[Attorney Name], SBN [ ] Firm Name Firm Address City, State Zip Tel: Email: Attorney for Defendant SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF [COUNTY] THE PEOPLE OF THE STATE OF CALIFORNIA Plaintiff, vs. [DEFENDANT’S NAME] Defendant CASE NO. [CASE NUMBER] MOTION FOR IN CAMERA REVIEW OF PUPIL RECORDS; DECLARATION OF [Attorney Name] Date: Time: Dept: Current Trial Date: Case Filed: PLEASE TAKE NOTICE that on the above date and time and in the above-designated department, [NAME OF DEFENDANT] (“Defendant”) will move this court for an order requiring Hayward Unified School District to comply with the subpoena duces tecum served in this cause, and attached hereto as Exhibits 1, for pupil records of the alleged victim in this case, John Doe and to bring said records to court for in camera review and, if good cause is found to exist, disclosing relevant portions to the Defense at an appropriate time. This motion is made pursuant to Education Code § 49076 on grounds of due process of law and the right to confrontation. It is based on this notice of motion, declaration of Patrick Clancy, attached exhibits and the pleadings and papers in this case. This motion will be made on the grounds that good cause exists for in camera review of John Doe’s pupil records as there is a high probability that the requested records contain exculpatory evidence relevant to the central issues in this case, i.e. John Doe’s credibility and/or to cast doubt on and/or rebut any conclusion that John Doe gained knowledge of the alleged sexual acts from Defendant rather than other sources. Dated: March 24, 2022 __________________________ Patrick Clancy Attorney for Defendant I. SUPPORTING FACTS AND CONTENTIONS1 [INSERT SUPPORTING FACTS] PROCEDURAL REQUIREMENTS Generally, Documents and records in the possession of nonparty witnesses, government agencies, members of the press, or other persons or agencies other than agents or employees of the prosecutor are obtainable by subpoena duces tecum. Pacific Lighting Leasing Co. v. Superior Court (1976) 60 Cal. App. 3d 552, 560, 131 Cal. Rptr. 559; see People v. Superior Court (Broderick) (1991) 231 Cal. App. 3d 584, 594, 282 Cal. Rptr. 418 (discovery procedures provided by Proposition 115’s reciprocal discovery scheme (Penal Code §§ 1054–1054.7) are not applicable to discovery from third parties). A subpoena duces tecum does not require the party subpoenaed to provide the defendant with a copy of the materials sought, but does require that person or entity to produce the information in court for the defendant’s inspection. Pacific Lighting Leasing Co. v. Superior Court (1976) 60 Cal. App. 3d 552, 567, 131 Cal. Rptr. 559. If the person or entity subpoenaed asserts a privilege, or relies on a constitutional right, a balance must be struck between the defendant’s right to a fair trial and the rights of the person subpoenaed. In this situation, it is appropriate for the trial court to hold an in-camera hearing to determine whether the defendant should be permitted to view the materials. Cal. Educ. Code § 49076 (a) provides: “A school district shall not permit access to pupil records to a person without written parental consent or under judicial order except as set forth in this section and as permitted by Part 99 (commencing with Section 99.1) of Title 34 of the Code of Federal Regulations.” 34 CFR 99.31 provides: “(a) An educational agency or institution may disclose personally identifiable information from an education record of a student without the consent required by § 99.30 [parental or eligible student consent] if the disclosure meets one or more of the following conditions: …(9)(i) The disclosure is to comply with a judicial order or lawfully issued subpoena.” A trial court determines whether there is good cause to disclose confidential material such as a child’s school records. Kling v. Superior Court (2010) 50 Cal.4th 1068, 1074-1075, 116 Cal. Rptr. 3d 217, 239 P.3d 670. III. GOOD CAUSE EXISTS FOR IN CAMERA REVIEW OF THE REQUESTED PUPIL RECORDS A. In Camera Review is Permitted Upon a Showing of Good Cause In Pennsylvania v. Ritchie [(1987) 480 U.S. 39 [94 L.Ed.2d 40] (Ritchie), the issue was whether a defendant’s rights to confront and cross-examine witnesses and to due process outweighed the state’s interest in the confidentiality of its child protective agency’s investigative files. (Ritchie, 480 U.S. at pp. 42-43.) The defendant was charged with sexual offenses involving his 13-year-old daughter who had reported the offenses to the police, which turned the matter over to the agency. Serving the agency with a subpoena, the defendant sought to discover the agency’s investigative files with respect to his daughter and her accusations as well as the agency’s investigative files with respect to a prior child abuse report by an unidentified source. (Id. at p. 43.) The agency refused to comply with the subpoena, citing the Pennsylvania statute which made the agency’s investigative files confidential. After a hearing in chambers, the trial court denied the defendant’s motion for disclosure of agency’s files. (Id. at p. 44.) At trial, the defendant’s daughter testified against him and defense counsel thoroughly cross-examined her, without limitation on the scope. The defendant was convicted on all counts. (Id. at pp. 44-45.) He appealed, contending that the failure to disclose the agency’s files violated his rights to due process and to confront and cross-examine witnesses. (Id. at p. 45). [T]he due process clause requires the ‘government’ to give the accused all ‘material’ exculpatory evidence ‘in its possession,’ even where the evidence is otherwise subject to a state privacy privilege, at least where no clear state policy of ‘absolute’ confidentiality exists. [Citation.] When the state seeks to protect such privileged items from disclosure, the court must examine them in camera to determine whether they are ‘material’ to guilt or innocence. [Citation.] In Ritchie, the high court held that a complete in camera review of confidential records generated by a state agency as part of a molestation investigation was required where the defendant claimed they might undercut the complaining witness’s credibility and where state law did not bar their disclosure under all circumstances. People v. Webb (1993) 6 Cal.4th 494, 518. In rejecting the state’s argument that disclosure would contravene the state’s interest in confidentiality and the statutorily privileged nature of the agency’s files “on the mere speculation that the file ‘might’ have been useful to the defense,” The Ritchie Court stated: Although we recognize that the public interest in protecting this type of sensitive information is strong, we do not agree that this interest necessarily prevents disclosure in all circumstances. This is not a case where a state statute grants [the agency] the absolute authority to shield its files from all eyes. [Citation.] Rather, the Pennsylvania law provides that the information shall be disclosed in certain circumstances, including when [the agency] is directed to do so by court order. [Citation.] Given that the Pennsylvania Legislature contemplated some use of [the agency’s] records in judicial proceedings, we cannot conclude that the statute prevents all disclosure in criminal prosecutions. In the absence of any apparent state policy to the contrary, we therefore have no reason to believe that relevant information would not be disclosed when a court of competent jurisdiction determines that the information is ‘material’ to the defense of the accused. We therefore affirm the decision of the Pennsylvania Supreme Court to the extent it orders a remand for further proceedings. Ritchie, supra, 480 U.S. at pp. 57-58, fns. Omitted. Education Code section 49076 provides that “[a] school district is not authorized to permit access to pupil records to any person” with numerous specified exceptions including “under judicial order.” As in Ritchie, “[t]his is not a case where a state statute grants [the school district] the absolute authority to shield its files from all eyes.” (Ritchie, supra, 480 U.S. at p. 57.) To obtain in camera review of privileged documents a defendant must first establish good cause for their discovery. People v. Reber (1986) 177 Cal.App.3d 523, 531, 223 Cal. Rptr. 139, disapproved on other grounds in People v. Hammon (1997) 15 Cal.4th 1117, 1124, 65 Cal. Rptr. 2d 1, 938 P.2d 986. “In this context, good cause means a reasonable likelihood that the documents contain information that is both material and favorable to the defense and that the same or comparable information is not obtainable from nonprivileged sources.” B. Good Cause Exists for In Camera Review of John Doe’s Pupil Records In People v. Daggett (1990) 225 CA3d 751, the defendant made an offer of proof that the victim had been molested at age five by two older children and that he had pending juvenile charges against him. In finding the trial court had erred in refusing to hold a hearing based on such an offer, the reviewing court stated: A child’s testimony in a molestation case involving oral copulation and sodomy can be given an aura of veracity by his accurate description of the acts. This is because knowledge of such acts may be unexpected in a child who had not been subjected to them. * * * Here Daggett’s offer of proof was that he learned from an inspection of the prosecutor’s file Daryl told a mental health worker and Doctor Slaughter that he had been molested two older children, ages eleven and eight, when he was five years old. This should have been sufficient for the court to have ordered a hearing to determine whether the acts of prior molestation were sufficiently similar to the acts alleged here. The court erred when it failed to do so. Similarly, the defense here is informed that, in 2014, Defendant and Asha Charles were called to John’s Does elementary school to meet with principal Naomi Watts and a school psychologist. Defendant and Asha Charles were told that John Doe was touching other students’ penises and having them touch his and/or requesting such contact. Thus, it appears likely that John Doe was subjected to acts similar to those he is accusing Defendant of. As recognized in People v. Daggett, supra, in light of the inherent dangers of concluding that the source of the alleged victim’s knowledge of the acts complained of was Defendant, the defense should have been allowed to elicit the victim’s prior sexual history to refute it. Defense is also informed that John Doe’s pupil records contain evidence of his dishonesty and duplicity in making these accusations. C. The Evidence of Character Sought Is Admissible Under Evidence Code § 1101 The prior sexual conduct of the complaining witness, which is evidence of a person’s character or trait of character, is admissible under Evidence Code §1101(c) to support or attack his or her credibility. The prohibition stated in subsection (a) of that section applies to character evidence only when it is offered to prove the conduct of a complaining witness on a specified occasion. Here, the Defense seeks to attack the alleged victim’s credibility, and is thus entitled under section 1101(c) to employ evidence of his prior sexual conduct, prior acts of deceit, prior false allegations and prior lying as evidence to attack his credibility. D. Evidence Code § 1103(c) Does Not Bar Admission of The Alleged Victim’s Prior Sexual Conduct Because Such Evidence Will Not be Offered to Prove his Consent. Evidence Code §1103(c)(1) states, as a general proposition, that “opinion evidence, reputation evidence, and evidence of specific instances of the complaining witness’s sexual conduct…is not admissible by the defendant in order to prove consent by the complaining witness.” However, §1103 does not bar evidence of a victim’s sexual conduct (nor cross-examination of him concerning such conduct) when the evidence is offered to attack her credibility. Evidence Code §1103(c)(3) & (4); People v. Chandler (1997) 56 CA4th 703, 711; People v. Blackburn (1976) 56 CA3d 685, 689-690). Once the defendant makes a sworn offer of proof concerning the relevance of the sexual conduct of the complaining witness to attack his credibility, the protections of §1103 give way to the procedural safeguards of §782. People v. Rioz (1984) 161 CA3d 905, 916. E. Evidence Code § 352 is not a Bar to Admission of the Evidence Sought Generally, cross examination to test the credibility of a prosecution witness should be given wide latitude. People v. Belmontes (1988) 45 Cal.3d 744, 780. “[C]ross-examination is the principle means by which the believability of a witness and the truth of his testimony are tested.” Farrell L. v. Superior Court (1988) 203 CA3d 521, 526. Moreover, it is well established that “[i]n sex cases, broad cross-examination of the prosecuting witness on prior sexual experiences, fabrication and sexual fantasy should be allowed.” People v. Francis (1970) 5 CA3d 414, 417. In People v. Reeder (1978) 82 CA3d 543, 550-551 the court held that “in criminal cases, any evidence that tends to support or rebut the presumptions of innocence is relevant [since] it is fundamental in our system of jurisprudence that all of a defendant’s pertinent evidence should be considered by the trier of fact.” Further, even “Evidence Code Section 352 must bow to the due process right of a defendant to a fair trial and to his right to present all relevant evidence of significant probative value to his defense. In Chambers vs. Mississippi (1973) 410 U.S. 284, 93 S.Ct. 1038, 35 L.Ed.2d 297, it was held that the exclusion of evidence, vital to a defendant’s defense, constituted a denial of a fair trial in violation of constitutional due-process requirements.” Id. at p. 553. IV. CONCLUSION It is therefore respectfully requested that the court order an in-camera review of John Doe’s pupil records from HUSD to determine if, in fact, any are relevant, and if so, to disclose them to the defense at an appropriate time. Respectfully submitted, Dated: March 24, 2022 __________________________ Patrick Clancy Attorney for Defendant I, PATRICK E. CLANCY declare: 1. I am an attorney duly licensed to practice law in the State of California. I am a Certified Criminal Law Specialist. I am the attorney for the defendant in this matter. This matter is set for trial on April 13, 2020. 2. I represent [NAME OF DEFENDANT] (“Defendant”) who is accused of I declare the above under penalty of perjury except as to those matters based upon information and belief and as to those matters, I believe them to be true. Executed in Pleasant Hill, CA on March 24, 2022. [Attorney Name], SBN EXHIBIT LIST

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