BASIC LASER DEFENSE
DON'T FORGET TO BRING A ONE FOOT RULER WITH YOU TO COURT
When your name is called hand over the following case laws plus appropriate case law from your sate.
If your State has appropriate case law: "Your honor, here is some appropriate case law for your consideration along with relevant case law from sister States." Hand him BOECKER GERDES LANGFORD PERLMAN and TOMANELLI plus your State case Laws.
If your State has no appropriate case law: "Your Honor, here is some appropriate case law from sister States. Unfortunately our State has no pertinent case law and as such the wisdom of High court Judges from Sister States should be considered." Hand him BOECKER GERDES LANGFORD PERLMAN and TOMANELLI
(remember you should have three copies. One for the Judge, another for the prosecutor and one for yourself)
You have handed the Judge and prosecutor the main case laws plus any pertinent State case Law. The officer has been called and starts to testify. Wait until the officer starts to testify that he was using a laser unit.
Now Object: "Your Honor, Although there is ample Judicial Notice as to Radar, there exists no judicial notice in this jurisdiction. There exists no documentation of a Frye or Daubert hearing in this jurisdiction that readings from any laser gun type of device is accurate to a legal degree of certainty and admissible as scientiffic evidence to a speeding violation. Unless the prosecution intends to bring in expert testimony from recognized experts in the field I object to any testimony concerning readings from a laser speed measuring device." Read: JUDICIAL NOTICE
NOT USABLE IN GEORGIA - Georgia has Statewide Judicial Notice: For Georgia see GEORGIA SPECIAL
Questions that may be asked of you:
How do you know there is no Judicial Notice? "I have done a thorough search on CASE CLERK.com, a online legal research library similar to WESTLAW and found none. Unless the prosecution can come up with either case law pertinent to this Jurisdiction or documentation where a hearing as to the admissibility of readings from such a device has been held and Judicial Notice taken, I object to any testimony from such a device."
Can you prove that no Judicial Notice exists? "With all due respect your honor, this is the prosecutions evidence. If the prosecution wishes to enter such evidence the Burdon is upon the prosecution to provide such notice if challenged. Furthermore it is not possible to prove the nonexistence of something that does not exist. If Judicial Notice exists then let the prosecution bring it forward."
You should have asked for it in discovery: "With all due respect your honor, seeking the existence of Judicial Notice where none exists is not within the scope of discovery. This is the prosecutions evidence concerning a scientific device and if they wish to enter it they are required to provide Judicial Notice if they wish to enter it without Expert Testimony."
The Judge may or may not dismiss the case here and now or he may say something to the effect I take Judicial Notice and allow the trial to continue.
If he says: I Take Judicial Notice: "I object. Unless Your Honor is himself a technical and scientific expert in the field of Laser, Laser optics and Laser speed measuring devices. If not I object to taking Judicial notice where no expert testimony is presented and no competent Judicial Notice exists."
If The Judge Declares that the Trial will Continue
Allow the Officer to testify. Pay special attention to the method by which he tested the laser gun and if he again tested it at the end of his shift.
The items that the prosecution must prove:
The speed limit where the offence took place
That the Officer was trained in the use of the device
The device was used as per manufactures requirements
That the officer tested the unit before the arrest and after the arrest
That there was no outside interference that could have caused a error at the location of use
That your car was the one that the laser indicated was causing the speed reading
Allow the officer to give his testimony and take notes as to anything he omitted from the items he must prove. The following is the another shot across the bow. You are asking for a directed verdict. A directed verdict can only be asked for after the prosecution has finished it's case in chief. The verdict can only be not guilty. The Judges other option is to deny the motion and the trial will continue. You have a small chance that the Judge will grant the motion and the trial ends. Always ask for the directed verdict at this time if any of the above was not properly addressed. Remember you can ask, and keep asking for a directed verdict for every item listed below. You may ask several times provided each request is based on a different set of facts omitted in testimony. A Directed Verdict is seldom granted when there is no Jury. It is designed more for a Jury trial then a trial by a Judge. Don't be alarmed if the Judge tells you this. With each motion you are shaking the foundation of the prosecutions case and drawing attention to the weakness of the foundation of the prosecutions proof.
testify as to the speed limit: Motion for dismissal: "Your honor, the prosecution has rested. The officer did not testify as to the speed limit in the location where the alleged infraction took place. I move for a directed verdict as the prosecution has failed to prove what the speed limit was. (a directed verdict is asked for after the prosecution rests. In a speeding trial the prosecution would rest after the officers testimony [in reality the prosecution would rest after all cross examination of the officer]. Once it has rested it may no longer introduce new evidence except to contradict items that may be brought up in cross examination. If the officer failed to mention the speed limit in the location where the infraction took place and the prosecution has rested, the Judge has no choice but to dismiss the case - But only if you ask for it.
If the Officer did not testify to having had training: "Your honor, the prosecution has rested. The officer did not testify that he had training on the device used. I move for a directed verdict as the officer can not testify as to the accuracy of a unit to which he has had no training."
The officer made no mention that the device was used in accordance with the manufacturers approved manual: "Your honor, the prosecution has rested. The officer did not testify the he used the device in accordance with the approved manufacturers manual. I move for a directed verdict as there was no testimony to the the device being used in accordance with the manufacturers approved manual. As such the officer can not testify as to the accuracy of the readings"
The Officer did not test the unit after use: "Your honor, the prosecution has rested. The officer did not testify that he tested the unit after use. A clear theory in law is that if the device tested as being accurate before the readings were taken and tested accurate after the readings were take that the device with a legal degree of certainty was accurate during the readings. With not test of the device after the readings we have no legal certainty that the readings from the device were accurate to a legal degree of certainty. I move for a directed verdict as the prosecution has failed to prove to a legal degree of certainty that the device used was accurate when the readings were taken."
The Officer did not testify that he checked for outside interference at the location of use: "Your honor, the prosecution has rested. The officer did not testify that he checked for possible external interference at the location of use. As such we have no knowledge that the device, although previously tested as to its functioning was tested at the location of use for interference. I move for a directed verdict as the prosecution has failed to prove to a legal degree of certainty that the device used was without external interference at the location used.
The officer did not testify that it was your car and your car only that caused the reading on his device: "Your honor, the prosecution has rested. The officer did not testify that that the readings on his device could only have come from my car. This leaves open the possibility that the readings could have been from another vehicle or outside interference. I move for a directed verdict as the prosecution has failed to prove to a legal degree of certainty that my car and my car only could have caused the readings on the device used."
Chances are the Judge denied all your motions. That is ok. You wanted to bring to the courts attention the weakness in the prosecutions case even before you start cross examining. By now you should have a concerned look on the officer who knows that he is in for a rough time.
Testing with Pace Car and if he didn't test the unit again at the end of his shift
If he says that after he tested the unit for it's distance measuring ability that he had another officer drive by at various speeds and that the unit gave the correct speed, OBJECT: "Hearsay, unless the officer that was in the car is here to testify as to the speed he witnessed I object to this testimony." (save this tidbit for cross examination). If by the remotest of chances the other officer is there, question him similar to the questions in the PACE DEFENSE.
If he did not testify to testing the Laser Gun again at the end of his shift: "Your honor, the prosecution has rested. The officer did not testify that he tested the unit after use. A clear theory in law is that if the device tested as being accurate before the readings were taken and tested accurate after the readings were take that the device with a legal degree of certainty was accurate during the readings. With no test of the device after the readings we have no legal certainty that the readings from the device was accurate to a legal degree of certainty. I move for a directed verdict as the prosecution has failed to prove to a legal degree of certainty that the device used was accurate when the readings were taken."
Remember you can ask more questions on this in cross examination if the case gets that far.
The Prosecution or Judge in a trial where there is no prosecutor my make objection or try to ask the question that was missed. If the prosecutor or Judge starts to ask the missed question immediately object:
Prosecutor objects or asks a question: " Your Honor, I object, the prosecutor may not open the prosecutions case in chef again even if a mistake was made and required testimony was not solicited. The prosecution has rested and must sit with the evidence it presented."
Judge starts to ask questions: "Your Honor, I object. First the people went ahead without a prosecutor. Second I object to you acting as prosecutor."
If the prosecutor makes an objection: "Your Honor, the people have rested. The prosecutor has no standing in making an objection to a motion requesting a directed judgment."
The Judge makes an objection: He won't but if he does. "Your honor are you now taking the roll of prosecutor and objecting for the people on a motion you have been asked to rule upon? If so, I object and motion that you recuse yourself because you have taken a biased position acting on behalf of the prosecution."
If the Judge does not rule in your favor:
Now it is your turn to cross examine the witness. You should have read CROSS EXAMINATION
1. Ask him any questions you have regarding any of his testimony that you might want clarification to: Since the list here could be endless and totally dependent on your specific trial I make no attempt to give suggestions.
2. If you are combining your defense with the Tipmra advanced CFR strategy then ask: (note: if you did not Subpoena the material ask it anyway but leave out the part about the subpoena)
"Officer, please present to the court the traffic engineering speed survey as subpoenaed and required by 23 CFR 630 and MUTCD Title 23 V.S.A.. showing that the speed survey is less then five years old and that the speed posted was in compliance. (Colorado hand in COLORADO For California hand in appropriate case laws and Statutes from California Case Law section) Bring CFR_CASE1 CFR_CASE2 CFR_THE_RULES
COPY AND PRESENT ALSO Definition -CLICK HERE
Now hand a copy of CFR_case1 and CFR_case2 to both the Judge and Prosecutor. "Your Honor, without this Engineering Survey any speed posted is arbitrary and unenforceable. The officer issued the citation Under the color of federal law by Statute irregardless if the ordinance is Local, or State. Federal Law takes precedence and no community which takes or has taken Federal Highway funds may enforce a speeding violation unless it is in compliance with Federal Law, in specific 23 CFR 630 and MUTCD Title 23. These two case laws from Michigan and Nebraska clarify this with adequate reference to the Federal law as it applies and other States that have examined and made determinations as to the law." (note: in California this is mandatory by State Statute as well - See appropriate California Case laws, and hand these to the Judge and prosecutor as well)
If he does not have the Traffic Engineering Survey: "Your honor, Federal Law which preempts State Local and Municipal Law on the nations highways and roads specifically forbids enforcement Under the color of federal law any speed that is arbitrary. Any posted speed not accompanied by a Traffic Engineering Survey that is less then five years old is by definition and Federal Law an arbitrary speed. Defendant motions for dismissal."
If the Judge or Prosecutor says something to the effect that this is not a Federal Road or that the officer is enforcing local laws and not federal laws or anything to that effect then say: "Your Honor, when this State took one cent of Federal Highway funds it agreed in writing to give sovereignty of the roads to the Federal Government. Every municipality that has taken one cent of State money by agreement in return for this money has subrogated itself to the Federal Government. The only legal authority for speed enforcement is under the color of Federal Law even in the enforcement of local speed ordinances. The prosecution has two choices under 23 CFR and MUTCD Title 23; Produce the engineering survey or produce documentation that this State, Township or Municipality has never received one cent of State or Federal Highway or road funds."
You will probably hear objections and the mashing of teeth as the prosecutor, or Judge and the officer have a near heart attack. Here are the suggested ways of handling the objections. Handling OBJECTIONS TO CFR
The purpose of the placement of this defense here is to throw the prosecution a curveball, possibly end the case right here and at worst you have seriously disrupted the prosecutions plan for an easy victory.
Further Cross Examination
Most likely the officer will have testified that he tested the unit by standing on a designated spot and checked the distance reading from a premature object. He may also testify that he had another officer in a car drive by at given speeds.
If he tested the unit by having it mounted on a tripod or some other fixed fixture rather then holding it, skip the DISTANCE MEASURING CHALLENGE.
DISTANCE MEASURING CHALLENGE: If the officer testified to standing and holding the unit for the distance test then do the following. If the test was done using a tripod or other FIXED DEVICE - Just skip this and move on. NOTE: In over 90% of all cases you will find that the officer did this test standing up, holding the gun and standing over a marked point. If you have not beaten the case this far, this will cause serious gnashing of teeth and consternation. The officer may even lose his constipated demur.
"Officer, what is the allowed tolerance in this test, how many feet.? He will say, One foot.
" Officer, at the place you do the test are there show marks on the ground indicating where you are to place your feet or is there just an X or a mark of some kind?"
"What method do you you employ to make certain that your feet are in the exact same position each and every time you do that test?"
" Officer, I want you to stand up with one foot in front of the other and lean forward and back as I place this one foot ruler by your shoulder". When doing this his lean forward and back will be more then the one foot ruler."
" The court will not that the officers shoulders swayed moved more then a foot when asked to lean forward and back."
*** IMPORTANT *** now you ask a leading question: " Officer, isn't it a fact that the manual for the device you used specifically states that the distance test must be done from a fixed position with the unit on either a tripod or some device fixing it to the exact same measured position each and every time?" If he says Yes and he did not do it from a fixed mount ask for dismissal as the test is invalid and in contradiction to the operators manual. If he says NO then do the following.
Pull out your copy of the ProLaser III operators manual. "Your Honor, this is a copy of the ProLaser III operators manual. The ProLaser III is the most commonly used and the testing on all lasers produced is essentially the same and exactly the same in the requirement for a fixed mount for testing. I would like the officer to read page 24 Differential Distance Test" Let the officer read it. Vola! you have just won the case and made an ass out of the officer.
Print out ProLaser III OM Note: This is a PDF file that will open in a new window. Use the print option from the FILE menu.
Optional Questions: You can also ask the officer questions relating to the ACCURACY TEST as outlined on page 23 of the same manual.
If the Officer says that this is not the gun they used or that this is not the Manuel he used or if the Judge won't let him read from this manual then ask: "Officer when was the last time you read the manual for the gun you used from cover to cover?"
If he says that he has not read the manual cover to cover: (the important words here are COVER TO COVER) "Officer, if you have not read the manual cover to cover you might not know that the test must be done from a fixed position on a tripod or similar device. Isn't that true?" Remember you may only ask one question at a time, compound questions are not allowed. Now ask: "Officer, since you have not read the manual from cover to cover, you don't know what procedures you my have missed and therefore did not employ to get an accurate speed reading, Isn't that true?"
If he says that he has read the manual from cover to cover then ask: " Officer then please tell the court why you chose to not follow the manuals specifications as to testing, in specific why did you do the test standing up, holding the unit where error is possible?
Don't forget to motion for dismissal as you see fit on the distance measuring test as you see fit and where you find the best opportunity to do so. By all rights this case should have ended by now. However there always is that slim chance that you have to go a bit further. Fear not. You still have unfired ammunition you belt.
Testing and Certification:
"Officer, when was the last time this unit was tested and certified as being accurate by a facility approved to do such tests?" (this is the gun itself)
If he says the unit is less then six months old and he presents the certificate that came with the unit: use the VERIFICATION DEFENSE
If he says anything other then six months or has not presented a certificate as to the last rest: "Officer please present documentation that the unit has been tested for accuracy and proper function by a facility approved and certified for such tests." If he has no such documentation then: "Your honor, the evidence from the laser speed measuring device is incompetent as the device has not been tested and certified by a facility approved and certified to do so within a reasonable period of time. Every manufacturer of a laser speed measuring device mandates that the device be periodically recertified at an approved facility as accurate. I have presented ample case law stating that such a test is necessary and now motion for dismissal because this evidence is legally incompetent because there is no verification or assurance from either the manufacturer or a certified testing facility attesting to a legal degree of certainty that this unit was accurate."
You will probably hear objections and the mashing of teeth as the prosecutor, or Judge and the officer have a near heart attack. Here are the suggested ways of handling the objections. OBJECTIONS
If he did not do a live test by checking it against a patrol car driving by:
Remember if he did a live test, both officers must testify
"Officer, you did not check to see if this unit actually work correctly by doing a live test with a patrol car, Didn't you?" He will say something to the effect that it isn't necessary.
"Not Necessary! You tested it against a stationary target, one that does not move, that isn't the same as a moving vehicle now is it?"
"Officer, isn't speed distance divided by time?" he should say yes, if not question him as to what school grade he completed.
"Officer, you have checked the distance measuring ability, how did you check the devices ability to measure time correctly?" Whatever he says is ok
"Officer, unless you did a live test, you have no assurance that all the components of the unit work together accurately, Don't you?"
If at this point you have failed to have the case dismissed it is time to rest your case and go on to closing arguments. " Your honor, the defense rests and is prepared for closing arguments" See CLOSING ARGUMENTS