Submission of Evidence "For Reference Only"

[jefsanger]

My question involves traffic court in the State of: California

Ive never encountered this term before hopefully somebody can explain it.

Traffic court, officer wants to submit evidence saying its for "reference only."
Judge responds "may be recieved by reference"

What happened? Is this judicial notice? Look at my evidence but dont keep it?

[Mr. Knowitall]

Perhaps it's a demonstrative aid, not an exhibit.

[themadnorwegian]

What did the officer submit?

[jefsanger]

It was a speed survey but they used the same "reference" procedure for all the evidence.
So what does this mean? I dont think its for demonstration as its critical for the prosecutions case.

[That Guy]

It was a speed survey but they used the same "reference" procedure for all the evidence.
So what does this mean? I dont think its for demonstration as its critical for the prosecutions case.

When an E&T Survey that is introduced in this manner, it basically means "I'm going to refer to it but its on file with the court".

At that point in time, it would be incumbent upon you to object and request that it be produced and that you be allowed to inspect it.

From: People v. Ellis, 33 Cal. App. 4th Supp. 25 - Cal: Court of Appeal 1995

"We agree with the decisions of the Appellate Department of the Los Angeles Superior Court insofar as they hold that in speeding cases involving the use of radar the defendant has the right to challenge the traffic and engineering survey and the prosecution has the burden of producing the survey. (People v. Halopoff [(1976) 60 Cal. App.3d Supp. 1 (131 Cal. Rptr. 531)]; People v. Smith (1981) 118 Cal. App.3d Supp. 7 [173 Cal. Rptr. 659].) However, we hold that the prosecution satisfies this burden if it lodges a certified copy of the survey with the court and the court takes judicial notice of the survey. The defendant then under Evidence Code section 455 would have the right to examine the survey in order to substantiate his/her challenge. Thus, the defendant has the burden of explicitly asking for the survey. In addition to requesting the survey, the defendant has the burden of proving its inadequacy. (People v. Smith, supra.)" (Id. at p. 10.)"

The court will have to take judicial notice of the survey and I am not so sure a simple "may be recieved by reference" is satisfactory.


But then you added:

Look at my evidence but dont keep it?

So was there something to "look" at or not?

As for the other evidence, you'll have to post all the details of the citation, the survey the date it was conducted, what evidence was introduced by reference and any objections you made and at which point did you make them!

[themadnorwegian]

More details, please! Did the officer have the speed survey in his possession when he asked for it to be admitted? Was the defendant offered a chance to examine the evidence before it was received? What else was admitted this way? What was the violation that was being tried? Did the defense object?

There's no section of the California Evidence Code that permits documents to be admitted by reference. In certain circumstances, the court may take judicial notice of documents that they already have on file. However, for engineering surveys in speed cases, the officer is still required to introduce the original or a certified true copy as evidence.

[That Guy]

In certain circumstances, the court may take judicial notice of documents that they already have on file. However, for engineering surveys in speed cases, the officer is still required to introduce the original or a certified true copy as evidence.

I agree with the judicial notice comment, I disagree with regards to "the requirement that the officer still introduce the original or a certified copy".

If an original or a certified copy of the original is on file with the court, then that satisfies the prosecution's burden to producing it!

Defendant wants to inspect it? Ask and he/she SHALL receive!

[quirkyquark]

From: People v. Ellis, 33 Cal. App. 4th Supp. 25 - Cal: Court of Appeal 1995

"We agree with the decisions of the Appellate Department of the Los Angeles Superior Court insofar as they hold that in speeding cases involving the use of radar the defendant has the right to challenge the traffic and engineering survey and the prosecution has the burden of producing the survey. (People v. Halopoff [(1976) 60 Cal. App.3d Supp. 1 (131 Cal. Rptr. 531)]; People v. Smith (1981) 118 Cal. App.3d Supp. 7 [173 Cal. Rptr. 659].) However, we hold that the prosecution satisfies this burden if it lodges a certified copy of the survey with the court and the court takes judicial notice of the survey. The defendant then under Evidence Code section 455 would have the right to examine the survey in order to substantiate his/her challenge. Thus, the defendant has the burden of explicitly asking for the survey. In addition to requesting the survey, the defendant has the burden of proving its inadequacy. (People v. Smith, supra.)" (Id. at p. 10.)"

Sorry, TG...it seems your eagle eye may have been distracted by a passing bird or two!

The above quote is not what the Ellis court holds. You missed the quotes; they're quoting Peterson (they should have used a block quote). The immediately preceding sentence is:

[The People] cite People v. Peterson (1986) 181 Cal. App.3d Supp. 7 for the proposition that the defendant had the burden of requesting the survey. "We agree ........... inadequacy."

When an E&T Survey that is introduced in this manner, it basically means "I'm going to refer to it but its on file with the court".

At that point in time, it would be incumbent upon you to object and request that it be produced and that you be allowed to inspect it.

I agree with the judicial notice comment, I disagree with regards to "the requirement that the officer still introduce the original or a certified copy".

If an original or a certified copy of the original is on file with the court, then that satisfies the prosecution's burden to producing it!

Defendant wants to inspect it? Ask and he/she SHALL receive!

Immediately following the Peterson quote, Ellis goes on to disapprove of it wholesale, as well as all the above contentions:

If People v. Peterson, supra, 181 Cal. App.3d Supp. 7, is seen as shifting to the defendant the burden of ensuring that an engineering and traffic survey is available for review by either the defendant or the court, it is contrary to every other appellate department opinion on the issue since People v. Halopoff, supra, 60 Cal. App.3d Supp. 1, which requires the People to produce, in the courtroom, either the original engineering and traffic survey or a certified copy of the survey. If Peterson is seen only as allowing a court to take judicial notice of the contents of an engineering and traffic survey — in lieu of receiving a possibly voluminous document into evidence — after that document has been physically produced in the courtroom, it is consistent with those opinions. In any case, this defendant did explicitly request the survey in a subpoena duces tecum.

So: The prosecution has the burden of always having to produce the physical survey in the courtroom, asked or unasked. Only then, instead of receiving it into evidence as an exhibit, the court can take judicial notice and (later) return it to the filing cabinet. [This is ostensibly because of the logistics of storing voluminous exhibits for the large number of traffic cases. Not that I've ever seen a traffic court ever keep exhibits once the verdict is delivered, unless explicitly asked. I believe the Ellis method would temporarily lodge the survey with the court (versus filing it or admitting it as an exhibit.). It could thus be added to any possible appellate record via a motion to augment.]

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Traffic court, officer wants to submit evidence saying its for "reference only."
...
What happened? Is this judicial notice? Look at my evidence but dont keep it?

To get back to the OP, if the officer had the physical survey in his hand and showed it to you and the judge, and the judge said "may be received by reference", that is the kind of judicial notice Ellis allows. All kosher there. It does mean that the court won't store the survey as an exhibit.

However, if you appeal, the appellate court will go strictly by what the record shows. If it does not show that the survey was physically produced, or that it was produced but the judge did not explicitly rule that it justified the speed limit, there's a good chance you could win.

---------

In certain circumstances, the court may take judicial notice of documents that they already have on file.

Strictly, if the matter judicially noticed "is of substantial consequence to the determination of the action" (Evid. Code, sec. 455), the court can ONLY take judicial notice of the following items without requiring a copy be made available to the opposing party and listening to any objections/argument they may have:

Evid. Code 451. Judicial notice shall be taken of the following:
(a) The decisional, constitutional, and public statutory law of this state and of the United States and the provisions of any charter described in Section 3, 4, or 5 of Article XI of the California Constitution.
(b) Any matter made a subject of judicial notice by Section 11343.6, 11344.6, or 18576 of the Government Code or by Section 1507 of Title 44 of the United States Code.
(c) Rules of professional conduct for members of the bar adopted pursuant to Section 6076 of the Business and Professions Code and rules of practice and procedure for the courts of this state adopted by the Judicial Council.
(d) Rules of pleading, practice, and procedure prescribed by the United States Supreme Court, such as the Rules of the United States Supreme Court, the Federal Rules of Civil Procedure, the Federal Rules of Criminal Procedure, the Admiralty Rules, the Rules of the Court of Claims, the Rules of the Customs Court, and the General Orders and Forms in Bankruptcy.
(e) The true signification of all English words and phrases and of all legal expressions.

[jefsanger]

The "relevant parts" of the survey was testified by the officer to be "in hand" . It was not shown to me or the judge at trial he just said he had it in a binder, I believe.
I objected to the survey at that point but before I could state my basis for the objection the judge asked two questions of the officer:
"is that a government record?"
officer: yes.
Court: "And certified?"
Officer: "certified, stamped copy, yes, yes sir."
Court: "Overruled"

The officer then asked to submit it for reference purposes only. Judge said "May be recieved by reference." Why didnt I object again? Because I had no idea what this reference business was all about. Ok so I screwed up...

[themadnorwegian]

Apologies for the vague and ambiguous previous statement. And thanks, Q and TG, for keeping me honest.

The officer then asked to submit it for reference purposes only. Judge said "May be recieved by reference." Why didnt I object again? Because I had no idea what this reference business was all about. Ok so I screwed up...

The fact that you objected leaves you in a good position to appeal. In addition to People v. Ellis, which has already been discussed, it would be worth your time to take a look at People v. Earnest and People v. Halopoff. Essentially, the officer can't just testify that he has the survey in hand, or that it was conducted within the 5, or 7-10 year time period. He actually has to have the survey. Otherwise, his testimony is inadmissible because the prosecution hasn't met it's burden to show that a speed trap is not present.

[U]nless the People can show that the offense occurred on a "local road," they must produce a traffic and engineering survey, no more than five years old, that justifies the posted speed limit.

<...>

Because the People did not produce either the original engineering and traffic survey or a certified copy of it demonstrating that the posted speed limits on the pertinent segments of roadway were justified by current engineering and traffic surveys, none of their evidence as to the defendants' speeds was admissible, they did not make a prima facie case against the defendants...

First, it goes without saying that the People may not suppress material evidence, for to do so hinders the search for truth which is the goal of our system of criminal justice. To further this goal the courts have recognized that it is the duty of the People to disclose substantial material evidence favorable to the accused upon request, for otherwise a defendant is denied a fair trial. (In re Ferguson (1971) 5 Cal.3d 525, 532 [96 Cal.Rptr. 594, 487 P.2d 1234] and cases cited.) Thus, if a defendant in a speeding case asks about relevant engineering and traffic survey evidence, as defendant tried to do here, such evidence must be disclosed. But the Supreme Court has gone further. It has said, "to condition the duty to disclose upon request would provide a trap for the unwary and place substantial additional burdens on our busy trial courts." (In re Ferguson, supra, at p. 532.) It is consonant with this policy to require the People to disclose without request that radar was used and to produce the engineering and traffic survey or declare their inability to do so. The prosecution will always know when radar has been used to apprehend a speeder. The defendant and the court may or may not be aware of that fact. Simple fairness, and ease of procedure, dictate that the prosecution make the fact known.

It sounds like you tried to request that the prosecution produce the traffic survey in court. If that's true, then there's a fair amount of case law that would support an appeal.