A lesson in document evidence
Although it is covered in various places on the main site and the tipmra and updates itself, a few people still have trouble when faced with a belligerent magistrate saying the officer’s word is good enough.
You should say to the Judge: "This calls for a document where the best evidence rule applies. The officers word is hearsay at best and does not rise to the requirements of the best evidence rule. Unless the officer has direct personal knowledge of the contents of the document and the document has been destroyed his testimony is insufficient and I object."
Your first question to the officer should be. “Officer do you have direct knowledge that the document you are referring to is in fact the document requested.”
Your follow up questions should be something like this. “Officer what is the date of the document”. He will say he does not know. Your next question is. “ Officer if you don’t know the date then you don’t know if that document is six months old or six years, do you?” If he replies with “I know it isn’t more then six moths old” (or something like that) then ask. “Officer, other then hope and faith, what are you basing that statement on?”
You can go on with many more questions similar to the above. The thrust is that you are asking what specific direct personal knowledge he has verifying the document and its contents. The key words are DIRECT PERSONAL KNOWLEDGE.
This line of questioning can be used on any instance where the Judge says, I will take the officers word for it when referring to the existence of some material fact, document or event.
Officer, how did you identify this document that I am holding in my hand as certifying the tuning forks used on the date of my arrest?” He can only say –by the serial numbers- . Then ask “What are those serial numbers?” he won’t be able to recite them because he never expected that question and simply identified the document because the prosecutor handed it to him for identification. When he answers that he does not know the serial numbers you just caught him lying on the stand and you can say. “Your honor the witness swore under oath that he identified this document by the serial numbers. However under examination he admits that he does not know what the serial numbers are. I motion this document not be admitted into evidence and that the court take notice that the officer has given a false swearing.”
Officer, you testified that the speedometer was calibrated at the factory. Do you have personal direct knowledge of that fact, for example, where you there when the calibration was preformed?”
Officer since you did not test the radar gun again after my arrest how do you know it tested correctly the next time it was used on the next shift?” he may say officer Jones told him – object because that is hearsay evidence and not admissible. Unless he says that he personally witnessed the test or that the test was recorded on paper it is not admissible. If he says it was recorded on paper: Officer, please present that paper to the court.”
I hope you get the idea. It is not possible to cover every possibility for this line of questioning. This should give you ideas if and when a situation arises where the Judge says that he will take the officers word for something. This line of questioning can be used in other instances as you see fit.
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