Options in my Trial for 28km/h over

jsherk
High Authority
High Authority
Posts: 1722
Joined: Thu Jul 26, 2012 1:18 pm

Re: Options in my Trial for 28km/h over

by: jsherk on
Mon Oct 05, 2015 12:59 pm

Exactly the point Decatur was trying to make.

I have personally not ever dealt with LIDAR but remember reading some case laws that talked about it.

The main areas where you might be able to bring reasonable doubt to the officers testimony are:
- what do they have written in notes about testing device (when did they test, how did they test it, what was the outcome)
- testing procedure they used (ask them during cross examination) versus what is written in the manual
- something to do with the distances (I remember reading a case law where there was something about the distance when testing versus the actual distance they got you at)
+++ This is not legal advice, only my opinion +++


mrorange
Jr. Member
Jr. Member
Posts: 27
Joined: Thu Aug 20, 2015 9:48 am

by: mrorange on
Mon Oct 05, 2015 1:46 pm

Jsherk, regarding the fact that what is in his notes are not 100% accurate :

Constables notes say I didnt dispute the speed, which i guess is technically true, but he did say to me "from the look on your face you seem surprised at 28 over" which I acknowledged i was surprised.

Constables notes also say "He was hurrying to get to the customs office before it closed", I did indicate I was heading for an appointment at the customs office before it closed at 4pm, I dont recall using the words "hurrying". I was pulled for speeding at 3:17, i was 10 minutes from the customs office, I still made it on time after being pulled and issued a ticket.


how would I get the fact that this isnt true into the evidence without giving testimony myself ? the other issue is, he recorded my Licence as a G class, when in fact its a GM (not material in an of itself but I wonder if it matters that the notes have 3 areas that are not correct or dont represent the actual dialogue or words used by me. Sloppy and somewhat presumptuous


jsherk
High Authority
High Authority
Posts: 1722
Joined: Thu Jul 26, 2012 1:18 pm

by: jsherk on
Mon Oct 05, 2015 2:05 pm

The G or GM issue does not matter.

As I said above, the officer can NOT enter your statements into evidence and you should object if he tries to do it.

There is really no way attack sloppy notes unless the issue is significant. A JP will give different "weight" to any issues you bring up, so for example with the G versus GM issue might go like this in cross examination:
YOU: Officer I notice you said in your note I have a G license? Is that correct?
OFFICER: Yes
YOU: May I approach the witness to show them my drivers license?
COURT: Yes
YOU: (give your drivers license to officer) Is this my drivers license?
OFFICER: YES
YOU: Does it say G on it?
OFFICER: No it says GM
YOU: thank you

So in this scenario you have gotten the officer to admit a mistake in his testimony/notes. But really this issue is mostly irrelevant to the issue at hand so the JP would give it very very little weight, if any at all. Now if there were dozens of issues with the notes/facts and you could get officer to admit these errors on the stand then this would start to make the officers testimony look not credible. But simply mis-quoting you (which they should not mention anyways) and putting down G instead of GM is not going to help your case at all.

Can you scan and post the officers notes here (with personal info blacked out)? I am interested in seeing the information in the notes related to testing the device.
+++ This is not legal advice, only my opinion +++


mrorange
Jr. Member
Jr. Member
Posts: 27
Joined: Thu Aug 20, 2015 9:48 am

by: mrorange on
Mon Oct 05, 2015 3:05 pm

no scanner, but here is a verbatim transcribe from the notes,XXX or 999 used to hide personal info and real names not used.

Sgt White:

(no time noted in notes but his next note after this is 14:33)
LIDAR Test Ok
Setup w/ Cst Blue and Green

15:17 - Wh Dodge Tk 128 523.52 given to Const Blue then over to Cst Green
Tk in lane 2 catching up to other slower traffic

Const Green

14:27 at Hwy 11 NB lanes at LSD
Sgt White operating LIDAR, monitoring N/B traffic

15:17
-Sgt White advised he has observed a white dodge ram pickup N/B on hwy 11 approachingLSD traveling at high rate of speed
-MV captured on LIDAR at 523.52m, traveling at 128km/h
-I observed subject MV as it passed LSD
-I conducted a traffic stop without losing sight of the MV at any time
-I advised the male of the reason for the stop & speed
-Male did not dispute speed, he stated he was hurrying to get to the customs office before it closed
- DR - MR Orange XXXXX town
-DL XXX999
Vehi - Dodge Ram xxx999.
Ins - XXXX co. Pol #99999

-issued Mr Orange POW#99999 for speeding 128 km/h in a posted 100 km/h zone

15:25
10-8
Last edited by mrorange on Mon Oct 05, 2015 3:13 pm, edited 1 time in total.


mrorange
Jr. Member
Jr. Member
Posts: 27
Joined: Thu Aug 20, 2015 9:48 am

by: mrorange on
Mon Oct 05, 2015 3:10 pm

Do I have a case to determine if the LIDAR officer never confirmed that the Trk he clocked was the Truck Cst Green pulled over ? doesnt there have to be some sort of affirmation from one officer to the other ?


jsherk
High Authority
High Authority
Posts: 1722
Joined: Thu Jul 26, 2012 1:18 pm

by: jsherk on
Mon Oct 05, 2015 3:26 pm

That is a possible angle to bring some reasonable doubt. Is it enough to win? I am not sure.

But what I do see is that there is only one LIDAR test at the start of the shift but no test listed after. Read this:
http://www.ontariohighwaytrafficact.com/topic7018.html
+++ This is not legal advice, only my opinion +++


mrorange
Jr. Member
Jr. Member
Posts: 27
Joined: Thu Aug 20, 2015 9:48 am

by: mrorange on
Mon Oct 05, 2015 3:40 pm

Thank you, so if its not in the notes then its one of 2 possible outcomes

1) if not in his notes at all, its not considered proof if he just testifies to such during the trial, ie independent recollection isnt proof ?
2) if its in his notes, but on later pages and I didnt get it in disclosure then I seek an adjournment ?


jsherk
High Authority
High Authority
Posts: 1722
Joined: Thu Jul 26, 2012 1:18 pm

by: jsherk on
Mon Oct 05, 2015 3:51 pm

1) previous case laws I read said that independent recollection is not proof... so that is definitely a good one to pursue

2) if it was not disclosed then you object if he reads it from his notes because it was not dislcosed to you and therefore cannot be entered as evidence, so it's as if (1) above occured
+++ This is not legal advice, only my opinion +++




mrorange
Jr. Member
Jr. Member
Posts: 27
Joined: Thu Aug 20, 2015 9:48 am

by: mrorange on
Tue Oct 06, 2015 7:21 am

First, I want to say thanks for the tips and advice of the members here, I appreciate benefiting from you experience.

I have another question regarding point 1) if not in his notes at all, its not considered proof if he just testifies to such during the trial, ie independent recollection isnt proof.

If the notes are just there to jog the memory of the officer and they dont have to rely on them. Where is the line drawn between being able to recall that he tested the LIDAR at end of shift vs having to have it written in notes? is it the level of specificity ? can he say that he tested it at the end of the shift but cant say what time, or what tests he performed or where ?


jsherk
High Authority
High Authority
Posts: 1722
Joined: Thu Jul 26, 2012 1:18 pm

by: jsherk on
Tue Oct 06, 2015 8:18 am

So if he says something that is not in his notes, then on cross-examination you can ask a question like "You said you tested it at the end of your shift? YES. But you do not have it written down in your notes? NO I DONT, BUT IT'S MY USUAL PRACTICE."

Then in closing statements you say "The officer testified that he tested it at the end of his shift, yet it is not recorded in his notes. Case law for R. vs XYZ and R. vs ZXY and R. vs ABC say that usual practice is not sufficient to prove beyond a reasonable doubt and therefore there is reasonable doubt as to the operation of the device."

Your question about "where to draw the line" will be answered when you read the case laws. You have to pay attention to what the person testified, what question was asked in cross examination and what point was brought up during closing statements. You might ask the right question during cross examination but you also have to bring up the point you were getting at in closing statements.
+++ This is not legal advice, only my opinion +++




mrorange
Jr. Member
Jr. Member
Posts: 27
Joined: Thu Aug 20, 2015 9:48 am

by: mrorange on
Thu Oct 08, 2015 7:27 am

Im typing up my Trial questions etc. Can you confirm that i get to say a closing argument or closing remarks to summarize my points and link all the areas of reasonable doubt ? I would think i do.

Also, if I do, I want to close this in a professional way, after I summarize my arguments do I say something like "...as such I beleive it has been demonstrated that there are a number of areas of reasonable doubt in this case and I move that a verdict of not guilty be rendered "

is that correct/proper form or does it matter

it obviously my first time at this, but im sure it helps to be as correct as possible


jsherk
High Authority
High Authority
Posts: 1722
Joined: Thu Jul 26, 2012 1:18 pm

by: jsherk on
Thu Oct 08, 2015 11:00 am

Trail goes something like this:

Read the charges to you.. How do you plead? NOT GUILTY

Prosecutor calls their first witness (examination in chief).
You then can cross-examine first witness. This is NOT where you explain your side of the story. This is were you ask lots of questions to try to show doubt in what officer said. But remember you do not need to point out what the reasonable doubt was that you raised here, as you do that in the closing statements.
Prosecutor then has a chance to re-exmine their witness based on anything you brought up.
You get chance to re-cross-examine on the issue the prosecutor brought up.

Prosecutor calls their second witness (examination in chief).
You then can cross-examine second witness.
Prosecutor then has a chance to re-exmine their witness based on anything you brought up.
You get chance to re-cross-examine on the issue the prosecutor brought up.

Prosecutor makes closing statements as to why they proved their case and why you should be guilty.

You make closing statements pointing out all the issues you brought in cross examination that show reasonable doubt and reference all the case laws to support it.

JP makes decision

If found guilty, JP asks prosecutor if anything they want to say anytihgn about amount of fine, and will then ask you. This is good time say you think the the victim surcharge should be removed since there was no victim, and also how money is tight and the fine should be reduced.
+++ This is not legal advice, only my opinion +++


mrorange
Jr. Member
Jr. Member
Posts: 27
Joined: Thu Aug 20, 2015 9:48 am

by: mrorange on
Thu Oct 08, 2015 12:38 pm

Thanks jsherk, I appreciate you answering my onslaught of questions as I get close here. the other thing that im conscious of is how I ask my questions without giving evidence myself. I know i can ask leading questions, but not sure where i cross the line into giving evidence.

for example, I'd rather say " Officer Green, Isnt it true that there were 2 vehicles imemdiatley in front of my MV when I passed your location on the highway"

vs asking "Officer Green, do you recall how many vehicles were immediately in front of my vehicle..."

OR

id rather say "isnt it true that you stopped by vehicle 1km from your original position at the overpass"

vs

"How far from the overpass was it when you stopped my vehicle"



Im I ok to use the leading question approach in both cases vs leaving it open ended ?


Post Reply
  • Similar Topics

Return to “Exceeding the speed limit by 16 to 29 km/h”

Who is online

Users browsing this forum: No registered users and 1 guest