support for my conclusion. Now, my new colleague, Seth Stoughton, has uncovered a case that provides an even better illustration of this point. Here is his analysis of that case…

Read the entire article here:

Categories: Uncategorized

Supreme Court Upholds Warrantless Apartment Search

February 26th, 2014 Comments Off

The U.S. Supreme Court, in Fernandez v. California, has upheld the warrantless search of an apartment when the suspect objected, but his girlfriend (and co-occupant) consented to the search after the suspect was arrested.

The court made an exception to its prior decision in Georgia v. Randolph, which held police cannot search a home when one person who lives there objects and the other consents.

Factual Summary

Police officers observed a suspect in a violent robbery run into an apartment building, and then heard screams coming from an apartment. Police go to the apartment and knocked on the door.

A woman who appears to have been assaulted (blood on her shirt and a bump on her nose), Roxanne Rojas, opens the door.

Walter Fernandez then also comes to the door and told police they had no right to enter.

Suspecting that Fernandez had assaulted Rojas, police arrested him.

The robbery victim then identified Fernandez as his attacker and Fernandez was taken to the police station for booking.

About an hour later, Rojas consented to a search of the apartment.

Majority’s Opinion

Justice Alito wrote the majority opinion.

Putting the exception the court adopted in Randolph to one side “the lawful occupant of a house or apartment should have the right to invite the police to enter the dwelling and conduct a search. Any other rule would trample on the rights of the occupant who is willing to consent.”

The occupant may want the search to quell suspicion, or to remove dangerous contraband.

“Denying someone in Rojas’ position the right to allow the police to enter her home would also show disrespect for her independence…”

“Having beaten Rojas, petitioner would bar her from controlling access to her own home until such time as he chose to relent. The Fourth Amendment does not give him that power.”

Dissenting Opinion

Justice Ginsburg wrote a dissent (joined by Justices Sotomayor and Kagan.)

Instead of adhering to the warrant requirement “today’s decision tells the police they may dodge it, nevermind ample time to secure the approval of a neutral magistrate.”

The decision “shrinks to petite size our holding in Georgia v. Randolph.”

Click here for the entire decision.

SCOTUS, Preliminary Hearings & Brady Material

November 28th, 2013 Comments Off

The United States Supreme Court is deciding whether to hear a case where the prosecution is arguing – Brady evidence is not required to be disclosed before a preliminary hearing.

The cases is: California v. Gutierrez


Does the due process obligation, outlined in Brady v. Maryland, require prosecutors to provide exculpatory evidence to a defendant before a preliminary hearing at which a magistrate determines whether sufficient cause exists to require the defendant to stand trial?

May a state permit a defendant to move for pre-trial dismissal, pursuant to Brady v. Maryland, 373 U.S. 83 (1963), upon learning that the prosecution failed to disclose material exculpatory information in its possession at the time of the preliminary hearing?


• Gutierrez is charged with molesting his two foster daughters.

• The Prosecution fails to turn over evidence that one of the foster children had twice made false claims about her mother’s boyfriend assaulting her.

• Subsequently, the defense discovers police reports about the previous false claims;

• Lower court dismisses the case based on prosecutorial misconduct.


• The First District Court of Appeal in California upholds the lower court’s dismissal.

• A three-judge panel unanimously ruled that the state’s obligation to disclose exculpatory evidence to criminal defendants under Brady v. Maryland (1963) applies not just trials but also to preliminary hearings. The California Supreme Court denied review.


Sep 16 2013 – Petition for a writ of certiorari filed.

Oct 17 2013 – Brief of respondent Gutierrez in opposition filed.

Oct 17 2013 – Brief amicus curiae of Jackie Lacey, District Attorney for the County of Los Angeles filed.

Oct 18 2013 – Brief amicus curiae of California District Attorneys Association filed.

Oct 31 2013 – Reply of petitioner California filed.

Nov 4 2013 – DISTRIBUTED for Conference of November 26, 2013.

A decision from the Supreme Court on whether to hear the case should come soon.

Due Process, Half-Truths, And Brady Material

November 1st, 2013 Comments Off

Real justice means everyone accused of a crime gets a fair process to defend against the accusations. In many cases due process happens. Our system of justice, however, requires that occurs in all cases. This isn’t exactly an onerous requirement. It starts with the truth.

The truth means…

…the whole truth, not a half-truth. A half-truth is a type of lie. A half-truth can make something that is merely a belief appear to be knowledge. A half-truth is a deceptive statement that contains an element of truth. The fallacy uses a kernel of truth in the statement, as support to deceive the recipient into believing the entire statement is true. Half-truths are difficult to detect because they are wrapped in the appearance of believability.

As one court aptly stated:

“[s]quarely false statements are not the problem. They are easily and effectively eliminated from the case law. The more elusive, and therefore more tenacious, culprit is the half-truth. Glenn v. State, 68 Md. App. 379, 381-82, 511 A.2d 1110, 1112 (1986).

The half-truth is most dangerous…

…in criminal prosecutions. The primary safeguard used to help ensure that someone gets due progress is the holding of Brady v. Maryland. Because of Brady, the law requires the prosecution to disclose any evidence that shows a person accused of a crime is actually innocent.

Brady is meant to prevent the half-truth deception. For example, when someone is charged with aiding in a murder by providing a gun to the killer, an eyewitness saying the accused was at the scene carrying a gun is damming evidence. However, are there any other facts that might make you question whether he actually committed the crime?

  • How about if the witness was on felony probation?
  • How about the fact he was on probation for robbery?
  • How about if the witness had a motive to lie?

Here, the half-truth is the witness’s statement about the accused being at the scene while carrying the gun. However, revealing the other half of the truth tells a much different story. Providing only a half-truth means the accused received process. Providing the whole truth means they received due process.

Think the above scenario is far fetched: read this decision from the 9th Circuit that was issued a few days ago.

Executive director of Arizona Medical Board fired

October 14th, 2013 Comments Off

By Yvonne Wingett Sanchez and Mary K. Reinhart
The Republic |

Days after a scathing report accused her of violating multiple state laws and rules, a divided Arizona Medical Board on Saturday fired longtime Executive Director Lisa Wynn during a hastily called special meeting.

That meeting came after Wynn refused to step down.

Board Chairman Gordi Khera called Wynn on Friday and asked for her resignation at about the same time board staff posted the unusual Saturday meeting to discuss her performance.

The board voted 5-4 to fire her; two members of the 12-member board were absent for unknown reasons, and one seat is vacant. Phoenix attorney Tim Nelson, who represented Wynn at the hearing, said that public safety has never been jeopardized, that the report did not prove the public was at risk and that Wynn was acting in the best interests of the agency.

Read the entire article here:

DUI Conviction Overturned – Court Erred By Denying Continuance

September 20th, 2013 Comments Off

Kennedy Case

Six days before his trial, Defendant moved for a continuance in order to substitute new counsel.  Defendant stated:

  • He had concerns with “his current attorney’s defense strategies and trial presentation;”
  • He also explained to the trial court he was uncomfortable with the firm he originally had hired after being transferred between attorneys several times;
  • He did not have the funds to retain new counsel until recently, and he had already paid a substantial consulting fee to the new attorney.

The court denied his motion.  After a jury trial, he was convicted of Aggravated DUI.  On appeal, he argued the trial court erred by denying his motion to continue in order to substitute his counsel, thus denying him the right to counsel of his choosing.

The Trial Court Ruling

The trial court reasoned that “[t]here has been extensive litigation in this case, and, considering the age of the case and the activity in the case, the motion will be denied.” The court also noted its concerns that substitute counsel would not be ready by the scheduled trial date, as required by Rule 6.3(c), Ariz. R. Crim. P.  However, the court did not articulate this concern as a basis for its final ruling.

The Appellate Court Ruling

The Court of Appeals reversed the conviction concluding:

The trial court erred by focusing solely on its own schedule and not giving due regard to Kennedy’s request to exercise his right to counsel of his choosing. See Aragon, 221 Ariz. 88, ¶ 9, 210 P.3d at 1262. The court’s ruling thus constituted “an ‘unreasoning and arbitrary’ adherence to its schedule.” Id.; Morris, 461 U.S. at 11–12. Because the “erroneous deprivation of the right to counsel of choice, ‘with consequences that are necessarily unquantifiable and indeterminate, unquestionably qualifies as structural error,’ “ we must vacate Kennedy’s conviction and sentence. See Gonzalez–Lopez, 548 U.S. at 150, 152, quoting Sullivan v. Louisiana, 508 U.S. 275, 282 (1993); Aragon, 221 Ariz. 88, ¶ 9, 210 P.3d at 1262.

The conviction was vacated and a new trial was granted.

DUI Posts: From My DUI Blog

September 17th, 2013 Comments Off

Here are the latest posts from my DUI Blog:

  • A Reported Result vs. A Complete Result

In DUI cases, a machine called a gas chromatograph is often used to measure an alcohol concentration in a blood sample.   The measurement, which the machine prints at the end of the process, is called a reported result.  We are finally at the point in Arizona, where courts are starting to recognize that merely providing a reported result is not sufficient evidence.  The law is coming to the same realization that science did many years ago: a reported result from a machine is an incomplete measurement…Read the entire post HERE.

  • Scottsdale DUI Blood Tests Ruled Unreliable 

In July of 2012, I asked a member of the Scottsdale Crime Lab for an interview about some rumors. She refused and told me to get a court order.  At that time I was surprised.  Why would she refuse to do a routine interview? 

 Today we know the answer…Read the entire post HERE.

Categories: Appeals, DUI, Falsely Accused

Ambien & Driving Makes The Front Cover of The New York Times

August 14th, 2013 Comments Off

From The New York Times: “To Judge Sleep Aids, U.S. Looks at Drowsy Driving in the Morning.”

The Food and Drug Administration is considering the residual drowsiness that can persist the day after taking prescription sleep aids, and whether users can drive safely upon waking.

Click here to read the story:

Categories: Drug Charges, DUI

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The Arizona Criminal Defense Lawyer Blog is published by Koplow Law Firm. Our criminal practice experience includes a wide variety of defense representation and cases; and is led by Lawrence Koplow, a former prosecutor with the Maricopa County Attorney's Office.

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