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Protective Orders Getting Their 15 Minutes

Posted by Richard Wagner | Aug 17, 2023

Lately, protective orders have made headlines thanks to one of the cases against Donald Trump.

In that case, the government asked U.S. District Judge Tanya Chutkan to issue a protective order.

What is a Protective Order?

Generally, a protective order governs how the parties in a case handle or use the discovery (evidence) in the case. This is one area of the law that is usually overlooked by criminal defense attorneys.

At least it seems to be overlooked in state court. And, especially in Orange County, California.

Here in Orange County, the Orange County District Attorney files a Body-Worn Camera Protective Order in every single case.

BWC Protective Order

The DA simply files the order. They do not file a noticed motion or even a proposed order. They file an order just like the one above, which starts off by declaring, "GOOD CAUSE APPEARING ..."

In virtually every case that I have witnessed, defense attorneys do not object, and the judge issues the protective order. However, as shown below, there is no legal authority for the Orange County District Attorney to get these protective orders.

Despite this fact, most Orange County DUI Attorneys and Criminal Defense Attorneys see no problem with the judge rubber-stamping the DA's request in every single case. 

The Orange County DA's Protective Order Is Unlawful

The main reason the protective order should not be issued (and would not be issued if the defense lawyer merely uttered the word "Yes" to the judge's question, "Any objection?") is California law says protective orders cannot be issued without a finding of good cause.

The law explicitly defines "good cause."

California Penal Code, Section 1054.7, says if the prosecutor wants a protective order it must show there is evidence of:

  • threats or possible danger to the safety of a victim or witness,
  • possible loss or destruction of evidence, or
  • possible compromise of other investigations by law enforcement.

This is why the DA's order begins with "GOOD CAUSE APPEARING ..."

California law prohibits protective orders of the ilk the OC DA files. They are prohibited because they are boilerplate. Each order is the same in every case.  The DA never provides specific evidence for the judge to consider.

The prosecution never explains why the contents of the BWC evidence in a particular case require protection. They never offer proof of how the BWC evidence will put the safety of a victim or witness in possible danger, how evidence will possibly be lost or destroyed, or how other investigations will be compromised. Instead, the DA seeks a boilerplate order in every case where BWC evidence exists. It can almost be guaranteed that no one in the DA's office reviewed the BWC footage before filing the order in which they contend good cause exists for it to be issued.

At first glance, it may seem like the opposition to the protective order is Trump's legal strategy 101: fighting anything and everything, no matter what. That may be true. However, regarding this particular situation, it seemed like good lawyering to oppose such a broad and unjustified request. Furthermore, Judge Chutkan handled the matter professionally. She granted some parts and denied others.

About the Author

Richard Wagner

Attorney Profile Defense Lawyer Richard Wagner upholds and defends freedoms and liberties enshrined in our United States and California Constitutions.  “Richard was able to achieve an even better outcome for my case than what we initially thought was possible. I couldn't be more grateful to h...