Few people have the legal knowledge to raise picky technical objections. Fortunately, in most traffic trials, you don't need it. In fact, raising lots of objections in traffic court can quickly become counterproductive, because it's more likely to raise the hackles of the judge than to help you win your case.
Objecting to testimony is a tactical decision. Always ask yourself: "How likely am I to succeed?" As part of doing this, you should also consider how damaging the testimony is to your case. For example, if the officer is providing background detail about the weather or road conditions that has little to do with whether you committed a particular violation, you gain little by objecting, even if your objection is technically correct.
But a few well-placed objections can serve a major purpose. That's because the testifying police officer probably expects you to be unprepared and nervous, and he or she is likely to be overconfident. (After all, the officer has probably testified many times before.) If you are able to surprise the officer with even a few valid objections, you may well throw the officer off balance and weaken his or her testimony.
Here are three valid tactical objections that might help you disconcert the officer.
Officer Reading From Notes
Immediately after issuing your citation, most police officers will note what happened on the back of their copy. They do this so that later, if there is a trial, they can remember what happened. But in most states it is technically improper for the officer to simply read directly from notes (or from any other document) while testifying in court, unless the officer first follows several important procedural steps (lawyers call this "laying a proper foundation.") The officer must first testify that he or she:
- can't remember all the details of the violation
- recorded them shortly after issuing the citation, and
- needs to refer to them to refresh his or her memory.
Because most people who get tickets never object to note reading, most officers don't know how to follow these technical procedural steps (called "laying the proper evidentiary foundation"). This gives you a golden opportunity to toss a stick into the cop's spokes by saying: "Objection, Your Honor. The witness is clearly reading from notes, which are hearsay and should be excluded from the trial." In all likelihood the judge will simply tell the officer to lay the proper foundation as outlined above and, if successful (sometimes with coaching from the judge), proceed, using the notes.
In addition to asking the officer to follow proper procedures to admit this type of hearsay into evidence, the judge should direct the officer to let you read the notes. (You may have to politely ask.) Sit down and carefully do just that. But when you finish, don't hand them back if the officer still hasn't created the proper legal foundation for using them along the lines set out above. Then when the judge asks you to return them, politely renew your "hearsay" objection and ask that the officer testify based on his or her "independent recollection"—that is, without looking at notes. Even if the judge rules that the officer can use the notes, you have won two important things:
- You have gotten to read the officer's notes, if you had been denied that right before trial.
- You can claim in your closing argument that the officer has a poor memory for events and can't really contradict any evidence you present, which should, of course, raise a reasonable doubt as to your guilt.
Object if the judge "coaches" the officer. Sometimes a judge will try to help a befuddled officer lay a proper foundation for getting around the hearsay rule and using the notes. If so, you may want to politely renew your objection by saying, "Objection, Your Honor. With all due respect, it appears as though the court is helping the officer testify by asking leading questions. I again ask the court to simply instruct the witness to testify from memory or lay a proper foundation for the use of this written material."
At this point, the judge will either allow your objection (require that the officer lay a proper foundation or not use his or her notes) or overrule it. Either way, you have made your point, and it's time to move on.
Assuming Facts Not in Evidence
Another common improper ploy that officers use while testifying is to say something like: "I saw the defendant's vehicle go through the stop sign [or commit other dastardly acts]...." Here the officer is basically tying you (the "defendant") to what he or she observed by looking at a vehicle, which may or may not have been yours. This type of objection would be important if your defense rested on the officer identifying the wrong vehicle.
The proper way for the officer to testify is to say that he or she observed "a vehicle" (rather than "the defendant's vehicle") commit a violation, and that he or she then pulled over that vehicle and identified you as the driver, usually by asking you to produce your driver's license. When, however, you allow the officer to shortcut the process by testifying that he or she observed "the defendant's" vehicle, you've allowed the officer to improperly establish that you were the driver of the wayward vehicle.
Making an objection in this situation is sensible only if there is some reasonable question as to whether the vehicle the officer initially saw was really the one you were driving.
In objecting to the officer's "assuming facts not in evidence" or "lack of personal knowledge," you say something like this:
"Objection, Your Honor. This testimony assumes facts the officer hasn't testified to. There is no evidence before this court as to who owned or was driving the vehicle that this officer claims to have seen. The officer could not possibly have personal knowledge of the identity of the owner of a vehicle she merely sees traveling on the road. I move that her testimony not be considered." (Lawyers would ask that it be "stricken," but you may be better off sticking to plain English.)
Here the judge will probably do one of two things: "Sustain" (grant) your objection and then "strike" (disregard) the officer's testimony (by often saying something like, "So stricken. Continue, Officer Jones"). Or the judge will ask the officer to "rephrase" the testimony (sometimes coaching the officer to say that he or she first saw the offending vehicle and then identified you).
In most states when an officer, or any witness, testifies to something he or she didn't personally observe, the law calls this "hearsay." (Reading from notes is one type of hearsay.) Such testimony is generally not allowed, provided you make an objection. If a prosecutor's question calls for hearsay ("And what did Officer Smith tell you, Officer Jones?"), you should quickly interject with, "Objection, Your Honor, the question calls for hearsay." If the officer blurts out hearsay to a proper question before you have a chance to register your objection (Q: "How fast was the defendant driving?" A: "Officer Smith told me it was 75 miles an hour."), your objection should be, "Objection, Your Honor, that's hearsay, which I move be eliminated (stricken) from the record."
Unfortunately, there are a number of exceptions to the hearsay rule, which allow certain types of hearsay to be considered by a judge or jury. Probably the most common in traffic court allows an officer to testify to any statements you made, which would tend to prove your guilt. (Q: "Do you know why I stopped you?" A: "Because I was going 80.")
Although it doesn't make sense to engage in an in-depth study of the rules of evidence just to go to traffic court, it can be a good idea to be prepared to object to two of the most common situations in which hearsay crops up:
- When an accident occurs. Here you should object if the officer—who probably didn't witness the accident—attempts to testify to what another person involved in the accident, or an eyewitness, told him. Again, the rule is the officer can testify only to what he or she saw, not what the officer heard from other people.
- For speeding citations involving a plane. You'll definitely want to object if the officer in the patrol car attempts to testify as to what an officer in an aircraft said your speed was. The ground officer must testify as to what he or she did and saw, not what the airplane officer told the ground officer.
EXAMPLE: Your vehicle collides with another at an intersection controlled by stop signs at all four entrances. You tell the officer you entered the intersection first, and that the other driver ignored the stop sign. But based on the statements of the other driver and a bystander, the officer concludes you were at fault for failing to yield to the vehicle to your right. You contest the ticket and go to trial. In court, the officer appears, but neither the other driver nor the bystander is present. When the officer testifies what the driver and bystander said about the accident, you should immediately say, "Objection, Your Honor, that's hearsay. It should not be considered." The judge should agree with your objection by saying, "sustained," which means the testimony is disallowed. Of course, a prosecutor can subpoena the people who witnessed the accident, allowing them to testify directly. But busy prosecutors often neglect to do this for traffic court cases, or the witnesses don't appear.