The trial will proceed at an extremely fast pace. The prosecutor already knows what questions he will ask. The officer already knows what to say to the prosecutor’s questions, they have done this dozens of times. You will not be able to understand everything they say.
*Note*: Pay attention only to the testimony regarding the calibration. When it comes to your turn, only go for the calibration. Ask as few questions as possible, do not open the door for the prosecutor. Once the point is made, stop and ask for a dismissal. Do not continue unless your motion is denied.
Try Not to Be Nervous
You will be nervous, take your time, read your notes, ask the prepared questions you have written down. You are allowed to read from your paper. If they deny it, immediately appeal.
Do Not Give In
The prosecutor will try to have you take the witness stand. DO NOT DO IT. You may be tempted to take the stand so that you can tell your side. DO NOT DO IT. Your story is not important and will never lead to a dismissal or not guilty verdict.
*Note*: Only ask questions, never give an answer. A question asked can never be used against you. If you freeze, ask the judge for a moment to regain your composure and read your notes. Most of all, keep the questions to as few as possible, and stay on target.
Reduced Charge
Before the trial, the prosecutor may make you an offer for a reduced charge. TAKE IT. That is reducing the charge to a non moving violation. The judge knows that on appeal his ruling will most likely be overturned, but you have to put up a bond for appeal, hire a lawyer, and spend lots of money.
Saturday, August 8, 2009
Watch Your Mouth...
Your intent is to catch the prosecution unprepared. If you tip them off by letting them know your intentions, they may produce the necessary documents at the trial.
Avoid these mistakes at all costs:
• Do NOT motion the court before the trial for any documents.
• Do NOT motion the court for their evidence before the trial.
• Do NOT testify, even if the prosecution challenges you to testify.
• Make no statement regarding your speed. Do not let the prosecution con you into making a statement. The burden of proof is on their shoulders. Don’t make their job easy for them.
• Do NOT let the prosecution know your intentions.
Assembly Line
Speeding trials are an assembly line. The prosecution does not have the time to gather the documents for every case they will hear. Dozens of people will be tried, only a few minutes devoted to each one. The prosecution expects you to fold. Don't tip them off by asking in advance for the documents, they will know what you are up to and bring all the paperwork.
Reasonable Information
In your case, you are only asking for documents any prosecutor would present. The fact that the prosecutor doesn’t present them is not your fault or responsibility. He is a trained lawyer. He knows the items requested are required. The fact the prosecutor did not come prepared, he cannot claim trial by ambush, even if you surprised them when you asked for the documents.
No Objections
During the officer’s testimony, do not object to anything! Wait until it is your turn, do not tip them off. If you object when the officer introduces the radar evidence, you open the door for the prosecution. They will realize your intent. Wait until prosecution rest it case.
*Note*: Once the prosecution has rested, they cannot bring in or introduce additional evidence, they are finished.
Avoid these mistakes at all costs:
• Do NOT motion the court before the trial for any documents.
• Do NOT motion the court for their evidence before the trial.
• Do NOT testify, even if the prosecution challenges you to testify.
• Make no statement regarding your speed. Do not let the prosecution con you into making a statement. The burden of proof is on their shoulders. Don’t make their job easy for them.
• Do NOT let the prosecution know your intentions.
Assembly Line
Speeding trials are an assembly line. The prosecution does not have the time to gather the documents for every case they will hear. Dozens of people will be tried, only a few minutes devoted to each one. The prosecution expects you to fold. Don't tip them off by asking in advance for the documents, they will know what you are up to and bring all the paperwork.
Reasonable Information
In your case, you are only asking for documents any prosecutor would present. The fact that the prosecutor doesn’t present them is not your fault or responsibility. He is a trained lawyer. He knows the items requested are required. The fact the prosecutor did not come prepared, he cannot claim trial by ambush, even if you surprised them when you asked for the documents.
No Objections
During the officer’s testimony, do not object to anything! Wait until it is your turn, do not tip them off. If you object when the officer introduces the radar evidence, you open the door for the prosecution. They will realize your intent. Wait until prosecution rest it case.
*Note*: Once the prosecution has rested, they cannot bring in or introduce additional evidence, they are finished.
No More Witnesses
They cannot call any more witnesses unless they are rebuttal witnesses to your cross-examination of the officer. Because you are asking for documentation, they cannot legally call another witness. All they can do is present paperwork, which they do not have at trial that day. Without that evidence the prosecution has nothing. The evidence given by the officer is useless, so remember, do not tip them off.
Good Offense
You have, in essence, ambushed the prosecution. They may attempt to introduce new evidence, don’t let them. Argue that the prosecution rested. Presenting logs or documentation that you ask for is not new evidence.
No Jury
Do not ask for a jury trial. The prosecutor will prepare for that. Unknown to you, at a jury trial the prosecutor can ask for the full punishment allowed by law, including jail time for going over the speed limit. A jury trial takes a lot of time and resources. This could upset the court, and you will probably lose. The jury can, without being bound by the evidence still convict you.
The Court Room Traffic Lingo...
Best Evidence
The Best Evidence Rule states that if an original (document) is available, it must be used. If the original does not exist, a photocopy may be used, provided that there is certification that the photocopy is a true copy of the original.
*Note*: If someone tries to introduce a photocopy, ask for the
original and object to a photocopy.
Case Law and Calibration
In every state there is case law regarding radar and the use of pace cars. In every situation, the ruling is that whatever means are used to determine your speed, the device must be accurate and functioning correctly. Calibration is recognized as being essential to proving that the measuring device is accurate.
*Note*: If the calibration of a device is not challenged, it is presumed to be accurate and functioning properly. Calibration must be performed within a reasonable period of the time of an arrest. A calibrated unit if damaged or altered is no longer considered calibrated unless it is recalibrated and found to be functioning correctly. If a device is used to calibrate another device, that device itself must have been calibrated within a reasonable period of time prior to use of calibration. Most courts agree that six months is a reasonable period of time.
Reasonable Time Regarding the Radar
The unit must be tested within a reasonable time before your arrest. That time is no more than the day of the arrest. To show that the device was functioning properly during the arrest, the unit should then be checked again immediately after the arrest.
Reasonable Time Regarding the Testing Device
This is generally accepted as no more than six months. The same applies for the speedometers.
Radar Log
The radar equipment must be accompanied with a log showing repairs and when it was last tested, who performed the test, and what malfunctions, if any, the unit has had in the past. There is also an arrest log that the officer must keep. This log shows the time of your arrest and the time when he tested the radar gun. He has an obligation to present the log if it is material
to the evidence, provided you ask for it.
Maintenance Log
A maintenance log must be kept for the vehicle in the event of being paced. As for it, and ask for the documentation on the speedometer certification.
Paperwork Verification
The police have to do the paperwork. If the prosecution produces certification or related paperwork be sure they match up. If they produce a certification on the tuning forks for a certain radar unit, make them show (by serial number) that this particular tuning fork was used on the specific radar unit to which it belongs, and that the specific radar unit was installed in the
specific car the day it was used to determine your speed. This has to be shown by log book entries; the officer’s word is not good enough unless you accept it. In nearly all cases, the officer does not know the serial number of the unit installed in the car he was assigned that day. There is no time to spend days researching maintenance records to make a paper trail, the trial is
today.
*Note*: The prosecution has already rested its case; it cannot ask for an extension unless you let them. If they ask for an extension, object! The judge will turn them down. If you do not object, the judge may grant the request.
Radar
We all have heard the stories of radar units clocking trees at over 50 MPH and stop signs at over 150 MPH. All courts have taken judicial action that radar readings are admissible provided the following chain of four items remains unbroken:
1. The unit was used properly by a trained and qualified operator.
2. The radar unit is properly maintained.
3. The radar unit was properly tested.
4. The calibration device used to test the radar unit was in proper operating order and was tested accurate within a reasonable period of time, usually 6 months.
Judicial Notice
Judicial notice is the court accepting something as fact which does not have to be proven again. A judicially noted fact is not subject to dispute because it is either known and accepted as true by the court, or it can be accurately tested by an authority in the appropriate field. Courts have taken judicial notice that radar and speedometers are accurate measuring devices provided they are calibrated and used correctly.
Accept it: radar works; officers know how to use it, and the court will accept their testimony unless you find fault with any one of the above four admissible evidence items. Finding fault with any one of the items breaks the chain of evidence. Break one link and the court can no longer assume to a legal degree of certainty that the readings are correct and accurate. This leaves the prosecution without credible evidence for their case.
The Best Evidence Rule states that if an original (document) is available, it must be used. If the original does not exist, a photocopy may be used, provided that there is certification that the photocopy is a true copy of the original.
*Note*: If someone tries to introduce a photocopy, ask for the
original and object to a photocopy.
Case Law and Calibration
In every state there is case law regarding radar and the use of pace cars. In every situation, the ruling is that whatever means are used to determine your speed, the device must be accurate and functioning correctly. Calibration is recognized as being essential to proving that the measuring device is accurate.
*Note*: If the calibration of a device is not challenged, it is presumed to be accurate and functioning properly. Calibration must be performed within a reasonable period of the time of an arrest. A calibrated unit if damaged or altered is no longer considered calibrated unless it is recalibrated and found to be functioning correctly. If a device is used to calibrate another device, that device itself must have been calibrated within a reasonable period of time prior to use of calibration. Most courts agree that six months is a reasonable period of time.
Reasonable Time Regarding the Radar
The unit must be tested within a reasonable time before your arrest. That time is no more than the day of the arrest. To show that the device was functioning properly during the arrest, the unit should then be checked again immediately after the arrest.
Reasonable Time Regarding the Testing Device
This is generally accepted as no more than six months. The same applies for the speedometers.
Radar Log
The radar equipment must be accompanied with a log showing repairs and when it was last tested, who performed the test, and what malfunctions, if any, the unit has had in the past. There is also an arrest log that the officer must keep. This log shows the time of your arrest and the time when he tested the radar gun. He has an obligation to present the log if it is material
to the evidence, provided you ask for it.
Maintenance Log
A maintenance log must be kept for the vehicle in the event of being paced. As for it, and ask for the documentation on the speedometer certification.
Paperwork Verification
The police have to do the paperwork. If the prosecution produces certification or related paperwork be sure they match up. If they produce a certification on the tuning forks for a certain radar unit, make them show (by serial number) that this particular tuning fork was used on the specific radar unit to which it belongs, and that the specific radar unit was installed in the
specific car the day it was used to determine your speed. This has to be shown by log book entries; the officer’s word is not good enough unless you accept it. In nearly all cases, the officer does not know the serial number of the unit installed in the car he was assigned that day. There is no time to spend days researching maintenance records to make a paper trail, the trial is
today.
*Note*: The prosecution has already rested its case; it cannot ask for an extension unless you let them. If they ask for an extension, object! The judge will turn them down. If you do not object, the judge may grant the request.
Radar
We all have heard the stories of radar units clocking trees at over 50 MPH and stop signs at over 150 MPH. All courts have taken judicial action that radar readings are admissible provided the following chain of four items remains unbroken:
1. The unit was used properly by a trained and qualified operator.
2. The radar unit is properly maintained.
3. The radar unit was properly tested.
4. The calibration device used to test the radar unit was in proper operating order and was tested accurate within a reasonable period of time, usually 6 months.
Judicial Notice
Judicial notice is the court accepting something as fact which does not have to be proven again. A judicially noted fact is not subject to dispute because it is either known and accepted as true by the court, or it can be accurately tested by an authority in the appropriate field. Courts have taken judicial notice that radar and speedometers are accurate measuring devices provided they are calibrated and used correctly.
Accept it: radar works; officers know how to use it, and the court will accept their testimony unless you find fault with any one of the above four admissible evidence items. Finding fault with any one of the items breaks the chain of evidence. Break one link and the court can no longer assume to a legal degree of certainty that the readings are correct and accurate. This leaves the prosecution without credible evidence for their case.
A Test Run...
You were driving down the highway and an officer of the law behind you, lights blinking. He tells you he has been following your for ¼ of a mile. This means the cop paced you with his car, using his speedometer. He has given testimony. You ask him to present documentation from a recognized speedometer shop concerning the last time the speedometer in his car he used that day was calibrated.
Outcome
The officer can not produce the documentation. Few police organizations calibrate their speedometers. If they do, the chances are that the officer does not have the documents. And No they can not go get them to try you some other day. The trial is now and the prosecution was unprepared. The prosecution rested its case when they handed the witness over to you. The evidence presented now has a fatal flaw. You must immediately ask for the case to be dismissed.
*Note*: You did not prove Innocent Until Proven Guilty anything; you simply asked for documentation that the prosecution was unable to present. You simply took away their assertion that the speedometer was accurate to a legal degree of certainty. You cast doubt concerning the accuracy of the speedometer and broke their chain of evidence. That is ALL.
The judge knows the speedometer is close to being accurate, but close does not count here. He knows you were going fast. However, the charge is not “going fast,” but going an exact speed based on a device that cannot be proven to be accurate to a legal degree of certainty! Fines are based on exact figures. If you say, “I was not going that fast,” you open the door to a change in the charge. The court can now say that by your own words, you were going over the speed limit. The court can now find you guilty of speeding and impose a fine without a definite speed. The charge can be changed to an arbitrary figure.
*Note*: When you plead not guilty, you are pleading not guilty to the charge of going 15 MPH over the speed limit.
Outcome
The officer can not produce the documentation. Few police organizations calibrate their speedometers. If they do, the chances are that the officer does not have the documents. And No they can not go get them to try you some other day. The trial is now and the prosecution was unprepared. The prosecution rested its case when they handed the witness over to you. The evidence presented now has a fatal flaw. You must immediately ask for the case to be dismissed.
*Note*: You did not prove Innocent Until Proven Guilty anything; you simply asked for documentation that the prosecution was unable to present. You simply took away their assertion that the speedometer was accurate to a legal degree of certainty. You cast doubt concerning the accuracy of the speedometer and broke their chain of evidence. That is ALL.
The judge knows the speedometer is close to being accurate, but close does not count here. He knows you were going fast. However, the charge is not “going fast,” but going an exact speed based on a device that cannot be proven to be accurate to a legal degree of certainty! Fines are based on exact figures. If you say, “I was not going that fast,” you open the door to a change in the charge. The court can now say that by your own words, you were going over the speed limit. The court can now find you guilty of speeding and impose a fine without a definite speed. The charge can be changed to an arbitrary figure.
*Note*: When you plead not guilty, you are pleading not guilty to the charge of going 15 MPH over the speed limit.
Remember this...
Legal Basics
The police officer is also an officer of the court. The judge, prosecutor, and officer know each other and work with each other very closely. Be polite and friendly to the judge and the prosecutor. They have a job to do and it isn’t making sure justice prevails. It is to convict you and impose a fine.
Do not go to court like a slob. Stick to the point, do not get sidetracked. You are charged with a specific speed, for example 15 MPH over the speed limit. It is the job of the prosecutor to give evidence that you were in fact going 15 MPH over that speed, exactly 15 MPH. Going fast is not what you are charged with.
Do not admit to anything.....anything!!! Or the charge against you can be changed. You can and will be found guilty if it came from your own mouth! If the judge, magistrate or prosecutor asks you anything about the ticket or circumstances, politely reply that you do not want to testify against yourself. Do not think or pretend you are on TV and plead the 5th; just be polite and firm.
Innocent until proven guilty is legal fiction. You are presumed guilty. The only thing that stands between you and a conviction is the evidence.
Challenge the evidence. Proof required in a case must be beyond a reasonable doubt, not beyond all doubt. The operative word here is reasonable. Unless you challenge the evidence, it will be presumed to be reasonable.
*Note*: DO NOT try to prove that you are innocent. The only reason for the trial is to hear the evidence against you and convict you.
11
The police officer is also an officer of the court. The judge, prosecutor, and officer know each other and work with each other very closely. Be polite and friendly to the judge and the prosecutor. They have a job to do and it isn’t making sure justice prevails. It is to convict you and impose a fine.
Do not go to court like a slob. Stick to the point, do not get sidetracked. You are charged with a specific speed, for example 15 MPH over the speed limit. It is the job of the prosecutor to give evidence that you were in fact going 15 MPH over that speed, exactly 15 MPH. Going fast is not what you are charged with.
Do not admit to anything.....anything!!! Or the charge against you can be changed. You can and will be found guilty if it came from your own mouth! If the judge, magistrate or prosecutor asks you anything about the ticket or circumstances, politely reply that you do not want to testify against yourself. Do not think or pretend you are on TV and plead the 5th; just be polite and firm.
Innocent until proven guilty is legal fiction. You are presumed guilty. The only thing that stands between you and a conviction is the evidence.
Challenge the evidence. Proof required in a case must be beyond a reasonable doubt, not beyond all doubt. The operative word here is reasonable. Unless you challenge the evidence, it will be presumed to be reasonable.
*Note*: DO NOT try to prove that you are innocent. The only reason for the trial is to hear the evidence against you and convict you.
11
Defense...
By showing up in court, you have increased chances of the ticket dismissed. There are thousands of people daily that roll over and pay up. Appearing in court is your first line of defense because the officer that gave you the ticket may not show up. Make sure to read your ticket carefully to see if there is something that you must do to ensure the officer shows up. If they can’t talk, you will walk.
Change the Court Date
A double-edged sword. It may be okay, but consider this. If the date is moved, you have to show up. If the officer doesn’t show up on the new date, prosecution will likely ask for a new date, and it will probably be granted because you have already had it moved once. Now there is another
new date, and you have to be there too.
*Note*:
Not showing up for a trial date is a more serious offense and could result in a warrant being issued for your arrest. DON'T GO THERE!
BUT, there is a high probability that the officer will not show up and you get the case dismissed. Consider your options carefully and request a postponement if your circumstances allow it. The Clerk of Courts can provide you with the exact procedures to follow to get a new trial date.
Change the Court Date
A double-edged sword. It may be okay, but consider this. If the date is moved, you have to show up. If the officer doesn’t show up on the new date, prosecution will likely ask for a new date, and it will probably be granted because you have already had it moved once. Now there is another
new date, and you have to be there too.
*Note*:
Not showing up for a trial date is a more serious offense and could result in a warrant being issued for your arrest. DON'T GO THERE!
BUT, there is a high probability that the officer will not show up and you get the case dismissed. Consider your options carefully and request a postponement if your circumstances allow it. The Clerk of Courts can provide you with the exact procedures to follow to get a new trial date.
Please Keep In Mind...
Make sure you pay attention to these directions and follow them in exact detail:
1. If you send anything by U.S. Mail, REGISTERED, REGISTERED, REGISTERED. With a return receipt required, and keep a copy.
*Note*: Make sure you have copies of this information when you appear before the judge.
2. If the ticket tells you what you must do if you want the arresting officer to be there, DO IT, DO IT, DO IT!
*Note*: You WANT the arresting officer in court. Without the arresting officer, you will cross-examine except for the ticket.
3. If your ticket says that you may subpoena the arresting officer, SUBPOENA, SUBPOENA, SUBPOENA!
*Note*: This can be used as a sleight-ofhand in some instances, and if you do not issue a subpoena, the arresting officer will not show up and the judge will tell you that you should have. Your case won't be dismissed, and the judge will use the officer’s written deposition as evidence. Make sure you call the Clerk of Courts to find out how to subpoena the officer. It is different in each state.
4. If the ticket states that you must do something concerning discovery, reply with these exact words only. “The Defendant requests the Innocent Until Proven Guilty prosecution to present in court competent foundation to any evidence it intends to introduce.”
5. Unless the ticket specifically states the method or you are aware of what was used, you need to go to court prepared with defenses on all three: the radar, the speedometer, and the lidar laser.
1. If you send anything by U.S. Mail, REGISTERED, REGISTERED, REGISTERED. With a return receipt required, and keep a copy.
*Note*: Make sure you have copies of this information when you appear before the judge.
2. If the ticket tells you what you must do if you want the arresting officer to be there, DO IT, DO IT, DO IT!
*Note*: You WANT the arresting officer in court. Without the arresting officer, you will cross-examine except for the ticket.
3. If your ticket says that you may subpoena the arresting officer, SUBPOENA, SUBPOENA, SUBPOENA!
*Note*: This can be used as a sleight-ofhand in some instances, and if you do not issue a subpoena, the arresting officer will not show up and the judge will tell you that you should have. Your case won't be dismissed, and the judge will use the officer’s written deposition as evidence. Make sure you call the Clerk of Courts to find out how to subpoena the officer. It is different in each state.
4. If the ticket states that you must do something concerning discovery, reply with these exact words only. “The Defendant requests the Innocent Until Proven Guilty prosecution to present in court competent foundation to any evidence it intends to introduce.”
5. Unless the ticket specifically states the method or you are aware of what was used, you need to go to court prepared with defenses on all three: the radar, the speedometer, and the lidar laser.
Subscribe to:
Posts (Atom)
