Pre-emptive strike

[Leviticus]

I just returned from observing another traffic court session.
As was the case in my previous court observations, all the officers testified that they have an independent recollection of events and that their notes are to be used simply to refresh their memory.

Before using the notes, the prosecution asks the defense if they have any objections to the notes being used.
It occurred to me today that this is a very good opportunity to stop certain testimony that otherwise would have leaked out.

I _was going to object to a statement by the officer that he’s recorded in his notes, that has nothing to do with the charge, but would bias the judge in his favor once it was read.
My objection would most likely have been sustained, as the statement clearly does not have anything to do with the charge at hand. But once the officer had read it, the judge would have knowledge of it, even though he/she would likely not allow it as evidence.

Now I see I may have a better strategy and this is where I need your candid advice.
When the prosecution asks me if I have any objections to the officer using his notes to refresh his memory, can I then confer with the prosecution (or even out loud to the court) and state that so long as the officer does not introduce any statements from his notes that do not directly have a bearing on the charge, I have no objections.

Will the prosecution/court allow this?
This seems like a good/fair way to keep out a statement that might otherwise prejudice the judge in his/her decision.
I suppose the officer can still introduce it and then quickly say he’s sorry, he forgot. Nothing could be done then right?

Judges, prosecutors, officers that reply; please be as honest as possible with this (not that you usually aren't). Thanks.

[seniorjudge]

Originally Posted by Leviticus

I just returned from observing another traffic court session.
As was the case in my previous court observations, all the officers testified that they have an independent recollection of events and that their notes are to be used simply to refresh their memory.

Before using the notes, the prosecution asks the defense if they have any objections to the notes being used.
It occurred to me today that this is a very good opportunity to stop certain testimony that otherwise would have leaked out.

I _was going to object to a statement by the officer that he’s recorded in his notes, that has nothing to do with the charge, but would bias the judge in his favor once it was read.
My objection would most likely have been sustained, as the statement clearly does not have anything to do with the charge at hand. But once the officer had read it, the judge would have knowledge of it, even though he/she would likely not allow it as evidence.

Now I see I may have a better strategy and this is where I need your candid advice.
When the prosecution asks me if I have any objections to the officer using his notes to refresh his memory, can I then confer with the prosecution (or even out loud to the court) and state that so long as the officer does not introduce any statements from his notes that do not directly have a bearing on the charge, I have no objections.

Will the prosecution/court allow this?
This seems like a good/fair way to keep out a statement that might otherwise prejudice the judge in his/her decision.
I suppose the officer can still introduce it and then quickly say he’s sorry, he forgot. Nothing could be done then right?

Judges, prosecutors, officers that reply; please be as honest as possible with this (not that you usually aren't). Thanks.

This is called a motion in limine...if you think the officer is going to talk about something he shouldn't, then make that motion.

Google the term for more info.

[CdwJava]

Notes made proximate to the time of the incident or a good tool to refresh one's recollection. I personally know of no case in my state where an officer has not been permitted to review his notes to refresh his memory of events. He is generally not allowed to READ from his notes, but he may review them.

Plus, your conditional objection to anything that might be in the notes is too broad to be valid. What you appear to be saying is that if the officer's own independent recollection is similar to what is in the notes, he should not be allowed to say it! That's silly.

The BEST traffic court notes I ever heard was one where a motorcycle cop I worked with was nearly hit by passing motorist. At trial he testified from complete memory. For some reason the defendant's attorney asked the officer if he would care to read from his notes - I presume he thought that the notes might contradict the officer's statement. The officer thanked the attorney and turned over the citation to read his only notation on the back:

"He almost killed me!"

It is also a good example of why Discovery is important even in traffic court cases.

- Carl

[seniorjudge]

Originally Posted by seniorjudge

This is called a motion in limine...if you think the officer is going to talk about something he shouldn't, then make that motion.

Google the term for more info.

But in a bench trial, be prepared for the judge to overrule you and say, "I can separate the wheat from the chaff" (or some other pithy proverb).

[Leviticus]

Originally Posted by seniorjudge

This is called a motion in limine...if you think the officer is going to talk about something he shouldn't, then make that motion.

Google the term for more info.

Thanks Senior, I will have a look at that motion.

[Leviticus]

Originally Posted by CdwJava

Notes made proximate to the time of the incident or a good tool to refresh one's recollection. I personally know of no case in my state where an officer has not been permitted to review his notes to refresh his memory of events. He is generally not allowed to READ from his notes, but he may review them.

Hi Carl. It appears you have mis-interpreted my post.
I don't have a problem with the officer reading from his notes.

Originally Posted by CdwJava

Plus, your conditional objection to anything that might be in the notes is too broad to be valid. What you appear to be saying is that if the officer's own independent recollection is similar to what is in the notes, he should not be allowed to say it! That's silly...

It is also a good example of why Discovery is important even in traffic court cases.

It's not broad at all. I have taken advantage of Discovery and know exactly what are in the officers notes. I know that one item on his notes list has got nothing whatsoever to do with the charge.
I simply would like the prosecution and officer to strike that item from his notes so the judge isn't prejudiced. Couldn't be more simple than that.

To give an example (not the same as in my case)
if the officer has noted that a rear light was not functioning properly, that has nothing whatsoever to do with a speeding charge.
It might have been an interesting observation at the time and he might have pursued it further, but he didn't.

[sukharev]

One way to handle it may be to let him say it, then object "Irrelevant!" and explain why. In your example, mechanical condition of the car is irrelevant to the speeding charge and should be excluded from the testimony, unless it was used as PC or cited for.

[seniorjudge]

Originally Posted by sukharev

One way to handle it may be to let him say it, then object "Irrelevant!" and explain why. In your example, mechanical condition of the car is irrelevant to the speeding charge and should be excluded from the testimony, unless it was used as PC or cited for.

Yes, that will certainly endear the defendant to the judge in a bench trial.

[sukharev]

Originally Posted by seniorjudge

Yes, that will certainly endear the defendant to the judge in a bench trial.

Nobody said it would, but the judge is either biased already or is fairly neutral, so in first case it would not matter and in second case it would help to point out that something bad about you indeed is irrelevant to the case at hand.

[Leviticus]

Originally Posted by sukharev

One way to handle it may be to let him say it, then object "Irrelevant!" and explain why. In your example, mechanical condition of the car is irrelevant to the speeding charge and should be excluded from the testimony, unless it was used as PC or cited for.

Up until today when I was in court, I had been planning on making an objection based on irrelevancy. I was going to make it just at the moment that I thought the officer was about to mention it. But of course that would be very tricky. It could slip out just before I caught it.

So now I'm thinking there might be a better way to stop it from coming into testimony.

[Leviticus]

Originally Posted by seniorjudge

This is called a motion in limine...if you think the officer is going to talk about something he shouldn't, then make that motion.

Google the term for more info.

Hi Senior. I did Google the term and found some interesting articles on it and examples.

"...One of the last steps a prosecutor takes before trial is to respond to, or file, “Motion in Limine”. A “motion” is an application to the court made by the prosecutor or defense attorney, requesting that the court make a decision before the trial begins. The motion can affect the trial, courtroom, defendants, evidence, or testimony.

Only judges decide Motions in Limine. "

But the fact that the judge decides the motion defeats the whole purpose in my case. It's one thing for a defendant not to want a jury to hear evidence, it's quite another when the evidence is not to be heard by the judge.

[seniorjudge]

Originally Posted by Leviticus

Hi Senior. I did Google the term and found some interesting articles on it and examples.

"...One of the last steps a prosecutor takes before trial is to respond to, or file, “Motion in Limine”. A “motion” is an application to the court made by the prosecutor or defense attorney, requesting that the court make a decision before the trial begins. The motion can affect the trial, courtroom, defendants, evidence, or testimony.

Only judges decide Motions in Limine. "

But the fact that the judge decides the motion defeats the whole purpose in my case. It's one thing for a defendant not to want a jury to hear evidence, it's quite another when the evidence is not to be heard by the judge.

Motions in limine are generally used in jury trials; as I said, the judge will tell you in a bench trial that the court can sift the good evidence from the irrelevant....

[sukharev]

Is it that bad? It does sound a bit like overkill for a speeding ticket trial, and in my opinion the focus should be on technicalities, which either work or they don't. A given judge would decide on how much he adheres to the law and rules of evidence, and everything else is icing on the cake. You can have a bullet-proof set of objections which should have worked, and they would not. Then again, you may be able to nail your first objection and if it's sustained motion for dismissal, you never know.

[CdwJava]

Originally Posted by Leviticus

To give an example (not the same as in my case)
if the officer has noted that a rear light was not functioning properly, that has nothing whatsoever to do with a speeding charge.
It might have been an interesting observation at the time and he might have pursued it further, but he didn't.

It may have everything to do with it. It may be what first drew his attention to the vehicle.

It will likely be up to the court to decide what is relevant what was not.

Certainly the fact that you were wearing a red tie might be irrelevant, but additional observed violations may not be. And if you were cited for those offenses, than they would certainly be relevant.

- Carl

[CdwJava]

Ultimately, why object to something unrelated such as the broken tail lens? What woudl it matter? It certainly does not go proving the offense of speeding, so why object? How would it bias the case against the defendant when it does nothing to further the prosecution?

- Carl