Are Statements By An Officer Admissible In Court

[dasblinkenlight]

When I was stopped for speeding, the officer said something that I think would be very useful in court if I could prove that he actually said it. I know that the officer can use my words to testify against me, and it will not be considered hearsay. Can I do the same thing, or is the law non-symmetric in this respect?

Here is what hapened (from my point of view, of course - I am sure the officer saw it differently): I was driving on a relatively busy four-lane divided highway with a posted limit of 50 (probably because of the high concentration of the off-and-on-ramps in the area). I was in the second lane from the right. I saw a motorcycle in my rear view mirror, changing lanes and moving rapidly in the same direction as my car. I did not realize that it was a CHP officer because cops in our area drive motorcycles of a different model, so I decided to yield to the speeding guy, slowed down, and prepared to get to the rightmost lane. When the biker caught up with my car, he quickly moved to the rightmost lane, and signaled to me. This is when I recognied that it was a CHP officer, who then pulled me over and issued me a ticket for doing 70 in a 50 MPH zone. The officer was visibly angry with me. He became even angrier when after his standard "do you know how fast you were going?" I said "yes," but then answered "I do not have to tell you" to the follow-up question of "so how fast?" He said to me: "I try to pace you and you slow down, and this is how we get rear-ended." He was also talking to someone on the radio, and he said about me that "he slowed down from 55 to 35... no, 30, and this is how we get rear-ended."

I would like to offer officer's words as part of my defence.
- The "I tried to pace you" part shows that he was actually unable to pace me, and
- The "from 55 to 35..30" contradicts his own assertion that I was doing 70.
The trouble is, I do not know how to do it so that it's not considered hearsay.

Do you know if it is possible to obtain transcripts of the officer's radio conversations? Does CHP have it? If so, how do I ask them to give it to me if they are not intended to use the transcripts against me in court?

If I testify and say that this is what I heard the officer said, will it be inadmissible as a hearsay, or should it be allowed? If it is allowed, will it be considered expert's testimony because the officer said it, or a non-expert testimony because I related his words to the court?

Should I try asking the officer to confirm his words during cross-examination, call him to the stand as my witness once he's done being the witness for the state (is it even possible?), or should I simply tell the judge what I heard him say in my own testimony?

I know there's too many questions, but I haven't got a ticket in over a decade, and this is my first ticket in California, so I need as much help as I can find.

Thanks in advance for your help.

[cdwjava]

I would like to offer officer's words as part of my defence.
- The "I tried to pace you" part shows that he was actually unable to pace me, and
- The "from 55 to 35..30" contradicts his own assertion that I was doing 70.
The trouble is, I do not know how to do it so that it's not considered hearsay.

You can ask him if he said these things or might have said these things on cross-examination after he presents his case.

Since you only caught part of the conversation, you have no way to know what the context was. I can easily think of a rational discussion that would have started off with a mention of you doing 55 ... or was it someone else ... maybe it was him ... maybe it was a car he had to pass ... who knows? I doubt that it will be relevant unless he admits that he never estimated you to be traveling higher than 55. Fat chance there.

Do you know if it is possible to obtain transcripts of the officer's radio conversations?

You can ask for the recording as part of discovery IF he was operating over a repeater channel and not on a side band (car-to-car channels are not generally recorded). But, you will have to pay the cost of the recording and would have to pay a transcriptionist on your own to transcribe the tape (this can run about $50-100/hr in some areas).

The CHP won't be presenting the radio traffic against you in court as it is not evidence of your speed.

If I testify and say that this is what I heard the officer said, will it be inadmissible as a hearsay, or should it be allowed?

It might be allowed, but it may be of very little impact.

Also, if you testify, you may be asked how fast you WERE going. Are you prepared to answer this truthfully?

Should I try asking the officer to confirm his words during cross-examination, call him to the stand as my witness once he's done being the witness for the state (is it even possible?), or should I simply tell the judge what I heard him say in my own testimony?

He presents his case, you get the opportunity to cross-examine, then you present yours and can likewise be cross-examined. Usually the officer isn't going to ask anything because, for the most part, it's done. The court might ask some clarifying issues, and once you have testified you cannot suddenly go back and plead the fifth. You open that door, and your stuck.

There are a variety of books out there (of varying degrees of competence) that might be able to assist you in fighting a ticket. However, if you really must beat this thing, your best bet is to go with an attorney. Most people who try on-line or book defenses end up doing little more than pissing off the judge or shooting themselves in the foot ... a little knowledge can sometimes be a dangerous thing.

- Carl

[dasblinkenlight]

I can easily think of a rational discussion that would have started off with a mention of you doing 55 ... or was it someone else ... maybe it was him ... maybe it was a car he had to pass ... who knows?

...or perhaps the space aliens - who knows! That is why I need that transcript!

In general, my experience with the judges in the USA has been that they all were very reasonable people. As such, they know that the simplest explanation is nearly always the correct one, so they'd leave the "other cars he had to pass" out of it, for the same reason they'd not bring up the possibility that the officer was talking about space aliens

Also in general my experience with the police in the USA has been that they all share a common "gene" - they are unbelievably truthful (compared to the country I'm originally from, anyway). So if I ask the officer if he was talking about me, he'll most likely answer "yes," even if it hurts his case.

Also, if you testify, you may be asked how fast you WERE going. Are you prepared to answer this truthfully?

Absolutely - I have nothing to hide in this respect.

Usually the officer isn't going to ask anything because, for the most part, it's done.

I thought the officer isn't going to ask anything because he's a state witness, not a prosecutor, and so he must remain quiet until the defence or the court asks him a question. If an officer tries to ask me a question, I'll object

[cdwjava]

If an officer tries to ask me a question, I'll object

Traffic courts are very informal affairs. If you object, on what grounds will you object? While the officer may be testifying as a witness, he is also - essentially - the prosecutor on the matter. Very often the court will ask the officer if he has anything to add, or ask of the defendant. Usually, as I said, we don't.

Similarly, the judge may not ask clarifying questions because HE is not the prosecutor.

On that same vein, take note that most traffic courts are run not by actual judges, but commissioners and judges 'pro tem'. They do not always act like "normal" court judges.

- Carl

[dasblinkenlight]

If you object, on what grounds will you object? While the officer may be testifying as a witness, he is also - essentially - the prosecutor on the matter.

I was under the impression that it was the judge, not the officer, who acted as the prosecutor on the matter when the state does not send a separate prosecutor to the court, so I would object on the grounds that the officer is not an advocate.

I've been to courts that decide traffic matters on six different occasions (all outside of California - in fact, all of them were in NJ). All sessions were presided by real judges, who heard other matters in addition to traffic disputes during the same session. Two out of six times there were no prosecutor, so the judge did all the questioning himself. I have not seen a single case when an officer would ask a question during the court session.

Similarly, the judge may not ask clarifying questions because HE is not the prosecutor.

I am reasonably certain that the judge is allowed to ask questions no matter what - in fact, I remember the judge asking questions even when there was a prosecutor on the case.

Anyway, thanks a lot for your insight - I'm sure I'll understand things better once I visit a traffic court session in California.

[cdwjava]

I was under the impression that it was the judge, not the officer, who acted as the prosecutor on the matter when the state does not send a separate prosecutor to the court, so I would object on the grounds that the officer is not an advocate.

Nope - not the judge. Heck, how can the impartial trier of fact be the prosecutor?

As I said, traffic courts tend to be very informal affairs, and a lot of the typical rules might not be applied. However, in some of the publications on how to beat your ticket they encourage the readers to object to questions by the judge (not sure what grounds, as I don't have any of those books, presently). In my opinion, that's a sure way to tick off the judge, but some people try it.

I've been to courts that decide traffic matters on six different occasions (all outside of California - in fact, all of them were in NJ). All sessions were presided by real judges, who heard other matters in addition to traffic disputes during the same session.

NJ does it a lot differently than in CA. In the three counties I have worked in - and the several others I am very familiar with - traffic court hear traffic and other infractions (code enforcement, muni code violations, open container cites, etc.) and that's it. Only in my county have I ever seen a "real" judge preside over a traffic matter, and here it's because we have a number of retired judges that are called upon to fulfill this task. In larger jurisdictions this has never been the case (in my experience). The commissioner / judge pro tem is usually an attorney.

Anyway, thanks a lot for your insight - I'm sure I'll understand things better once I visit a traffic court session in California.

Yep. Especially since the actual function of each traffic court will vary to some degree.

- Carl

[dasblinkenlight]

Quick update: I got my case dismissed in a trial by written declaration. I am not sure what part of my statement convinced them (I wrote two pages describing the events from my original post), but whatever it was, the commissioner was satisfied with it.

Honestly, after hearing various traffic court "horror stories" I am surprised with how easily I got the desired outcome. Of course I did a lot of research and I think that what I wrote was an impressive defense, but still I thought I'll end up doing a real trial after a TBD.

Once again, thanks for your help!