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Hello, just a hypothetical about trial / evidentiary issues...
Say a vehicle without license plates was driving excessively (for
example ... http://www.wral.com/news/strange/story/2664946/ ), and
there were no photos taken of the driver. Say it's an easily
identifiable vehicle (say the only "green motorcycle" on the street
that day or whathaveyou) and the driver's taken in at a roadblock.
At trial, the officer who got him with the laser will say, "i observed
*that* green motorcycle traveling at 156mph" or something to that
effect.
Would the defense lawyer be able to get that testimony struck because
if the motorcycle is moving that fast it wouldn't be possible for the
cop to identify the driver? In the article above, the driver was
arrested a few days after the incident. But assuming some other cop
has to stop the excessively-speeding vehicle, is the defense's top
argument that the arresting officer can't be sure he got the same
vehicle the tagging officer saw?
What other defenses are there about identifying the driver of an
unmarked vehicle?
If there were two green motorcycles and both escaped the roadblock,
could all green motorcycle riders be investigated? If there were only
two green motorcycles registered in the jurisdiction, could both
drivers be arrested outright?
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In article <go4cv3hr37hefbglhp8eo66rc0srls8rqe@4ax.com>,
c <smalltalkingchicken@gmail.com> wrote:
Would the defense lawyer be able to get that testimony struck because
if the motorcycle is moving that fast it wouldn't be possible for the
cop to identify the driver? In the article above, the driver was
arrested a few days after the incident. But assuming some other cop
has to stop the excessively-speeding vehicle, is the defense's top
argument that the arresting officer can't be sure he got the same
vehicle the tagging officer saw?
What other defenses are there about identifying the driver of an
unmarked vehicle?
In this case, the officer has to be able to identify the
vehicle. From there, they can issue a speeding ticket to the
person who is driving that vehicle. If the person driving is
not the person who was speeding, then it is up to the owner
of the vehicle to identify who was driving at the time. The
owner is by definition responsible for the vehicle, and gives
approval to anyone who operates it. If the owner was the one
ticketed, and cannot say who was driving, then it is the case
that the owner was driving and gets the ticket.
Consider a possible case where a pizza driver is speeding with
a company owned car. An officer observes the car and gives
chase. The officer gets a bit behind because he or she has
to get turned around and back up to speed. The driver ducks
into the pizza shop lot and gets out. Another driver comes
out of the shop with a load of pizzas, gets in the car, and
gets back on the same street. The officer catches up to the
car, pulls it over, and writes a citation.
In that case, it is up to the owner of the car to state who
was authorized to drive the vehicle, and who was actually
driving the vehicle. If this cannot be proven, the driver
that got the ticket might end up eating this ticket.
-john-
--
======================================================================
John A. Weeks III 612-720-2854 john@johnweeks.com
Newave Communications http://www.johnweeks.com
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"John A. Weeks III" <john@johnweeks.com> wrote in
news:58pev3ls53n9hu254cc1noi9crg2chk0ot@4ax.com:
In article <go4cv3hr37hefbglhp8eo66rc0srls8rqe@4ax.com>,
c <smalltalkingchicken@gmail.com> wrote:
In this case, the officer has to be able to identify the
vehicle. From there, they can issue a speeding ticket to the
person who is driving that vehicle. If the person driving is
not the person who was speeding, then it is up to the owner
of the vehicle to identify who was driving at the time.
The owner could testify as to whom he gave permission to drive the car.
If he didn't see the person speeding, he won't be allowed to testify
about the speeding.
The
owner is by definition responsible for the vehicle, and gives
approval to anyone who operates it.
The owner may be responsible for the condition of the vehicle and for
having the necessary licenses. He may be responsible should he knowingly
allow an impaired person to drive his car.
If the owner was the one
ticketed, and cannot say who was driving, then it is the case
that the owner was driving and gets the ticket.
Can you cite some law or precedent to back this up?
Consider a possible case where a pizza driver is speeding with
a company owned car. An officer observes the car and gives
chase. The officer gets a bit behind because he or she has
to get turned around and back up to speed. The driver ducks
into the pizza shop lot and gets out. Another driver comes
out of the shop with a load of pizzas, gets in the car, and
gets back on the same street. The officer catches up to the
car, pulls it over, and writes a citation.
In that case, it is up to the owner of the car to state who
was authorized to drive the vehicle, and who was actually
driving the vehicle.
He could probably testify truthfully to the first; maybe not to the
second.
If this cannot be proven, the driver
that got the ticket might end up eating this ticket.
Possibly. But that would be because the jury decided on the evidence
that the non-speeder was speeding.
-john-
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In article <ngihv3lgtfq4iohbcr64s5i1rtumqtlm3r@4ax.com>,
Deadrat <a@b.com> wrote:
If the owner was the one
ticketed, and cannot say who was driving, then it is the case
that the owner was driving and gets the ticket.
Can you cite some law or precedent to back this up?
It is not a law, it is a standard operating procedure of police.
If an officer pulls a car over, and the driver says "it wasn't
me driving", but cannot back up that statement, the officer is
probably going to ignore the statement and write the ticket
anyway. From there, it is up to the judge or jury to decide
(if it is contested). To present a defense, no only will the
driver have to state that he wasn't driving at the time of the
offense, but he would have to prove that, and proof is likely
going to have to involve showing who was driving at that time.
-john-
--
======================================================================
John A. Weeks III 612-720-2854 john@johnweeks.com
Newave Communications http://www.johnweeks.com
======================================================================
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Deadrat wrote:
"John A. Weeks III" <john@johnweeks.com> wrote in
news:58pev3ls53n9hu254cc1noi9crg2chk0ot@4ax.com:
Can you cite some law or precedent to back this up?
Many laws are written like that (such as parking tickets) where they
ticket the car, not the driver, so that the owner is responsible for the
ticket.
--
http://www.myspace.com/prabbit237
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On Apr 5, 4:41 am, "John A. Weeks III" <j...@johnweeks.com> wrote:
In this case, the officer has to be able to identify the
vehicle. From there, they can issue a speeding ticket to the
person who is driving that vehicle. If the person driving is
not the person who was speeding, then it is up to the owner
of the vehicle to identify who was driving at the time. The
owner is by definition responsible for the vehicle, and gives
approval to anyone who operates it. If the owner was the one
ticketed, and cannot say who was driving, then it is the case
that the owner was driving and gets the ticket.
That is certainly not the case in California. A real life example is
the photo taken by a camera at a photo enforced intersection (often
called ared-light camera). The photo and citation are sent to the
registered owner. If the owner was not driving the car, he/she has to
demonstrate the photo is not of the owner. After doing so, the owner
is under no legal obligation to implicate anyone else by identifying
the driver in the photo.
The owner may be responsible for the vehicle, but the owner is not
responsible for the action of others and could not be made to pay for
the infraction unless the owner is proven to be the driver. Abetting
criminal activity and involvement in damage causation are different
situations.
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Legally, what's the difference between excessive speeding and speeding?
225mph in a 55mph vs. 75mph in a 55mph?
In this case, the officer has to be able to identify the
vehicle. From there, they can issue a speeding ticket to the
person who is driving that vehicle. If the person driving is
not the person who was speeding, then it is up to the owner
of the vehicle to identify who was driving at the time. The
owner is by definition responsible for the vehicle, and gives
approval to anyone who operates it. If the owner was the one
You have heard of the concept of "stolen car", haven't you? The
thief usually doesn't present identification to the owner.
The owner might hand the keys to his TWO teenage kids, and legitimately
not know which one was driving. He might also give the keys to his
teenage kid, knowing full well that his (specific) girlfriend might
also drive the car. And, in these situations, the owner doesn't
know whether the car was stolen from his kid(s). Or whether a valet
was driving. Or a mechanic.
ticketed, and cannot say who was driving, then it is the case
that the owner was driving and gets the ticket.
Consider a possible case where a pizza driver is speeding with
a company owned car. An officer observes the car and gives
chase. The officer gets a bit behind because he or she has
to get turned around and back up to speed. The driver ducks
into the pizza shop lot and gets out. Another driver comes
out of the shop with a load of pizzas, gets in the car, and
gets back on the same street. The officer catches up to the
car, pulls it over, and writes a citation.
In that case, it is up to the owner of the car to state who
was authorized to drive the vehicle, and who was actually
driving the vehicle. If this cannot be proven, the driver
that got the ticket might end up eating this ticket.
The owner is probably a corporation. Assignments as to who drives
what car probably don't change more often than once a shift, and
may include several people in one car (not simultaneously). It's
quite possible that nobody keeps records as to who was driving down
to 5 minutes accuracy, and even if it is, it's likely to be based
on the watches of the drivers involved - iffy at best for this
situation, even if nobody deliberately fudges the log.
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On Apr 5, 7:41 am, "John A. Weeks III" <j...@johnweeks.com> wrote:
In article <go4cv3hr37hefbglhp8eo66rc0srls8...@4ax.com>,
c <smalltalkingchic...@gmail.com> wrote:
What other defenses are there about identifying the driver of an
unmarked vehicle?
In this case, the officer has to be able to identify the
vehicle. From there, they can issue a speeding ticket to the
person who is driving that vehicle.
But what does it mean "to be able to identify the vehicle?" If it had
no license plate and was a vehicle of some vague class and some color,
how must the officer prove that it was THIS make/model/color vehicle
and not another one 1/2 a mile back down the road?
In this specific article, it was a motorcycle without plates. Let's
say it was a green "speeder" motorcycle who was going so fast the
officer who tagged it couldn't chase it directly but had another
officer ahead on the road do the ticketing. What's the foundation
necessary? How does officer B know that this is THE green "speeder"
motorcycle that officer A tagged? Or assuming it's an easy guess that
it's the same one since no other ones were traveling on that road at
that time, how is it proven "legally" (in court)? It *is* possible
there were 2 green motorcycles on the road that day. Is that
assumption allowed? It doesn't seem fair that the driver should have
to prove that there was another green motorcycle on the road at the
same time.
Say it was a really generic vehicle, to highlight my point: some black
sedan going way too fast. Officer B pulls it over after officer A
radios "black sedan doing 90" ... Then a black sedan gets pulled over
and ticketed for doing whatever speed officer A said it was even
though it wasn't going that fast when officer B wrote the ticket. How
does that work?
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On Apr 7, 7:39 am, gordonb.ub...@burditt.org (Gordon Burditt) wrote:
Legally, what's the difference between excessive speeding and speeding?
225mph in a 55mph vs. 75mph in a 55mph?
I guess we get to be grammar buddies today, Gordon (referencing my
post a minute ago on the "isn't it?" subject).
8*)
IMO this isn't a legal distinction, it's simply a matter of language.
To me, "speeding" simply means going fast (in context, of course; what
is "fast" depends on what kind of thing we're talking about). It can
also mean, going faster than the law allows, in which usage it is
understood as a shortened form of "excessive speeding" when applied to
motor vehicles, boats or aircraft. I.e., one is charged with
proceeding at a speed in excess of a certain limit. In some
jurisdictions (VA comes to mind), speeding more than a certain number
of MPH over the limit is sufficient to charge the perp with "reckless
driving" but even there I don't think they have a separate offense
called "excessive speeding."
Going "faster than a speeding bullet" did not mean that Superman was
going to get a ticket.
"The jet was speeding across the sky faster than the sunrise" ditto.
But "The captain of the 747 was cited by the FAA for speeding;
alleging he exceeded the 250-knot speed limit below 10,000 feet on his
approach to LAX" would be a counterexample.
"The news that Ronnie and Josh were going steady was speeding through
the lunchroom," well you get the drift.
--
This posting is for discussion purposes, not professional advice.
Anything you post on this Newsgroup is public information.
I am not your lawyer, and you are not my client in any specific legal
matter.
For confidential professional advice, consult your own lawyer in a
private communication.
Mike Jacobs
LAW OFFICE OF W. MICHAEL JACOBS
10440 Little Patuxent Pkwy #300
Columbia, MD 21044
(tel) 410-740-5685 (fax) 410-740-4300
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In article <gs1kv3d1mpsi9ga94ashk9pvegecrevikq@4ax.com>,
John A. Weeks III <john@johnweeks.com> wrote:
It is not a law, it is a standard operating procedure of police.
If an officer pulls a car over, and the driver says "it wasn't
me driving", but cannot back up that statement, the officer is
probably going to ignore the statement and write the ticket
anyway. From there, it is up to the judge or jury to decide
(if it is contested). To present a defense, no only will the
driver have to state that he wasn't driving at the time of the
offense, but he would have to prove that, and proof is likely
going to have to involve showing who was driving at that time.
Maybe not.
Consider the case of a pizza parlor that delivers and has a fleet of
cars. One car gets observed speeding at 1:55 PM, but isn't stopped
then. The car is later seen (not speeding) at 2:05 PM, and is stopped
and a ticket issued. The driver who got the ticket shows that his
timecard demonstrates he didn't start working until 2:00 PM, so he
wasn't the one driving at 1:55 PM. He has no idea who was.
Seth
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"John A. Weeks III" <john@johnweeks.com> wrote in
news:gs1kv3d1mpsi9ga94ashk9pvegecrevikq@4ax.com:
In article <ngihv3lgtfq4iohbcr64s5i1rtumqtlm3r@4ax.com>, Deadrat <a@b.com> wrote: If the owner was the one ticketed, and cannot say who was driving, then it is the case that the owner was driving and gets the ticket. It is not a law, it is a standard operating procedure of police. If an officer pulls a car over, and the driver says "it wasn't me driving", but cannot back up that statement, the officer is probably going to ignore the statement and write the ticket anyway. From there, it is up to the judge or jury to decide (if it is contested). To present a defense, no only will the driver have to state that he wasn't driving at the time of the offense, but he would have to prove that, and proof is likely going to have to involve showing who was driving at that time. -john-
I took you to mean that in the case that the police cannot identify the
driver who has broken the law, they automatically ticket the owner.
Note that to present a defense, the driver ticketed (and indeed any other
defendant) has no need to prove anything. It is the state that carries
that burden.
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Mike <prabbit1@shamrocksgf.com> wrote in
news:is1kv39uj7mq9rjqjaes7rnrr40fqgfms7@4ax.com:
Deadrat wrote:
Many laws are written like that (such as parking tickets) where they
ticket the car, not the driver, so that the owner is responsible for the
ticket.
I understand about the parking. I've actually seen that happen in traffic
court, but I doubt that it applies to moving violations.
That doesn't mean it doesn't, of course.
I'm just asking.
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On Apr 8, 7:37 am, Deadrat <a...@b.com> wrote:
Mike <prabb...@shamrocksgf.com> wrote innews:is1kv39uj7mq9rjqjaes7rnrr40fqgfms7@4ax.com:
<snip>
Many laws are written like that (such as parking tickets) where they
ticket the car, not the driver, so that the owner is responsible for the
ticket.
I understand about the parking. I've actually seen that happen in traffic
court, but I doubt that it applies to moving violations.
Unfortunately, in some states, it does.
Many people, myself included, have grave Constitutional concerns over
criminal statutes that presume an owner is responsible for a moving
violation. The rights against unreasonable search and seizure, due
process of law, equal protection, the right to face one's accuser, the
right to be presumed innocent until proven guilty beyond a reasonable
doubt, all may come into play with such presumptions in a criminal
case.
Now, most parking ticket statutes and ordinances get around this
because they are quasi-criminal "violations" not misdemeanors and they
don't go on your criminal or traffic record for any purpose. Also,
what they forbid is not the "act" of placing one's vehicle in the
wrong spot at the wrong time, but simply the "fact" that the vehicle
_was_ there at the wrong time. It doesn't matter who put it there,
and it is reasonable to make the owner responsible for a non-criminal
fine based solely on the illegal presence of the vehicle in a
forbidden spot.
In many states, the red-light-camera and speed-camera enforcement is
also a quasi-criminal, civil fine. Don't get me started on how ill-
advised, safety-negative, and purely revenue-oriented such schemes
are, but as long as they don't count as moving violations or criminal
offenses, I do think photo tickets pass Constitutional muster.
However, I can't imagine that this is true in states where a photo
ticket _does_ count the same as any other moving violation, and where
the owner is presumed to be the guilty driver unless and until he
proves someone else was driving _and_ fingers the real perp.
Fortunately I do not live in such a state (yet). I would hope there
would be far more Constitutional challenges to such an infringement of
our liberties than there seem to be so far. If we all just take this
lying down, next thing we know, they'll be taking away the right of
habeas corpus, and torturing prisoners (oh, wait, they're already
doing that too, and the righty-wingy courts are letting them).
Speak up, people! Fight the power!
--
This posting is for discussion purposes, not professional advice.
Anything you post on this Newsgroup is public information.
I am not your lawyer, and you are not my client in any specific legal
matter.
For confidential professional advice, consult your own lawyer in a
private communication.
Mike Jacobs
LAW OFFICE OF W. MICHAEL JACOBS
10440 Little Patuxent Pkwy #300
Columbia, MD 21044
(tel) 410-740-5685 (fax) 410-740-4300
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Mike Jacobs <mjacobslaw@gmail.com> wrote:
gordonb.ub...@burditt.org (Gordon Burditt) wrote:
Legally, what's the difference between excessive speeding and
speeding? 225mph in a 55mph vs. 75mph in a 55mph?
I guess we get to be grammar buddies today, Gordon (referencing my
post a minute ago on the "isn't it?" subject).
8*)
IMO this isn't a legal distinction, it's simply a matter of
language.
Yes, and bad language at that. "Speeding" means, "going at an
excessive speed." The term, "excessive speeding," I suspect, comes
from that but is essentially meaningless.
Stu
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On Apr 8, 7:37 am, c <smalltalkingchic...@gmail.com> wrote:
In this specific article, it was a motorcycle without plates. Let's
say it was a green "speeder" motorcycle who was going so fast the
officer who tagged it couldn't chase it directly but had another
officer ahead on the road do the ticketing. What's the foundation
necessary? How does officer B know that this is THE green "speeder"
motorcycle that officer A tagged?
He _doesn't_ know for certain, but it's a reasonable inference, esp.
if the cop also testifies that....
Or assuming it's an easy guess that
it's the same one since no other ones were traveling on that road at
that time,
Now, sure, the defense could argue that the real perp had pulled into
a garage somewhere between cop A and cop B, and that his little ol'
innocent self just happened to pull out of another garage and onto the
roadway, heading the same direction and driving the same kind of
vehicle, and then got pulled over by cop B for no reason. But is that
scenario likely? Is it believable? Would it raise a reasonable
doubt in your mind that cop B caught the right guy?
how is it proven "legally" (in court)?
"Proof" in court does not mean mathematical proof that completely
eliminates all other possibilities. Circumstantial proof, if strong
enough, can suffice to eliminate all "reasonable doubt" and support a
conviction. IMO the scenario in OP's case would support a conviction
if all the facts included in that scenario were present - esp. if both
the green motorcycle officer A saw, and the green motorcycle officer B
stopped and ticketed, lacked license plates, and no other green
motorcycles (with or without plates) were observed by either officer
within the several minutes surrounding this incident.
It *is* possible
there were 2 green motorcycles on the road that day. Is that
assumption allowed?
The defense can raise it as a possibility, but a mere possibility is
not enough to overcome the strong probability that the 2 officers saw
the same green motorcycle -- again, assuming the circumstances are
sufficient to eliminate reasonable doubt.
It doesn't seem fair that the driver should have
to prove that there was another green motorcycle on the road at the
same time.
He doesn't _have_to_ prove it. He's _allowed_ to try to prove it as
a defense, but has no obligation to prove anything at all. OTOH, if
the State has a strong circumstantial case against him, he (through
his lawyer) surely better well find some evidence or some argument
that would raise a reasonable doubt in the factfinder's mind. It is
not unknown for an innocent person to be convicted on strong but
misleading circumstantial evidence simply because the defendant lacks
sufficient contrary evidence to prove his innocence.
Say it was a really generic vehicle, to highlight my point: some black
sedan going way too fast. Officer B pulls it over after officer A
radios "black sedan doing 90" ... Then a black sedan gets pulled over
and ticketed for doing whatever speed officer A said it was even
though it wasn't going that fast when officer B wrote the ticket. How
does that work?
There may be more "wiggle room" there for the defense to show they
were two different vehicles, since you leave out from that hypo the
fact that no other black sedans were observed to pass that stretch of
highway during that time frame. And there are a lot more black sedans
(of unspecified make) on the road at one time than there are green
motorcycles. But it's still up to the factfinder (judge or jury) to
determine whether the circumstantial evidence presented by the State,
with whatever holes were poked in it by the defense, is sufficient to
infer beyond a reasonable doubt that defendant is guilty of the
offense charged. There's no black-and-white answer: "it depends."
--
This posting is for discussion purposes, not professional advice.
Anything you post on this Newsgroup is public information.
I am not your lawyer, and you are not my client in any specific legal
matter.
For confidential professional advice, consult your own lawyer in a
private communication.
Mike Jacobs
LAW OFFICE OF W. MICHAEL JACOBS
10440 Little Patuxent Pkwy #300
Columbia, MD 21044
(tel) 410-740-5685 (fax) 410-740-4300
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Deadrat wrote:
Mike <prabbit1@shamrocksgf.com> wrote in
news:is1kv39uj7mq9rjqjaes7rnrr40fqgfms7@4ax.com:
I understand about the parking. I've actually seen that happen in traffic
court, but I doubt that it applies to moving violations.
That doesn't mean it doesn't, of course.
I'm just asking.
Some states handle such traffic-camera fines as "non-moving" (i.e. no
points) much like a parking ticket (I think NC does it that way) and
others do access points (but also often require that the driver be
identifiable in the picture. CA, I think, does it that way for red-light
cameras.)
--
http://www.myspace.com/prabbit237
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In article <l5mmv39ov1tspphjs0hfnh25f3tkk9lmla@4ax.com>,
Deadrat <a@b.com> wrote:
Mike <prabbit1@shamrocksgf.com> wrote in
news:is1kv39uj7mq9rjqjaes7rnrr40fqgfms7@4ax.com:
Many laws are written like that (such as parking tickets) where they
ticket the car, not the driver, so that the owner is responsible for the
ticket.
I understand about the parking. I've actually seen that happen in traffic
court, but I doubt that it applies to moving violations.
I believe at least one state has made traffic camera (red light
running, speeding) tickets payable by the owner (if the driver can't
be proven), but they do not carry points against a license.
Seth
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Mon, 07 Apr 2008 07:38:56 -0400 from John A. Weeks III
<john@johnweeks.com>:
To present a defense, no only will the
driver have to state that he wasn't driving at the time of the
offense, but he would have to prove that, and proof is likely
going to have to involve showing who was driving at that time.
You're right as a practical matter, because traffic court is usually
not about justice but about collecting an arbitrary and capricious
tax on unlucky motorists.
But legally, the police have to prove, beyond a reasonable doubt(*),
that the ticketed person was the driver.
(*) in states where traffic offenses are criminal. In states where
traffic offenses are not criminal, "beyond a reasonable doubt" may
not apply, but still the burden of proof is on the state and not on
the accused. Or rather, that's what the law says. In practice,
traffic court, the bastard stepchild of our court system, most often
operates on the principle of "if you're here you're guilty".
--
If you e-mail me from a fake address, your fingers will drop off.
I am not a lawyer; this is not legal advice. When you read anything
legal on the net, always verify it on your own, in light of your
particular circumstances. You may also need to consult a lawyer.
Stan Brown, Oak Road Systems, Tompkins County, New York, USA
http://OakRoadSystems.com
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In article <0l0sv35skcuuqprcnb1j551a7k3dvpsrbk@4ax.com>,
Mike Jacobs <mjacobslaw@gmail.com> wrote:
Now, sure, the defense could argue that the real perp had pulled into
a garage somewhere between cop A and cop B, and that his little ol'
innocent self just happened to pull out of another garage and onto the
roadway, heading the same direction and driving the same kind of
vehicle, and then got pulled over by cop B for no reason. But is that
scenario likely? Is it believable? Would it raise a reasonable
doubt in your mind that cop B caught the right guy?
If the defendant's address is between those two points, and he has a
garage, then sure, I'd believe he left his home at an unlucky time.
Seth
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On Apr 11, 7:16 am, se...@panix.com (Seth) wrote:
In article <0l0sv35skcuuqprcnb1j551a7k3dvps...@4ax.com>,
Mike Jacobs <mjacobs...@gmail.com> wrote:
If the defendant's address is between those two points, and he has a
garage, then sure, I'd believe he left his home at an unlucky time.
I might too, depending (but the unrefuted fact that his bike, like the
one the actual perp was riding, had no license plates is a big red
flag to my skeptical mind). You can always change the outcome of a
hypothetical by throwing new facts into the mix. But in the "real
world" (or, assuming no one is sharp enough to point out, at an actual
trial, that the defendant lives between the 2 points) that additional
fact either is or isn't going to be in evidence, and the factfinders
will rule accordingly based on whatever evidence they have in front of
them. If no one mentions Seth's point at trial, I would still find
the coincidental situation not credibile -- and even if defendant
_does_ live between Cop A and Cop B, how many unlicensed, green
motorcycles are likely to be seen on the same stretch of road within a
few minutes of each other?
I would also assume an observant Cop A and Cop B could each give a
more precise description of the motorcycle they saw if this were an
actual trial, than just to say that it was "green" and "unlicensed" --
e.g. Cop A could say, "I saw a green late model Kawasaki Ninja
sportbike with a full fairing, dual headlights and a tinted windshield
and no license plate pass my observation post on southbound Highway X
doing at least 120 mph per the radar gun, at which point I radioed
that info to Cop B down the road and asked him to stop that vehicle
for speeding" and Cop B could say "After receiving a call from Cop A
that a green late model Kawasaki sportbike with a full fairing, dual
headlights and a tinted windshield and no license plate had passed him
on southbound Hwy X at a highly excessive rate of speed, and
requesting that I apprehend the rider, about 2 minutes later I
observed a vehicle meeting that description traveling south on Hwy X
at below the speed limit, about a mile south of Cop A's stakeout, and
I flagged him down and ticketed him." Both cops would come testify at
the trial, and together their testimony would be pretty convincing IMO
even if BikerBoy's building was right there on Highway X.
--
This posting is for discussion purposes, not professional advice.
Anything you post on this Newsgroup is public information.
I am not your lawyer, and you are not my client in any specific legal
matter.
For confidential professional advice, consult your own lawyer in a
private communication.
Mike Jacobs
LAW OFFICE OF W. MICHAEL JACOBS
10440 Little Patuxent Pkwy #300
Columbia, MD 21044
(tel) 410-740-5685 (fax) 410-740-4300
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In article <897104hg3eo1e7j8qaue3gpb2kiu28kqdu@4ax.com>,
Mike Jacobs <mjacobslaw@gmail.com> wrote:
I would also assume an observant Cop A and Cop B could each give a
more precise description of the motorcycle they saw if this were an
actual trial, than just to say that it was "green" and "unlicensed" --
e.g. Cop A could say, "I saw a green late model Kawasaki Ninja
sportbike with a full fairing, dual headlights and a tinted windshield
and no license plate pass my observation post on southbound Highway X
doing at least 120 mph per the radar gun, at which point I radioed
that info to Cop B down the road and asked him to stop that vehicle
for speeding" and Cop B could say "After receiving a call from Cop A
that a green late model Kawasaki sportbike with a full fairing, dual
headlights and a tinted windshield and no license plate had passed him
on southbound Hwy X at a highly excessive rate of speed, and
requesting that I apprehend the rider, about 2 minutes later I
observed a vehicle meeting that description traveling south on Hwy X
at below the speed limit, about a mile south of Cop A's stakeout, and
I flagged him down and ticketed him."
Oops. The radio call takes time; if the biker was going 120 mph, he'd
reach Cop B less than one minute after the radio message. Even if he
slowed to 60, it would be well under two minutes.
Seth
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Seth wrote:
In article <897104hg3eo1e7j8qaue3gpb2kiu28kqdu@4ax.com>,
Mike Jacobs <mjacobslaw@gmail.com> wrote:
Oops. The radio call takes time; if the biker was going 120 mph, he'd
reach Cop B less than one minute after the radio message. Even if he
slowed to 60, it would be well under two minutes.
Try saying "late model Kawasaki Ninja sportbike with a full fairing,
dual headlights and a tinted windshield and no license plate."
That can be done in about 5-10 seconds. The cops don't have to say:
Unit 1: Unit 2, are you there? Over.
Unit 2: Yes, Unit 1, I'm here. Over.
Unit 1: I have a late model Kawasaki Ninja sportbike with a full
fairing, dual headlights and a tinted windshield and no license plate.
Do you see it? Over.
<etc>
They'd be set to a specific channel and be expecting the calls from the
other officer so it'd only be "just the facts, ma'am."
--
http://www.myspace.com/prabbit237
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On Apr 13, 7:19 am, se...@panix.com (Seth) wrote:
Oops. The radio call takes time; if the biker was going 120 mph, he'd
reach Cop B less than one minute after the radio message. Even if he
slowed to 60, it would be well under two minutes.
Sure, that's fine, if you're cross examining an actual cop who
testified incorrectly. But since you and I were discussing the
general form of the kind of testimony that could result in a
conviction on circumstantial evidence if all the numbers worked, now
you're just being nit-picky. I wasn't trying to construct an
ironclad hypothetical case against BikerBoy B (the innocent one who
just pulled out of his driveway at the wrong time) and I certainly
wasn't taking the time to make sure the facts of my hypothetical
example (speed-time-distance numbers in particular) passed physical
muster, per your critique.
The bottom line is, the law is quite clear in every state AFAIK that
circumstantial evidence is sufficient to support a criminal conviction
(or a civil judgment) if in the mind of the factfinder it meets the
requisite standard of proof (beyond a reasonable doubt, clear and
convincing, or preponderance of the evidence, as may apply in the
particular kind of case) and is believed by the factfinder to
establish that the fact which such evidence is proffered to prove is
true. What makes it circumstantial is that the evidence does not
directly establish the fact at issue, but rather establishes a related
fact that, in the mind of the factfinder, in turn proves the disputed
fact.
Let's take a different example than BikerBoy. Say the question at
issue is, whether anyone passed by on the sidewalk in front of a
certain house on a certain day between 1 and 3 pm. Let's further say
that, no one (so far as we know) saw anyone walk by during that time,
so it is impossible to prove by direct evidence (i.e., no witness can
truthfully testify "I saw Joe Jones walk by Widow Walker's house at
2:30 pm on Saturday the 4th") what they are trying to prove. But
let's say, further, that someone can testify that it began snowing at
12:30 pm, that they looked out Widow Walker's window at 1 pm and saw
fresh, untrammeled snow on her walkway, and that when they next looked
out the window again at 3 pm, there were footprints in the snow. To
the mind of most jurors, that would tend to prove that someone walked
by that house between 1 pm and 3 pm. The fact that it's indeed
possible someone could have flown by in a hot air balloon and made the
footprints using shoes glued to the end of long wooden poles they had
carried with them in the gondola basket for that purpose as a
practical joke would not, in most people's minds, raise a reasonable
doubt that someone did in fact walk by during the relevant time.
Whether or not particular circumstantial evidence, even if
uncontradicted in itself, is sufficient to prove the related fact that
is actually at issue in the case, is highly fact-specific, which is
why the only true answer we can give here when someone asks us to
predict what a real judge or jury will do with a certain (usually
skeletally presented) set of facts is, "it depends."
--
This posting is for discussion purposes, not professional advice.
Anything you post on this Newsgroup is public information.
I am not your lawyer, and you are not my client in any specific legal
matter.
For confidential professional advice, consult your own lawyer in a
private communication.
Mike Jacobs
LAW OFFICE OF W. MICHAEL JACOBS
10440 Little Patuxent Pkwy #300
Columbia, MD 21044
(tel) 410-740-5685 (fax) 410-740-4300
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In article <okh604tu21nuo5phj9grokivqc5dkkqo2r@4ax.com>,
Mike <prabbit1@shamrocksgf.com> wrote:
Seth wrote:
Try saying "late model Kawasaki Ninja sportbike with a full fairing,
dual headlights and a tinted windshield and no license plate."
That can be done in about 5-10 seconds. The cops don't have to say:
If he's travelling at 120 mph, and slows down to 60 mph, he'll be at
Cop B's location between 30 seconds and one minute after he passes Cop
A. If the radio call takes 5 seconds, Cop B gave the ticket to
someone who passed him 1:05 to 1:35 after the speeder who passed Cop
A.
Seth
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In article <qkh604lpddaermm8kgacqv0892kuu9hg48@4ax.com>,
Mike Jacobs <mjacobslaw@gmail.com> wrote:
Let's take a different example than BikerBoy. Say the question at
issue is, whether anyone passed by on the sidewalk in front of a
certain house on a certain day between 1 and 3 pm. Let's further say
that, no one (so far as we know) saw anyone walk by during that time,
so it is impossible to prove by direct evidence (i.e., no witness can
truthfully testify "I saw Joe Jones walk by Widow Walker's house at
2:30 pm on Saturday the 4th") what they are trying to prove. But
let's say, further, that someone can testify that it began snowing at
12:30 pm, that they looked out Widow Walker's window at 1 pm and saw
fresh, untrammeled snow on her walkway, and that when they next looked
out the window again at 3 pm, there were footprints in the snow. To
the mind of most jurors, that would tend to prove that someone walked
by that house between 1 pm and 3 pm.
Yes, _someone_ did. If Widow Walker was shot and killed at 2 PM by
someone on the sidewalk in front of her house, and we know that Joe
Defendant finished eating lunch with her left-hand neighbor at 12:30,
and arrived at her right-hand neighbor at 5 PM to have dinner, would
you vote to convict?
Seth
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