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An Officer’s Word: Can I Subpoena the Arresting Officer?

Posted by Christopher Martens | Nov 17, 2017 | 0 Comments

Getting the Information You Need

When facing criminal charges, you should obtain all relevant information about your case, including documents and other pieces of evidence and testimony. Having as much information as you can help you build a strategic defense. Without knowing what you are up against—and what advantages you have—it's hard to properly prepare to fight your charges. In some cases, the arresting officer holds much of that relevant information, especially if there were no witnesses. Fortunately, your attorney may be able to file subpoenas to get the information you need for your defense.

Obtaining Information

A subpoena is basically an order to appear in court. When you subpoena someone, you are asking him or her to appear in court so they can provide testimony. Subpoenas can be used for a variety of purposes and can be useful to both the defendant and the prosecution.

In some cases, you may want to subpoena the arresting officer to make sure he or she appears in court so you can ask questions. After an officer arrests someone, he or she will complete a sworn report. This report typically contains information such as the officer's initial observations, the probable cause for the arrest, any evidence found, the results of any tests (if it's a DUI case), and what you said during the arrest. This information will help the prosecuting attorney decide whether to file criminal charges against you. If he or she does file charges, the report will help determine what those charges should be and how you will be prosecuted. You should be able to get a copy of this report without filing a subpoena. If you want the officer to appear in court so you can question him or her, you should talk with an attorney about the process for making that happen, as you may need to file a subpoena.

The Purpose of a Subpoena

Subpoenas can do a few things. You can subpoena someone to appear in court. If the arresting officer is subpoenaed, you can ask questions about the information in the report. This is helpful if the report is vague or you believe it contains false information.

You can also file a subpoena duces tecum. This is a subpoena used for the production of evidence, typically documents, recordings, or files. These are commonly used to get video or audio recordings, cell phone records, medical records, and other pieces of relevant information. You subpoena the records custodian of the documents, who is then required to provide copies of the requested documents. You should have an attorney help you if you want to file a subpoena duces tecum as you will need to identify the correct custodian for the records you want to obtain and fill out the subpoena properly so the custodian does not disregard the request, which does happen. It takes time for a records custodian to copy and compile the information you ask for, so it's crucial to do it right the first time.

Sometimes, an attorney will file what is called a Pitchess motion. This motion acts like a subpoena for evidence. You can file a Pitchess motion to obtain information about the arresting officer's personnel file. These motions are common in cases where police misconduct may be an issue. For example, if the officer violated your legal rights, used excessive or unnecessary force, lied in their report, or unfairly profiled you, your attorney could obtain background information on the officer. If that file showed a history of disciplinary actions, your argument would be that much stronger.

Without the sworn report or the officer's testimony, you have little chance to fight your charges. The law provides you the ability to subpoena the arresting officer, however, so you can get that information and level the playing field. Many criminal defendants representing themselves aren't aware of this opportunity or don't know how to properly subpoena someone. This is understandable. Filing a subpoena can be complicated, and you will need to get the judge to issue it unless it is a subpoena duces tecum.

If you were arrested and are now facing criminal charges, consult with an attorney about your case. An attorney can evaluate the facts and circumstances specific to your case and advise you on what evidence you should obtain to build your defense. You may need to get certain documents or subpoena certain witnesses to appear in court. An attorney can help you determine what is worth your time and effort and help you file subpoenas if necessary.

Are you facing criminal charges? If so, contact attorney Christopher Martens and his legal team for expert counsel. Experienced in criminal defense, our Visalia area legal team can advise you of your options and help you take steps to prepare a defense, giving you a better chance of fighting your charges. With over ten years of criminal defense experience, Christopher Martens will aggressively defend your rights at trial and help you get the outcome you want. Call our Visalia or Hanford, CA offices at 559-967-7386 or email us at [email protected] for a free consultation.

About the Author

Christopher Martens

Bio Visalia and Bakersfield criminal defense attorney who has dedicated his life to helping those who have been accused of crimes or injured due to the negligence of others.


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