In criminal cases involving child witneses and victims, it is sometimes necessary to try and obtain DFCS records. DFCS records generally involve sensitive information about minor children. So, the government, with good reason, does their best from making those records available to just anyone.
Georgia Law Permits the Defense to Obtain DFCS Records
The defendant in a criminal case has the ability obtain exculpatory evidence that the State possesses. Exculpatory evidence is essentially. any evidence that makes the possibility of the defendant's guilt less likely. DFCS is a state agency so the defendant has a right to any records in their possession that are exculpatory.
Who Decides if the Records are Exculpatory?
The defense does not always receive all of the records from DFCS. Instead, DFCS, when ordered (more on that later) releases the records to the Judge and then the Judge reviews the records and determines which records should be disclosed to the defense.
The Defense Must File a Motion Asking the Court to Order the Production of DFCS Records
Getting the records is not as easy as placing a phone call and requesting the records. DFCS records are generally confidential and no-one is permitted access to them unless the law says that they can.
The provision of the law that the defense must use to obtain DFCS records is O.C.G.A. § 49-5-41. There are several steps required to get such records:
1. The defendant must file a petition with the court requesting that it subpoena the records.
2. The petition must include a request that the court review the records.
3. The petition must be filed with the clerk of court.
4. The Prosecutor must be served with a copy.
5. DFCS must be served with a copy.
6. Court will issue the subpoena if it finds, after review, that the records are reasonably calculated to lead to the discovery of some evidence that can be used in court.
Is it That Easy?
Kind of. DFCS has its own lawyers and, oftentimes, they will file a motion quash the subpoena filed by the defense. If so, there may have to be a hearing on whether or not the judge will grant the defendant's motion.
Our Theory on DFCS Records
Georgia has laws that require certain people to crimes involving children to DFCS. For that reason, there are almost always DFCS records available in any case with a child victim. For that reason we seek to obtain records from DFCS in every single case involving a child victim.
Obtaining DFCS records is a critical step in litigating any case involving a child and always attempt to obtain the records in these cases.