Some basics you should know
When the prosecution has finished questioning their witness, the prosecution rests. You have the right to cross-examine the witness, but only as to the testimony the witness gave. That is, you cannot ask questions about something not covered in the direct testimony. The Prosecutor then has the right to question the witness again after you are finished, but only as to items covered in either the examination or your cross examination. After the prosecutor is done with his re-direct, you can re-cross examine the witness. It seldom gets to this point.
Best evidence rule, basically if an original is available and it exists, it must be used. In the event 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. Remember this, if someone tries to introduce a photocopy. Ask for the original and object to a photocopy. A Lesson in Documentation Rules
Case Law. Applied law is based on case law. This is where someone takes a case all the way to the State, Provincial or Federal Supreme Court and a ruling is made. In most States and Provinces there is case law regarding radar and the use of pace cars. In every situation the ruling is that whatever means or device is used to determine your speed, the device must be accurate and functioning correctly. Calibration is recognized as being essential to proving that a measuring device is accurate. If the calibration of a device is not challenged, it is presumed to be accurate and functioning properly.
Challenging something: If you don't object to something or challenge something the court assumes that you agree with it. You can challenge something by objecting to it or asking questions in cross examination.
Calibration must be within a reasonable period of time of an arrest.
A calibrated unit if damaged or altered is no longer considered calibrated unless it is re-calibrated 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 for calibration. (in this event most courts agree that six months is a reasonable period of time, some a year but none consider anything over one year as acceptable )
Daily checks are required for radar, laser, vascar and any similar devices. The unit must be tested before your arrest within a reasonable time. That time is no more then the day of the arrest itself. To show that the device was functioning properly during the arrest the unit should be checked again immediately after the arrest. ( The legal theory is that if it check out before use and after use it worked correctly during use. If it is not checked after use there is no assurance that it worked during use.)
Calibration Log - Device Log: The radar gun, Laser Gun or other device should have a log, showing repairs, when it was last tested, who tested it and what malfunctions the unit has had in the past. (it is always good to ask for the log in court. Don't be surprised if the officer did not bring it.)
Arrest or Officer activity Log: This log should show the time of your arrest and the time when he tested the radar unit or other unit used. He has an obligation to present the log if it is material to the evidence, provided you ask for it.
Maintenance log: Every Police vehicle should have a Maintenance Log. In the event of being paced (where the officer follows you and notes your speed on his speedometer) Ask for it, and ask for the documentation on the speedometer certification. (damage history or different tires sizes can affect the speed readings)
Match up the paperwork: If the prosecution produces certification or related paperwork it may not match up. That is if they produce a certification on the tuning forks for a certain radar unit. Make them show that by serial number (yes they all have serial numbers) that this particular tuning fork was used on the specific radar unit to which it belongs and that specific radar unit was installed in the specific car that day where it was used to determine your speed. They must show this by logbook entries or some other paperwork, the officer’s word is not good enough unless you accept it. see - A Lesson in Documentation Rules (Believe me, the officer does not have a clue as to the serial number of the radar unit installed in the car he was assigned to that day). The trial is now, there is no time to spend days researching maintenance records to make a decent paper trail. remember the prosecution has already rested it’s case, it can not ask for an extenuation unless you let them. (If the prosecutor asks for an extenuation, object, the judge will turn him down. If you do not object the judge may grant the request). Be prepared, The Judge may just say "I will take the officers word for it". If you have not read it by now - do so. A Lesson in Documentation Rules
The Basics that the prosecution must prove:
Used properly by a trained and qualified operator, properly set up and accordance with the operators manual
The unit or device is properly maintained
The unit or device was properly tested
The car identified as the one responsible for the reading was your car
The location where the allegation took place had a certain speed limit which you exceed by a given amount
That the test device in the case of radar to test the radar be in proper operating order and itself having been tested within a reasonable period of time. (this refers to the tuning forks used to test a radar gun, They also have to have been tested within a reasonable period)
If asked by you they must produce a Speed Engineering Survey for the stretch of road you were on showing that the speed limit was reasonable. This is the CFR Defense. (Some Judges just ignore it and tell you to move on. Others will dismiss the case. You never know and this defense is very powerful and should be used with every one of the basic defenses) (it is expanded in ever one of the defenses, you don't have to rush to learn about it right now.)
Previous Page Next Page