Blue = My dialog
Red = Officer’s/judge’s response
Black = notes or questions I did not ask
This document was originally in two column format with my question on the left and room for notes on the right, but it’s easier to read this way so I’ve reformatted it.
This was for an appeal of a magistrate’s decision that found me responsible. The trial date was 12/27/2007 and the ticket was issued by the MSP on Route 290 for 87 in a 65, LIDAR at 1197.6’, MGL 90/17 and the fine was $220.
I’ve gone through the exercise of preparing a cross-exam before, but I’ve never had to actually go through with it. Either the cop hasn’t shown up or the paperwork has been misplaced. I refreshed my memory and prepared this document by reading the NMA website, reading a book I got via the NMA a while back (it was based on a CA trial so as it turned out, much of the procedural stuff didn’t apply) and by googling “speeding ticket” and “cross exam”.
I had butterflies for two days prior to the trial and I spent several hours preparing this document. I went to court with mixed feelings as to whether I hoped the officer would show because on one hand I’d hate to have all my work wasted, but on the other, the ultimate goal here was to be found not responsible.
At this point I had already filed public records requests for the usual things, calibration logs, officers training certificate, officer’s notes, etc. I did not receive the officer’s notes, I received the “manufacturer’s calibration certificate” and a copy of the officers training certificate. The LIDAR unit was an Ultralyte 20/20 but it did not specifically state which model, there are several. In the info I received from the MSP, it said I would have to file a request with their HQ for specific calibration info. I received this notice about 3 weeks prior to trial. I immediately requested the records as well as the exact model number from the MSP HQ.
I had filed a motion for continuance for the reason of allowing the MSP time to respond to my latest records request but I never heard back from the court (I was given a piece of paper at the magistrate’s hearing saying I could not continue but figured I’d try). The officer also asked for a continuance for the reason of ‘jury duty’ and it was granted. It’s been almost a month and I have not received a response to my second records request to the MSP HQ.
On court day, I show up dressed in khaki’s, a shirt, tie and jacket. I’ve seen this mentioned time and again, but still it always amazes me how people dress for court. Other than the attorneys, I was the only one that made an attempt to look presentable. The cop is present and in uniform, swell. I wait for about 30 minutes while people with representation handle various minutiae. The first person actually called to the stand to do more than plead is a girl who received a speeding ticket from the same cop. She gave the ‘I don’t think it was me’ speech, the judge quickly finds her guilty and fines her $100. I’m quaking with fear at this point, and of course I’m called next. I’m sworn in.
The officer starts reading his notes.
OBJECTION, the witness is
reading notes, I’d request that they be put away.
Overruled.
In addition, I when I filed a public records request with
the MSP, I asked specifically to be provided with any notes related to
this citation that Trooper Smith intended to present in court. These were not provided.
Ask to see the notes
OBJECTIONS:
NARRATIVE,
IMMATERIAL
CALLS FOR A CONCLUSION, NOT QUALIFIED, NON RESPONSIVE
I have a right to find out if a question would call for an objectionable answer
Object before he gets everything in
Withdraw objection
TROOPER can only testify to facts, cannot argue, cannot try to convince judge of anything
Officer continues to read notes, I’m checking off the list below to make sure he mentions I’m the driver, where the offense happened, and how fast I was going. He gets to a point where he is about to mention the occupants of the vehicle (my family):
In addition to the driver, I observed that in the
passenger seat was…
OBJECTION, IMMATERIAL
Sustained.
The cop looks questioningly at the judge, the judge explains to him that the occupants of the vehicle have no bearing on the charge. I start to feel a little less nervous.
During the cop’s dialog, listen for:
How are you doing this morning?
Fine.
How long have you worked as a police officer in
Massachusetts?
15 years.
What was the result of your last performance
review? (outstanding,
average, poor)
We don’t get performance reviews.
How many complaints have been filed against you
since you’ve been a police officer? (Do you mean nobody has EVER
complained about you?)
A bunch.
By a bunch, do you mean more than 20?
A bunch.
More than 40?
I have no idea, I don’t count them.
Officer,
as you sit on the stand today, can you recall the events of the citation?
I issue a lot of tickets, I
can’t remember them all specifically.
Without
your notes, would you have been able to testify?
No.
Were you relying exclusively on your notes to testify
today?
Yes.
Officer, what color was the vehicle I was driving?
(only if he IDs me as driver)
Grey (the vehicle was actually silver, but I
didn’t have a picture so I’m not sure where I was going with this, the idea was
to show he didn’t have independent recollection, but he had already admitted
that, so I probably could have left this out).
What shade?
GREY!!! (he was pretty annoyed at
this point)
Did the vehicle have any unusual
characteristics?
It was a Toyota.
Did it have a sun roof?
Were the headlights on or off?
Did you see the tractor trailer in the lane adjacent to me?
Was there anything that might have impeded your vision?
No.
On the day you issued me this citation, how
long had you spent operating LIDAR that day?
I have no idea.
How many other citations did you issue that
day?
I have no idea.
When was that LIDAR unit issued to you? What time?
They aren’t issued to us.
When you arrive at work in the morning, you don’t
check out a LIDAR unit for the day?
yes.
So it was issued to you that morning?
yes.
From where?
When was your LIDAR unit last calibrated?
Who calibrated it? (what
person, what were his qualifications)
How many hours of operation did the unit have on it since the last time it was
calibrated?
When you want to obtain the speed of a vehicle, do
you look through a view finder n the LIDAR unit?
No, it has a scope.
Is it magnified?
No, there is no magnification.
Is there a way to ‘lock on’ to a specific
vehicle?
What do you mean ‘lock on’?
Is the LIDAR unit capable of tracking a specific
vehicle all on its own once you’ve selected a vehicle you wish to track the
speed of?
No, we..
OBJECTION YOUR HONOR, NON RESPONSIVE AFTER NO.
Overruled. Officer, continue
what you were going to say.
The officer goes on about how there’s a Doppler tone as long as he continues to
hold the trigger and keeps the LIDAR unit pointed at the same vehicle. He continues to talk about when the LIDAR
unit was calibrated (MSP calibrates their LIDAR units once a year in February),
and even goes to correctly mention that the beam at 1200’ (the distance I was
clocked at) is just over 4’ wide.
When you see a vehicle through the viewfinder, to
determine the speed, you aim at the vehicle and pull a trigger?
Yes.
Between the time
you pull the trigger and the time a speed reading is displayed, is there a time
lapse?
3 milliseconds.
If he says it’s instantaneous, ask if he’s suggesting it takes absolutely zero
time for the laser to reach the vehicle, reflect back off the vehicle and for
the LIDAR unit to obtain a reading? I
think Einstein would have loved to know the speed of light is infinite. So it takes some amount of time then?
During that time, do you have to hold the gun still
and aimed at the same spot on the vehicle?
Yes.
If you move the gun while it’s taking a
reading, can the movement results in an erroneous reading?
No. (I
think this is wrong, but I really wasn’t sure how to contest it, a copy of the
LIDAR operators manual probably would have helped, but I didn’t even know which
Ultralyte model it was)
During the time you’re taking your reading, has the
vehicle moved?
Yes.
So you have to move the gun then to keep it
pointed in the exact same spot?
Yes.
Were you standing in the middle of the road directly in front of the vehicle?
How far were you from my vehicle when you obtained
your speed reading?
1197.6 feet.
What part of my car did you aim at? (can you be more
specific?)
The front.
Is the LIDAR beam visible?
No.
Trooper Smith, at a distance of 1200’, what is the
width of the LIDAR beam?
Do you hit what you aim at with 100% accuracy?
With a LIDAR? Yes.
Can you be absolutely 100% certain you hit
my vehicle at 1200’?
Yes.
Could you hit a target 1200’ away with your service
revolver?
I don’t have a service revolver, I have a (insert some
weapon description here) and it isn’t rated for that kind of range.
To make sure I understand correctly, you
would have to look through this unmagnified scope, point it at a vehicle 4
football fields away, aim at the front of a vehicle moving at highway speeds,
keep the gun trained on the exact spot on the vehicle and pull the trigger
without moving the gun off the target spot a until you have obtained a speed reading?
Yes.
Is there any way to measure the speed of the
vehicle continuously or is it always near instantaneous?
LIDAR provides an instant speed measurement.
So there is no way to measure the continuous speed of a
vehicle with the LIDAR unit over a distance of say a ¼ mile?
No.
So you did not measure the speed of my vehicle
continuously for a distance of a quarter mile?
No.
Can you attest that the information written on citation M5218384 is true
and accurate?
When you wrote the citation, how did you obtain my
address that you put on the citation?
From your license.
You said you were a police officer in MA for 15
years?
Yes.
Then you are aware that the MA Registry of MV
issues change of address stickers that a MA licensed driver is required to
place on the back of their license when they move?
Yes.
Your honor, I’d like to show officer Smith a
copy of my license. (My license had
expired 3 months after I received the citation and I had been issued a new
license, I could not find my old license).
What is on the back of my license?
At the time you wrote me the citation, did you look
at the back of my license for a change of address sticker?
I don’t know.
Why not?
I don’t know.
"Trooper,
are you familiar with MGL, Chapter 90C, section 2?"
No.
ME:
"Defense offers an excerpt from aforementioned law. This states that the
violator shall be requested to sign the citation, acknowledging receipt."
(This is not a defense on its own, but it doesn't help the Trooper)
Did you ask me to sign the citation?
No, but it is State Police policy to....
Objection, Your Honor. Non-responsive
after No.
Sustained.
Did you ask me to sign the citation?
No.
No futher questions your honor.
Trooper, you may step down. Would you like to present any defense?
NO
AFFIRMATIVE DEFENSE YOUR HONOR
Is there anything else before I make a decision?
Motion to dismiss:
Your honor, I would like to motion for finding
NOT RESPONSIBLE on the grounds that the people’s case is insufficient as it
stands now in that
I find you responsible. Would you like to say anything?
Mitigating
circumstances:
Your honor, before sentencing I
would like to …
This is a speeding ticket, there is no sentencing. (said with a
chuckle)
… explain that I have the best insurance rating
possible and I haven’t had a speeding ticket in 6 or 7 years. I hope you’ll take these into consideration.
Very good. I fine you $100.
Arggh. Same thing the girl before me got with her ‘I
don’t think it was me’ speech.
I leave the court room and the cop is waiting for me. He is looking extremely angry and starts in on
how I perjured myself and how I’m lucky the judge didn’t ask him about my
driving record. I ask what he’s talking
about and he shows me my record that I’m holding and points to a speeding
ticket from 2006. Right next to it it says “NR” (not responsible). I point that out and he says “that doesn’t
matter, you perjured yourself and things could have been much worse”. I say something like, “I’m sorry, I disagree”
and walk out of the building. I’m not
sure if he’s correct or not. I certainly
didn’t intend to misrepresent myself, I guess my phrasing
to the judge could have been better. I
was also surprised that tickets I’ve been found not responsible for still show
up on my record and that they can be used against me (or at least the cop
thinks so).
He follows me out, then I figured I’d see if I could
pay the fine while I was at the court. I
go to the clerk and she tells me that I have to pay the DMV. I go out to my car and there’s the cop
sitting there, I assume waiting for me to find out what car I’m driving. As I drive by him he starts to follow me,
blasting me with his RADAR. I shut off
my V1 and I’m wondering what’s next, when I take a right out of the court and
he boots it and takes a left (a shorter way to the main road). I follow my GPS to take back roads back to
the main road and as soon as I hit it, I’m blasted with Ka RADAR but I don’t
see anyone. I then take the long way
home, just in case.
Overall I saved myself next to nothing, I originally had a $220 fine, it was reduced to $100 but between two 70 miles round trips to court and the $20 appeal fee, I didn’t save much. I was however proud of myself for standing toe to toe with a state trooper and am glad I did it. Hopefully all my preparation can help the next person.