Joseph P. Welch

As discussed in the previous installment of this article, Missouri courts have adopted fairly liberal rules regarding the disclosure of evidence before a criminal trial. We’ve already discussed some of the specific items that Missouri Supreme Court Rule 25.03 requires that the prosecution disclose to the defense (you, right?) before trial, so now we should discuss how and when the request should be made, and what happens when the prosecution fails to comply with the law of disclosure.

Again, these rules only apply to felony and misdemeanor cases in Missouri, and the information presented here isn’t intended to be legal advice, so if you’ve been charged with a criminal offense be sure to contact a lawyer in your area, or contact me here.

Supreme Court Rule 25.03, in addition to specifically telling us what kind of evidence the prosecution must hand over, also tells us how our request must be filed. A copy of the request should be delivered to the prosecuting attorney and the original should be filed with the court. Of course, any attorney will get an extra copy file-stamped at the court house to show that it was actually filed with the court on time, and a really good attorney will provide their client with a file-stamped copy also.

The deadlines for filing the request are mandated by Supreme Court Rule 25.02. This rule requires that all requests for disclosure must be filed no later than 20 days after arraignment. One problem that I often face is the case where someone doesn’t retain my services as an attorney until right before their first court date after arraignment, which is usually past the 20 day deadline. However, Rule 25.02 also allows the court to exercise discretion in expanding the 20 day deadline, so in these cases I file a request for disclosure as soon as I enter my appearance of record, and also file a motion with the court for permission to file a late request for disclosure. In this sort of situation I’ve never had a court deny my motion to file late, but ultimately it is up to the court, so you better have a good reason if you’re asking the court to file your request late. Another reason to hire an attorney as soon as possible, and not after you’ve already gone to court, am I right?

Rule 25.02 also requires that the prosecution respond to our request for disclosure within 10 days of receiving it. To be certain, in my request for disclosure I specifically demand a response within 10 days, and if no response is received in that time, I follow it up with a polite letter inquiring why the prosecution isn’t complying with my request. I also file a copy of this ‘polite letter’ with the court.

If at this point the prosecution still fails to comply with the request for disclosure, you can request that the court order their compliance. If the other side fails to obey the court order they may be in contempt of court. At this time the court may grant you additional time to prepare your case and find the evidence you need, or the court may even throw out the evidence the prosecutor failed to turn over. In extreme circumstances the court could fine or even jail an attorney for willfully failing to turn over evidence.

So you see, that’s why we don’t see ‘Law & Order’ style surprise evidence or witnesses very often in the real world, because lawyers have the power to ask for all the evidence, and if the other side fails to turn it over the court can just throw the evidence out. The only time surprise evidence appears at trial is when the defense fails to properly request disclosure and thoroughly investigate the case, which does happen from time to time. Just make sure it doesn’t happen to you.

You can find Rule 25 and a bunch of other rules governing Missouri criminal, civil, and traffic courts online at the Missouri Supreme Court’s website.

joe :: Sep.11.2006 :: Criminal Law :: No Comments »

We’ve all seen the countless episodes of NBC’s Law and Order where there’s always some surprise witness or piece of evidence that shows up at trial, but in the real world the lawyers on both sides of a case try to minimize surprises. If you have a strong case, it is often in your best interest to let the other side see your winning cards before committing to the time, expense, and uncertainty of a trial. Your opponent will often be more than happy to offer you a better deal if they can see that you have a strong case. If your evidence isn’t as good as you thought it was, your opponent will often tell you just how much and why your case sucks in order to force you into accepting a deal more favorable to them. Of course, if you’re totally oblivious to holes in your case the other side won’t always point them out to you, but ultimately it’s your job (or your lawyer’s job) to thoroughly investigate your case to prevent this from happening.

In recent years Missouri courts have adopted fairly liberal rules regarding the disclosure of evidence before a criminal trial. Missouri Supreme Court Rule 25 lists the specific things that must be disclosed to the other side before a trial, and sets out the guidelines for requesting this information, the timelines for making and responding to the requests, and the penalties for non compliance.

When you’ve been charged with a felony or misdemeanor in Missouri, the most important rule is Supreme Court Rule 25.03, which lists out the specific things that the prosecuting attorney must disclose to you if you file the proper request.

Items the prosecution must disclose to the defense:

• Identities of any witnesses the prosecutor will use against you
• Any statements made by those witnesses or recordings or notes regarding those statements
• Any statements made by you or any other defendant whether or not the prosecutor is going to use them
• Any reports made by any experts in connection with the case
• Any books, papers, documents, photographs, etc., that the prosecutor intends to use at trial
• Any books, papers, documents, photographs, etc., that were taken from you (the defendant) whether or not the prosecutor intends to use them
• The criminal records of any witnesses the prosecutor intends to use
• If there has been any electronic or photographic surveillance of you, the prosecutor must disclose a statement of who did it, and when and where it was done
• Any information the prosecutor or police have that tends to help the defense of your case or reduce the severity of the charge against you or the punishment

Of course, this isn’t intended to be legal advice, so if you’ve been charged with a criminal offense please contact an attorney in your area before you go and do anything that could jeopardize your rights.

joe :: Sep.10.2006 :: Criminal Law :: No Comments »

These are the factors taken from the form that I made up, which I copied off of the form in the MoBarCLE DWI Defense deskbook, which probably came from the NHTSA training manuals in the first place.  These 65 separate clues are what officers are trained to look for before they decide whether or not to make you take a field sobriety test… how many of these do you think you could pass while completely sober?
1. Officer’s Initial Observations

• Slowed reactions
• Willingness to take risks
• Impaired vision
• Poor coordination

2. Driving Factors

• Turning with a wide radius
• Straddling center or lane marker
• Appearing to be impaired (they mean drunk, right?)
• Eye fixation
• Gripping the steering wheel too tightly
• Slouching in the seat
• Gesturing erratically… or obscenely
• Face too close to windshield
• Drinking in vehicle
• Sticking your damn head out the window
• Near collisions
• Weaving
• Driving on something other than the road
• Swerving
• Driving less than 10 MPH
• Stopping in a lane for no apparent reason
• Following another vehicle too closely
• Drifting in your lane
• Tires on or crossing the center line
• Braking erractically… or obscenely!
• Drifting into another lane
• Slow response to traffic signals
• Signaling inconistently with your actual driving
• Stopping inappropriately
• Turning abrubtly or illegaly
• Accelerating or decelerating rapidly
• Headlights off

3. When they start to pull you over

• Attempts to flee
• No response
• Slow response
• Abrupt swerve
• Sudden stop
• Striking the curb or anything else

4. Personal Contact

• Bloodshot eyes
• Soiled clothes (dirty socks?)
• Fumbling fingers
• Alcohol containers in vehicle
• Drugs and/or drug paraphernelia
• Bruises, bumps, or scratches
• Unusual actions

• Slurred speech
• Admissions of drinking
• Inconsistent responses
• Abusive language
• Unusual statements

• Odor of alcohol
• Odor of marijuana
• Breath sprays, mints, gum, cologne, or other coverups
• Unusual odors

5. Pre-exit Interrogation

• Driver forgets to produce both license and insurance when requested
• Driver produces documents other than requested
• Driver fails to see documents in his own wallet
• Driver fumbles with or drops wallet
• Can’t retrieve documents using fingertips

6. Exiting the Vehicle

• Shows angry or unusual actions
• Cannot follow instructions
• Cannot open door
• Leaves vehicle in gear
• Has to climb out of vehicle
• Leans on vehicle
• Keeps hands on vehicle for balance

joe :: Sep.10.2006 :: DWI, Criminal Law :: No Comments »

Police officers in Missouri and most other states are trained in DWI detection methods based on standards created by the National Highway Traffic Safety Administration, a federal government agency that helps reduce accidents and fatalities on the nation’s highways.

The NHTSA guidlines break DWI detection down into 3 phases, before the driver pulls over, when the officer makes first personal contact, and when the officer gives the field sobriety tests.

• Phase 1

The first phase involves the officer observing the driver and vehicle in motion before being pulled over. The NHTSA mandates that officers should consider such factors as the driver weaving in his or her lane, failing to pull over in a timely manner, or slumping over the steering wheel when deciding whether or not someone might be intoxicated.

• Phase 2

The second phase involves the officer makig personal contact with the alleged intoxicated driver. The NHTSA guidlines state that the officer should observe the suspect as he or she gets out of the car, and considers factors such as odor (alcohol, breath mints, tobacco, marijuana), stability (i.e., leaning on the car, falling over, etc.), and ability to follow directions. Many people are surprised to find that officers are specifically trained to observe the ‘cover up’ odors of breath mints or gum and use them as evidence that someone is intoxicated.

• Phase 3

The third phase involves the standardized field sobriety tests such as the Walk and Turn, One Leg Stand, and Horizontal Gaze Nystagmus test.

If you get arrested for Driving While Intoxicated in St. Louis, Missouri you need an attorney to fight for your rights. If you or someone you know is arrested please call me at 314-367-HURT to get a free confidential consultation on your case.

joe :: Sep.10.2006 :: DWI, Criminal Law :: No Comments »

News-Leader.com reports that the Missouri Highway Patrol and the Special Operations section of the Greene County Sheriff’s Department used helicopters to capture 900 marijuana plants last month.

joe :: Sep.07.2006 :: Drug Laws, Criminal Law :: No Comments »