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Entering case law as evidence at trial
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PostPosted: Thu Aug 20, 2015 3:25 pm 
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High Authority

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If we have a specific case law that we want the JP to read with regards to decision, can we simply submit it during closing arguments with the reasons we want it to be considered?

Or does it need to be submitted during some other part of the trial, like during cross examination (assuming no defense as witness will not be testifying)?

Thanks

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Re: Entering case law as evidence at trial
PostPosted: Thu Aug 20, 2015 3:43 pm 
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Case law is generally submitted at the end of the case when the parties are making their final submissions. However, there may be times during a proceeding where case law may also need to be introduced. For example, when a motion or application is being made (i.e. at the start of the case or during the proceeding) or during a 'voir dire' (a trial within a trial). For example, if a voir dire is held to determine evidence admissibility such as admission statements made by the accused, case law might be submitted at that time. Seldom, if ever, is case law submitted during examinations (direct or cross-examination) since that is the time for evidence to be entered, not make legal arguments. Case law can also be introduced during an objection argument (for example to corroborate how a previous court ruled on whether a question was permissible or not).

Bottom line: if a question of law is being raised, then case law can be admitted since the 'trier of law' is bound by the rules of precedent. However, if the question is of one of fact, then case law cannot be entered since that is a decision to be made strictly by the 'trier of fact' only (i.e. Jury or JP or judge (in non-jury cases)). In non-jury trials, the JP or Judge serves both as the 'trier of fact' AND the 'trier of law'. Case law is introduced to assist in questions of law since fact finding is unique to each case. Of course, if you are arguing about 'judicial notice' it touches upon both law and fact, but those that's an exception to the traditional evidence rules.


Last edited by highwaystar on Thu Aug 20, 2015 4:01 pm, edited 1 time in total.

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Re: Entering case law as evidence at trial
PostPosted: Thu Aug 20, 2015 3:54 pm 
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highwaystar wrote:
Case law is generally submitted at the end of the case when the parties are making their final submissions.

Thanks ... I thought this was the case but just wanted to make sure.

And since you brought up judicial notice, let me ask a question about that ... Do you simply request the JP to take judicial notice of something you bring up before/after you mention it? For example let's say there is something related to radar device in the book "The Law of Speeding and Speed Detection Devices by Manraj & Haines" that I think can somehow bring some reasonable doubt to the officers testimony. I assume I would bring it up during cross examination, and then request judicial notice?

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Re: Entering case law as evidence at trial
PostPosted: Thu Aug 20, 2015 4:12 pm 
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Judicial notice can only be made on such facts that are so well-known that they are indisputable by anyone and therefore common knowledge. For instance, if water goes below zero degrees, it freezes. That's pretty common knowledge. However, saying that water always freezes outside in January is not an indisputable fact because while more than likely to occur, there is the possibility that a day in January could actually be warm and above zero degrees. In the first example, judicial notice could be made, but not in the second.

I hope that illustrates the limitation of when a court should make judicial notice. After all, once a court takes judicial notice of something, all other courts must accept that as fact. If the second statement were accepted then it would be prejudicial to anyone who needs to prove that it was a warm Sunny January day on in their specific case where the water didn't freeze.

So, in your case, the speeding manual will likely NOT be taken as judicial notice. Rather, what you are seeking is for the court to simply accept it as valuable evidence. It would be extremely difficult to have the manual be considered 'indisputable', especially since it is quite a contentious document to being with. While the court COULD make a determination that the manual was written by a certain person (since that is indisputable fact), making judicial notice about the the merits of anything written in the manual is not. The court can simply say they accept it or not, but they can't make it a binding fact for all other courts! After all, in the end, its just the manual author's opinion or representations.


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Re: Entering case law as evidence at trial
PostPosted: Thu Aug 20, 2015 4:21 pm 
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So then having copies of relevant pages (including cover/copyrights) and having officer read pertinent page/paragraph during cross examination would then be one way to get JP to at least consider it (assuming JP allows it to be read)?

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Re: Entering case law as evidence at trial
PostPosted: Thu Aug 20, 2015 6:49 pm 
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Technically speaking, the manual is hearsay evidence since it was written by someone else and they are not in court to testify on the document. That is, no one is there to 'authenticate' the document as having been written by them, not having been altered, etc.

However, you can always employ a 'side-way' evidence strategy so that the JP at least hears the evidence, here's an example of how you can do this:

1) Ask the officer what device they used and if they followed the manufacturer's recommendations.
2) Ask what manual they used to follow such testing on that particular device.
3) Ask whether that manual excerpts you have on you are similar to the manual that the officer read for the device. The answer will likely be ' I don't know' Doesn't really matter at this point.
4) Ask the officer to read the excerpts out loud of the manual you want to introduce.
5) Ask the officer if those statements are the same as the manual for the device.
6) Ask the officer whether what he read is consistent with what he believes the manufacturer's recommendations are.
7) Ask him if there is anything in what he read that is different from the manufacturer's recommendations.

What you've in essence done is never introduced the manual as true for its contents as evidence (since that would be hearsay), but have gotten the content of it on the record anyway and pretty much gotten the officer to corroborate it. Never once do you ask him to verify that the excerpt is the actual manual (since the logical answer will be "I don't know"; thereby negating the weight of such evidence). Instead, you are getting the officer to compare what they have read to what they believe the real manufacturer's recommendations are and literally asked him where (if anywhere) are there differences. In other words, you've gotten the officer to STATE those recommendations to the court; all without introducing the actual manual!!!

You certainly CAN try to introduce the manual as evidence (if the prosecutor gave it you then there shouldn't be any objection). However, if it gets objected to, this is an often-employed runaround strategy.

The JP will then have to evaluate the officer's testimony and will pretty much have to adapt the manufacturer's recommendations read by the officer as being the basis of the officer's testing, etc. and/or lack of testing, even though the actual manual has never been introduced. You can then refer to the officer's testimony regarding the manual in your final submissions and challenge what they did and why such evidence is uncontradicted and therefore should be given enhanced weight. After all, the prosecutor had the actual manual but didn't introduce it or challenge that evidence of the officer in that aspect, even though they had the perfect opportunity to do so!


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Re: Entering case law as evidence at trial
PostPosted: Thu Aug 20, 2015 6:56 pm 
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Thanks for your input! :)

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