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Protective Orders Getting Their 15 Minutes

Posted by Richard Wagner | Aug 17, 2023

Lately, protective orders have made the big time lately thanks to the 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 in state court, especially in Orange County, California. Here in Orange County, the Orange County District Attorney files a request for Body Worn Camera Protective Order in every single case. 

In virtually every case, 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 having the rubber stamping what the DA is asking for in every 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 defense counsel merely answered 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 specifically 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.

California law prohibits the boilerplate protective orders the OC DA files. They are boilerplate because the DA never provides evidence for the judge to consider.

The prosecution never offers an explanation about why the contents of the BWC evidence requires protection. Instead, it seeks a boilerplate order in every case where BWC evidence exists.

It may seem like the defense opposition to the protective order is Trump legal strategy 101 -- fighting anything and everything no matter what. That may be true. However, regarding this particular situation, it was good lawyering to oppose such a broad 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...