Cross-Examining the Police in Traffic Court
Preparation is the key to successfully questioning (cross-examining) the officer—with an eye toward raising a reasonable doubt as to your guilt. You can ask almost anything you want, so long as the answer you're seeking is in some way relevant to your effort to prove you didn't commit a particular element of the violation or to some other valid defense. Develop your cross-examination step by step, beginning with the least important background questions and ending with the ones that go to the heart of your defense.
Don't go fishing. If you don't have a specific reason to ask a particular question, don't ask it. Unfocused questions rarely result in answers that will help your case, and they commonly give the officer a chance to repeat damaging facts likely to convict you. Also, be sure your questions do not include an admission of guilt, such as, "Where were you when I ran the stop sign?" Instead, they should always be non-committal, such as, "Where were you when you claim I ran the stop sign?"
Below are the types of questions you'll want to ask in trials involving common traffic violations. If your situation is not covered, use what you learn here to develop a set of your own questions designed to show how the officer could have been mistaken in his or her observations.
Make a double-spaced list of questions you intend to use, and take it with you to trial. Then, depending on the officer's testimony earlier in your trial, pencil in necessary additions and changes. But remember, even after you ask a question, you'll want to retain as much mental flexibility as possible. That's because your next question should often be keyed to the officer's response. For example, if the officer's answer is evasive, be prepared to bear down with more specific questions until you either get the answer you want or force the officer to lie.
The best way to cross-examine is to ask specific—not open-ended—questions. For example, avoid questions such as, "What happened then?" or "Why did you stop me, anyway?" The officer could seriously tarnish your defense by replying, "Because you broke the law." Far better to ask questions such as, "Isn't it true that there was a large hedge between your location and mine?" and "Isn't it true you stopped me because of a radio report from an aircraft, and you didn't determine my car's speed yourself?"
Your goal in cross-examination is to show the judge or jury:
- The officer's powers of observation were not perfect.
- One or more legal elements of the particular offense are missing. (See How to Research Traffic Laws for more on elements of the offense.)
- The existence of a defense, such as mistake of fact, where you didn't know the stop sign was there until too late because the sign was obscured by trees.
- The officer was doing several things at once.
- The officer may have lost sight of your car between the time he or she observed the offense and the time he or she pulled you over.
Of course, you may occasionally get an unexpected answer. If you do, you'll have to rely on your broad understanding of the facts to decide whether to ask more detailed questions or quickly switch to the next line of questions.
Never argue with the officer. It is almost always a mistake to adopt an antagonistic stance toward the officer. And it never makes sense to try to argue with the officer. Even if the cop answers a question untruthfully, or gives a ridiculous answer, it's your job to try to expose the fabrication by politely asking more direct questions, not by saying, "That's just not true" or "How could you tell such a whopper?"
Your Question: "Officer, how far were you from my vehicle when you initially took your radar reading?"
Officer's Answer: "500 feet."
Your Bad Response: "Officer, you know darn well that the radar beam width at that distance can't differentiate between vehicles in adjacent lanes. This whole deal is a sham." (This is an argument, and isn't allowed during the cross-examination phase.)
Your Good Response: (in the form of a second question): "Officer, you previously testified that your radar unit has a beam width of six degrees. Isn't it true that at 500 feet from your radar unit this means the beam will be over 100 feet across?"
Your Good Follow Up: "On the road where I was ticketed, aren't the individual lanes much narrower than 50 feet?"
Coping With an Officer's Nonresponsive Answer
If you succeed in asking the officer a good, pointed question—one to which a truthful answer might prove damaging to the prosecution—there is a good chance the officer will try to avoid answering by either changing the subject or saying he or she can't remember. This is where you need to bear down by asking more specific questions—if the officer is truly putting roadblocks in your way, ask the judge to order the officer to answer your question.
Where and How to Cross-Examine
Courts differ somewhat as to how you are expected to conduct your cross-examination, especially in traffic cases. If there is a lectern podium in the courtroom, you may be asked to pose your questions from there. Or you may be expected to ask them from your place at the counsel table where you have been sitting. It makes little difference as long as you stand up (the best way to keep you on your toes). But never walk up to where the officer is sitting unless you want to ask him or her to refer to a diagram, chart, or notes. If so, some judges will expect you to first ask, "Your Honor, may I approach the witness?"
EXAMPLE: You are challenging a motorcycle officer's ability to see what happened by attempting to show that because he was not wearing any goggles or other eye protection while "pacing" your vehicle at a high rate of speed, the wind blowing into his unprotected eyes obscured his vision. Later you'll make the point in final argument that he may have lost sight of the vehicle committing the offense, before pulling over your similar-looking car.
Your Question: "Isn't it true, officer, that you were not wearing any eye protection while you were riding your motorcycle on the day in question?"
The Officer's Nonresponsive Answer: "Well, I could see very well, and the windshield on my motorcycle...."
At This Point, Interrupt and Say: "Objection, Your Honor; Officer Growlski's answer is not responsive to my question. I ask that the witness be instructed to answer the question I asked."
Another frequent annoyance occurs when, after an officer answers your question, the officer starts to give an unrelated speech about how bad your driving was. This can be unnerving, and damaging to your case. Fortunately, it is also highly improper. You may say, "Your Honor, I ask the court to instruct the witness to confine her answers to my questions."
Learn more about going to court. For free tips about taking your case to court without a lawyer, go to the " Representing Yourself in Court" section under "Free Legal Information," at www .nolo.com. For in-depth information, also read Represent Yourself in Court: How to Prepare & Try a Winning Case, by Paul Bergman and Sara Berman (Nolo).
Testing the Officer's Power of Observation
The basis for nearly every traffic prosecution lies in the officer's perceptions. Put bluntly, if you can establish both that the officer can't see more than 100 feet and that your vehicle was 200 feet from where the officer was sitting when the "violation" occurred, you should win without breaking a sweat. But it's not just the officer's hearing or eyesight that is an issue. Because the officer is probably testifying many months after ticketing you (and has likely handed out hundreds of tickets in the intervening time), his or her memory of what happened—or lack thereof—can often be a big issue at trial. The more you can establish that the officer doesn't remember where, why, and how you were stopped, the more doubt you raise as to the accuracy of the officer's testimony, and the more likely it is that the judge or jury will find a reasonable doubt as to your guilt.
Following is a list of some of the types of general questions you might want to ask in order to test the officer's knowledge of the location and conditions where the officer observed you. Review these sample questions before trial, and leave out those that would be irrelevant in your case. Also, be prepared to leave out any questions that the officer answered in her initial testimony.
Keep it interesting or you'll put the judge to sleep. Your questions should always be designed to quickly get at key issues. If you seem to be getting nowhere with a particular line of questioning, move on to better questions before the judge or jurors nod off.
Your first questions should often be designed to get the officer to admit to doing a number of other things besides observing you (starting the patrol car, driving the car, talking on the radio, and so on). The more tasks the cop admits to performing, the more doubt you may be able to cast in your final argument as to how clearly the officer was able to see what you were doing.
- "Where were you located when you first saw my vehicle?"
- "Where was my vehicle when you first saw it?"
- "Was your car (or motorcycle) parked or moving at the time?"
- "Was your engine idling, or was it off?" (If idling, you can later argue that the officer was already intent on stopping someone regardless of whether he or she saw a violation or not.)
If the engine was off:
- "What did you do to start your vehicle?"
- "Did you turn on your lights?"
- "Did you use your two-way radio?" (These questions are aimed at showing the police officer was too busy doing other things to watch you for more than a second before deciding you were speeding.)
- "Did you start your engine just before you saw the alleged violation, or while it was occurring?" (If just before, you can argue in your closing statement that the officer decided to stop you before seeing any violation. If during, the officer might have been too busy starting the engine to observe things very well.)
- "In which lane were you traveling?"
- "In which direction were you going?"
- "How fast were you driving?" (Leave this one out for speeding violations. You don't want the cop to say he or she had to go 90 mph to catch you.)
- "Did you have a clear view of the traffic on the road when you claim you observed the violation?"
- "Was there any traffic on the road other than your vehicle and mine?"
If other traffic: (Your goal here is to ask questions regarding the number and types of other vehicles on the road and their movements. The less the officer remembers, the better your later argument will be that the officer can't remember much of what happened that day. On the other hand, if the officer describes other vehicles in great detail, you may be able to later claim that the officer may not have observed your car accurately, because he or she was so busy watching everything else.)
- "Could you describe the vehicles in front of your vehicle?"
- "Could you describe the vehicles on either side of you?"
- "How fast was the flow of traffic?"
If slower than your vehicle, ask:
- "Did you see my vehicle passing any others?"
Use the cop's answers to frame further questions. Here is an example of how you should use the cop's answers to frame subsequent questions. If the officer says you passed other vehicles, ask for specifics (type of vehicle, color, make). The officer probably won't remember. If the officer says other traffic was slower than you, but also has said you weren't passing other vehicles, that is contradictory, and you'll want to point this out in your closing argument. If the officer claims to have been traveling at the same speed as or faster than your vehicle, your over-the-limit (but under-65) speed might have been safe, and therefore legal in "presumed" speed law states. Follow up with questions on this point, such as those listed below. If the officer says there was no other traffic, again, your over-the-limit speed might be considered safe under the circumstances in presumed speed law states. (See Fight Your Speeding Ticket: What is the Law?.)
If you're charged with violating a presumed speed limit or, in an absolute speed limit state, driving under the limit but too fast for conditions, you can ask:
- "Do you consider yourself to have fairly well-developed powers of observation and memory for details concerning weather and road conditions?"
Then, ask the officer about every possible detail and hazard on the road, leaving out all hazards that were really there. This way the officer's answers will make it seem like the roadway was pretty safe, or that he or she can't remember all the details. Road conditions you'll want to ask about can include:
- Highway width. "Officer, isn't it true that there were two lanes in each direction?"
- Divider strips or islands. "Isn't it also true that there were divider islands present, so as to separate opposite directions of traffic? Isn't it true that this island minimizes the possibility of a collision with traffic in the opposite direction?"
- Sharp curves. "Isn't it true there were no sharp curves over the area where you say you determined my speed?"
- Dips or hills. "Isn't it true there were no dips or hills over the area where you say you determined my speed?"
- Railroad crossings. "There were no railroad crossings either, were there?"
- Road repairs in progress. "There were no road repairs in progress, were there?"
- Obstructions on the road. "There weren't any other obstructions in the road, were there?"
- Soft shoulders.
- Spilled liquids.
- Pedestrians, bicyclists, or animals in the road. "There were no pedestrians present, were there?" (If the officer answers "yes," ask him or her to describe where they were and what they looked like. If it's not in his or her notes, the officer likely won't recall.)
If the officer repeatedly says he or she can't remember. The more the officer says he can't remember, the better, since you can later use that poor memory to cast doubt on the accuracy of his or her testimony about your violation when you make your final argument. In this connection it is often a good idea to ask questions you know the officer won't be able to answer. The best way to prepare to do this is to look at the officer's notes beforehand. (See Getting Police Evidence to Fight Tickets on "discovery.")
Cross-Examination Questions for Specific Violations
The remainder of your cross-examination of the officer should be directed at undermining his or her testimony on the specific elements of the offense you are charged with, or getting the officer to admit circumstances justifying your violation.
It follows that these cross-examination questions depend greatly on the violation charged. For example, in radar speeding cases, you might want to bring out the officer's lack of familiarity with the radar unit. But where you were cited for speeding after an officer paced your vehicle, it would make no sense to make this inquiry.
Speed Violations in General
The following questions deal with how the officer measured your speed. (See Fight Your Speeding Ticket: Determining Your Speed for more on measuring speeds.) The officer will undoubtedly testify as to the method used. It will then be up to you to cast doubt on the accuracy of the officer's claims through cross-examination.
Visual Speed Estimation
If the officer estimated your speed only through visual observation, without pacing your vehicle using radar, laser, or VASCAR, ask questions like these:
- "Over what distance did you see my vehicle travel?" (If the officer says it was short—or you can introduce evidence such as the location of a hill, curve, or traffic lights proving it was short—you can later argue that the officer couldn't have arrived at an accurate speed estimate.)
- "Did my speed change after you observed me?" (If the officer says you slowed down after you apparently saw the police car, you can later argue that the original high estimate was good only over a tiny distance and, therefore, inherently unreliable. If the officer says your speed suddenly went up or down, ask him or her to explain exactly where. Few officers have that good a memory, a fact you may be able to use in your final argument to cast doubt on the accuracy of the officer's other observations.
- "Was my vehicle traveling toward you, away from you, or across your line of vision?" (If accurate, you can say in closing argument that it is more difficult for the officer to estimate the speed of vehicles moving in a more or less direct line toward or away from him or her than if vehicles are traveling across the officer's field of vision. Of course, before you cross-examine on this issue, you should introduce evidence on this point during the presentation of your case.)
- "Have you ever participated in controlled tests where you were asked to estimate vehicle speeds?" (Most officers will say no—a point you can bring up in your closing argument. If the officer claims to have participated in such tests, ask whether he or she always guessed the exact speed correctly. Answering "yes" must be a lie—no one is that good; answering "no" opens the door for you to later point out that the officer admitted how difficult it is to estimate correctly.)
Speed Estimated by Pacing Your Car
If the officer's estimate of your speed was based on looking at his or her own speedometer while following or "pacing" you, the following questions are usually helpful. (Also seeFight Your Speeding Ticket: Determining Your Speed, where we discuss possible defenses to tickets based on pacing.)
- "Over what distance did you follow my vehicle at a steady rate of speed?" (The shorter the distance, the better your argument that the officer made an inaccurate reading.)
- "Was the distance between your car and mine always constant?" (Saying "yes" is obviously incorrect if the officer had to close in on you to pull you over. What the officer wants to say is that the distance was the same over the entire time you were being paced, at which point the officer sped up to stop you.)
If the officer seems to deny that at some point he or she sped up, follow up with questions like these:
- "Did you observe your speedometer while you were following me?"
- "How many times did you observe it?"
If the officer claims to have been watching it almost constantly, follow up with questions like these:"When pacing at a constant speed, is it important that you watch the subject vehicle continuously?"
If the officer says "no," you can follow up with a question like this:
- "If you don't watch a vehicle continuously during pacing, isn't it possible to lose track of the car you are pacing and focus on a similar-looking vehicle?" (If the officer continues to deny the need to look at the vehicle continuously, move on and attack the officer's methods in your closing statement. See Fight Your Speeding Ticket: Determining Your Speed on "pacing" for more on how pacing works.)
- "Was there other traffic?" (Ask only if there was.)
- "Which lanes were the other vehicles in?"
- "Can you describe any of the other vehicles?"
- "Were you paying attention to the other traffic in order to drive safely?"
- "How often did you observe my vehicle?"
If the officer testifies to have been watching the speedometer carefully and testifies in detail to other traffic on the road (the officer may do this to try to impress the judge), follow up with:
- "So you were watching my vehicle, other traffic, and your speedometer all at the same time?" (If the officer says "no," he or she was mostly watching your vehicle, ask, "And you were watching other traffic too, correct?" Then, during your closing argument, you can argue that the officer was mostly watching your car and others, without much time to glance down at the speedometer.)
- "How far behind my vehicle were you while you were pacing it?
If the officer was pacing from more than a few hundred feet back, ask:
- "Do you agree that the ability to pace depends on good depth perception, so that you can follow at a constant distance?"
- "Do you also agree that the farther away an object is, the more difficult it is to pace it?" (If the officer says "no," ask which is more accurate—a pace at 100 feet, or a mile behind.)
- "Have you recently participated in controlled tests where you paced a vehicle a known speed from (whatever distance the officer claims to have paced you)?" (The answer will almost always be "no.")
If at night:
- "Officer, you paced my vehicle at night [or dusk], correct?"
- "Would you agree it's harder to keep a constant distance, in order to conduct an accurate pace, at night than in the daytime?"
The officer should agree. If not, continue with questions like this:
- "Isn't it harder to accurately pace at night when you can see only two taillights, as opposed to driving in the day when you can see the whole car body?"
In attacking the accuracy of the officer's speedometer, you can ask:
- "How long before you cited me was the speedometer in your patrol car (or motorcycle) last calibrated?" (If the officer tries to simply say, "it was accurate," that's a bluff, and you'll want to ask her to please answer your question. If a speedometer hasn't been calibrated recently, this is definitely a fact you'll want to use as part of your final argument; seeFight Your Speeding Ticket: Determining Your Speed.)
- "Did you bring a record of the most recent speedometer calibration with you today?" (The answer will almost always be"no.")
- "Are you aware that speedometer accuracy is affected by tire circumference?" (The officer will probably say "yes.")
- "Are you also aware that tire circumference is affected by tire pressure and wear?" (Again, the officer will probably agree.)
- "Then isn't it fair to say that speedometer accuracy is affected by tire pressure and wear?" (The officer may try to hem and haw, but should eventually concede the point if you repeat the question.)
If the officer just doesn't seem to get it, ask this next question:
- "If you had worn or low pressure tires on your car, the odometer would erroneously read high, correct?"
- "Were your tires' pressures checked when your speedometer was calibrated?" (Probably not.)
- "Were they checked on the day you cited me?" (Probably not.)
- "Are you aware that a tire's air pressure depends on its temperature?"
- "Have the tires on your patrol car been rotated, or have any of them been changed since the last speedometer calibration?" (See Fight Your Speeding Ticket: Determining Your Speed for more on tire wear and pressure problems.)
Speed Estimated From Aircraft
Airplane tickets and your possible defenses to them are discussed in Fight Your Speeding Ticket: Determining Your Speed.
As discussed in more detail in Fight Your Speeding Ticket: Determining Your Speed, there are two ways for the officer to determine your speed from an aircraft:
- By timing the passage of the vehicle between two markers on the roadway, or
- By using ground markers and a stopwatch to determine how fast the aircraft is going and then using the aircraft to "pace" the vehicle below.
Depending on which method is used, your cross-examination should normally attempt to cast doubt on:
- The accuracy of the timing method the aircraft officer used to time the passage of your vehicle—or the aircraft—across two highway markings. (SeeFight Your Speeding Ticket: Determining Your Speed.)
- The ground officer's knowledge of the distance between highway markings. Remember, if this is based on what the ground officer was told by the airplane officer, it is "hearsay" evidence to which you should object.
- The accurate identification of your vehicle by the aircraft officer.
- The ground officer's proper identification of your vehicle from the aircraft officer's description.
- The accuracy of the timing of passage of either the vehicle (method 1, above) or the aircraft (method 2, above) across the two highway markings.
These questions for the aircraft officer apply regardless of which method was used to measure your speed:
- "Officer Aircop, you used a stopwatch or other timing device to time the passage of the aircraft or vehicle between the two highway markings, correct?"
- "Isn't it true that you timed the passage of the aircraft/vehicle [depending on which method was used] over a fixed distance?" (The answer will always be "yes.")
- "Did you actually measure the distance between the highway markings on the ground?" (The answer will be "no," at which point you should ask the judge to "strike" the officer's previous testimony. Simply say, "Your Honor, I move to strike the officer's testimony as to the speed of the vehicle, since it was based on a distance divided by time that was not within this officer's personal knowledge." If the judge strikes the testimony, you have won your case, because there is no other evidence of your speeding. If the judge refuses, you must, regretfully, move on.
- "Did you watch my vehicle that whole time without looking away?"
If the officer says "yes," ask:
- "Did you have a stopwatch and a log to read my speed?"
If the officer answers "yes," ask:
- "Didn't you look down at them and write log entries?"
If "yes," ask: (The point you want to make in the next two questions is that the officer is doing many things, including looking at a stopwatch and log, and watching many cars, so that the officer can easily lose sight of a particular car.)
- "Did you report other vehicles for speeding at or near that time?"
- "How many cars were you monitoring?"
- "Over what distance did you time my vehicle?" If the officer claims to have timed your vehicle over a short distance, like 0.1 or 0.2 mile, ask:
- "Officer Aircop, could you state again the time it took my vehicle to travel between the two markings?" (Be prepared to use the formula in the sidebar "Converting Miles Per Hour to Feet Per Second" (in Fight Your Speeding Ticket: Determining Your Speed) to calculate the speed you would have been going, based on the answer to this question. For example, if the officer says the two markings were an eighth of a mile apart (one-eighth of 5,280 feet, or 660 feet), the time to cross the marks would be 660 feet divided by 110 feet per second, or 6.0 seconds.)
- "If because of normal reaction time, you didn't start the stopwatch until half a second after my vehicle passed over the first mark, the true time my car passed between the two points would have been [example—6.5] seconds, correct? Incidentally, I have a calculator if you would like to check the calculation."
- "And at [example—one-eighth of a mile or 660 feet] and [example—6.5] seconds, the true speed would have been [example—660 feet/6.5 seconds = 102 feet per second or 69] mph, correct?"
Ask this question only where the officer determined the aircraft speed by using the markings, then "paced" your vehicle with the aircraft.
Use the officer's notes before trial to help you do the math. If you have been able to obtain the officer's notes before you go to trial (see Getting Police Evidence to Fight Tickets), you'll know the distance between the road markings and can do the math in advance. Simply do the calculation: speed (feet per second) = distance (feet)/time (seconds), then divide that result (in feet per second) by 1.47 to calculate what the officer should say the elapsed time was. Then, see if you can use a slightly longer time based on the officer's likely reaction time to compute a substantially slower speed.
- "And isn't it true that you determined your aircraft's speed this way before you finally determined my vehicle's speed?"
- "How much time passed between the time you calibrated the speed of the aircraft and the time you paced my vehicle?"
- "If a headwind had slowed the aircraft after you timed its passage between the highway markings, wouldn't you have had to again fly between the markers to determine your slower speed relative to the ground?"
- "Did you do that?"
- "Are you certain the wind speed did not change during this time?"
- "To determine the aircraft speed, what reference point on the aircraft did you use to check the aircraft passage over each line?" (Usually it will be a wing or wing strut.)
- "How far was that object from you?" (Usually a few feet.)
- "If you had moved your head forward or backward while observing your reference point passing the first or second marker, the elapsed time on your stopwatch would be incorrect, isn't that so?" (If the officer denies this, ask him or her to hold up a pencil at arm's length against a distant object in the courtroom about 20 to 30 feet away. Then ask the officer to move his or her head one foot forward or back while holding the pen steady. Finally, ask if the pen doesn't seem to line up a few feet off. The shorter the distance between the two reference points on the highway, the more significant this type of error is—over long distances it won't affect the reading of your speed enough to matter.)
Additional questions to ask the air officer, which can be used with either speed measuring method:
- "When you identified what you say was my vehicle, you didn't read a license plate, did you?" (This can't be done from 500 feet in the air.)
- "You didn't radio down the make or model of the vehicle did you?" (Only ask this if the air officer's log doesn't mention this. It often won't, since they often can't tell this from 500 feet up either.)
If there was other traffic:
- "Were there other vehicles on the highway?"
If the officer answers "yes," ask:
- "Could you describe the other vehicles by make or color?" (If the officer can't describe the make and model of your vehicle or other vehicles, you can question the officer's memory in your final argument and raise the possibility that he or she stopped the wrong one.)
- "Did you report other vehicles for speeding, along with mine?" (If the officer answers "yes," you can argue that the officer's attention was divided among several vehicles, opening up the possibility that the officer was confused and mixed up your safe speed with another car's speeding).
Questions for the Ground Officer (Can Be Used With Either Speed Measuring Method):
Ask these questions only if Officer Aircop says he or she radioed Officer Groundcop.
- "Officer Groundcop, isn't it true you were first alerted to my vehicle only because of the radio report from Officer Aircop?"
If the answer is "yes," and the ground officer in the patrol car didn't testify to pacing you after hearing the report from the air officer, ask:
- "So, then, your knowledge of the vehicle's speed was based solely on the radio report, correct?" (If the officer says "yes," you should ask the judge to "strike" that testimony because it is based on "hearsay," what the air patrol officer said through the radio. Even if the judge denies your request, you should argue in your closing statement that the officer who actually ticketed you was acting on secondhand information, which is inherently unreliable.)
Speed Estimated by VASCAR
VASCAR tickets and your possible defense against them are discussed in Fight Your Speeding Ticket: Determining Your Speed.
If the officer used VASCAR to determine your speed, your goal in asking questions is to show:
- The officer may have had reaction time error after your car passed the first point, clocking too short a time and thus too high a speed.
- The officer may have had difficulty seeing the stop or start point, thereby mistiming when you passed one or both.
- There may have been an odometer error due to low tire pressure or tire tread wear, which can produce a false reading. (The VASCAR unit is calibrated to the vehicle's odometer.)
- In the moving mode, the officer might have operated the unit incorrectly when faced with the necessity of pressing the buttons four different times while monitoring traffic. (Again, see Fight Your Speeding Ticket: Determining Your Speed for an explanation of how an officer uses VASCAR in a moving vehicle.)
All VASCAR Modes
Ask these questions to cast doubt on whether the officer pushed the buttons at precisely the right times.
- "How far apart were the two points between which you measured my vehicle's passage?"
- "How many seconds did you clock my vehicle passing between the two points?" (If the two points were fewer than 500 feet apart, the time should be 5 to 10 seconds, depending on the speed and exact distance, and a reaction time error can be significant.)
If the officer's answer is in this range, ask the next questions. If the time is 10 seconds or longer, skip to question 11.
- "Could the length of time it took you to press the time or distance switches have been a factor in measuring my speed?" (The officer will probably say "no," explaining that he or she didn't react to your car passing points as he or she pressed the switches, but instead correctly anticipated when it passed the markers, thereby getting your speed correct.)
If so, ask:
- "But if, when I passed the first reference point, you hadn't anticipated perfectly but instead reacted after my car passed the point, the time you measured would actually be a little too short, correct?" (The answer should be "yes.")
If the officer won't admit this is true, follow up with:
- "Well, assume that if, when I passed the first point, you reacted and then pushed the ‘time' switch half a second later. Wouldn't my time be erroneously low?" (If the officer finally concedes the point, follow up with:)
- "And this would mean the speed you recorded would be erroneously high, right?"
Run the numbers. Use your calculator to do some quick math. For example, if the distance between the markers was 200 feet and the time the officer measured was 3 seconds, that would work out to 200 feet/3 seconds = 67 feet per second. Divide this by 1.47 to get 45.4 mph. It follows that if the officer reacted half (0.5) a second late, your true time of passage between the reference points was really 3.5 seconds, and your speed 200/3.5 = 57 feet per second. Again, divided by 1.47, your real speed was 38.8 mph. Assuming the speed limit is 40, you can plausibly argue you weren't speeding.
- "Assume you had reacted rather than anticipating, and your reaction time when I passed the first point took half a second. Now you testified that you measured my time between the two points as [example—3.0] seconds. So isn't it true that the true time of passage would have been closer to [example—3.5] seconds?"
- "At [example—200 feet] and [example —3.5] seconds, that's an average speed of [example —57.1] feet per second, correct?" (If the officer says he or she can't do the math without a calculator, offer yours).
- "And you divide feet per second by 1.47 to get miles per hour, correct?" (If the officer admits this, ask the next question. If not, skip to a new line of questions exploring how this number is derived in your final argument.)
- "And 57.1 feet per second, divided by 1.47, works out to 38.9 mph, doesn't it?" (Obviously, this should be adjusted to your situation.)
Here your prime goal is to question the officer's ability to accurately observe when your vehicle passed a distant point.
- "Officer, how far from the two reference points were you located?" (The officer will almost surely say that he or she was closer to one point than to the other.)
If the officer admits to being more than several hundred feet from one of the points but much closer to the other, ask:
- "So, isn't it true that it was easier for you to hit the ‘time' switch when my vehicle passed over the nearer point?"
If the officer refuses to give you a clear answer, follow up with:
- "Is it easier for you to hit the ‘time' switch at the proper second when a car is 50 feet away than when one is half a mile away?" (Assuming that the officer says 50 feet away, ask question 12 again.)
- "Have you recently taken part in controlled tests of your ability to judge when a car has passed over a point hundreds of feet away?"(Most likely not.)
- "Isn't it also true that if you misjudged when my car passed the distant point, that would result in your time measurement being incorrect?"
- "And that, in turn, would mean that the speed your VASCAR device recorded was incorrect, right?"
Quit while you're ahead. If the officer surprises you by conceding a big favorable point, it's often best to quit this line of questions. Later you can refer to the officer's admission as part of your final statement to argue that there is reasonable doubt as to your guilt. If instead you follow up with more questions on the point you've already won, the officer may qualify or withdraw the admission. For example, the officer might say that while the VASCAR speed reading may have been wrong, it would make no real difference since you were going so much faster than the limit.
Moving VASCAR—Officer Coming From the Same Direction
Here you want to focus on the fact the officer must execute four time/distance switch clicks in a short time, something that isn't easy to do.
- "Officer, to use VASCAR while your vehicle is moving, you have to press the ‘time' switch twice, and the ‘distance' switch twice, correct?" (The officer should say "yes.")
- "And that's a total of four operations, correct?"
- "And if you had improperly pressed the ‘distance' switch at exactly the point where your car passed beginning and end points, that would result in an error, correct?"
- "And the same is true with respect to judging my vehicle passing the two points when you had to push the ‘time' switch twice, correct?
- "And if you did these four operations in the wrong order, wouldn't that also result in a major error?
- "And you had to do all four things accurately, over a period of just how many seconds?" (This is a little bit of a trick question. You hope that the officer will refer to the time it took you to pass between two points, rather than the longer time it took to click the time switch twice as you passed the two points, then pause and hit the distance switch as the officer passed over each point.)
If the officer falls into your trap, follow up with any of the applicable questions below.
Moving VASCAR—Officer Coming From the Opposite Direction
The use of VASCAR in these circumstances is particularly tricky. Study Fight Your Speeding Ticket: Determining Your Speed on VASCAR to understand why this is true before setting out to cross-examine the officer. The point is that the big possibility for operator error opens great opportunities for your cross-examination. Here are some questions designed to show the judge how difficult it is for an officer to properly use VASCAR in this way. This will definitely be a point you'll want to hit hard in final argument.
- "Now, you say you saw my car coming from the opposite direction, picked out a reference point, and clicked ‘time,' correct?"
If "yes," ask:
- "Had you had experience using that reference point before?" (Probably not, since the officer picked it quickly because it was near you as he or she was coming from the opposite direction.)
- "And when our cars were opposite, you clicked ‘time' again as you simultaneously clicked ‘distance'?"
- "Did you do this with one hand down, while also looking at my car? Or did you look at the VASCAR machine?"
- "And then you clicked ‘distance' again when you reached the second marker?"
- "Again, did you do this with one hand down, while also looking at my car, or did you look at the VASCAR machine?"
- "Between the time you saw my car pass the reference point from the other direction and the time you passed it, did you take your eyes off that reference point?" (If the officer gets a little confused with all this, it's fine.) If the officer admits to taking his or her eyes off the mark, you may be able to argue in your closing statement that the officer's distance determination could be incorrect because he or she refocused on a wrong reference point after looking away from the first point.
VASCAR—Moving Mode and Stationary Mode—Odometer Used to Measure Distance
- "Now, officer, you measured the distance between the two reference points by clicking your ‘distance' switch twice as you drove between them, correct?"
- "And your VASCAR unit is connected to your car's odometer cable to allow for you to do this?"
- "Then the accuracy of the measured distance, and hence speed, depends on your odometer's accuracy, correct?"
- "If you switched to smaller tires after your odometer was calibrated, there would be more revolutions of the odometer cable for the same distance, and hence an erroneously high distance and speed, correct?"
- "Isn't it true that to be accurate the VASCAR unit's odometer module must be calibrated every so often against a premeasured distance?"
- "When was this VASCAR unit last calibrated in this way?" (If it's been a long time since the VASCAR unit was calibrated for odometer accuracy, you should argue in your closing statement that the "distance" reading, and hence the calculated speed, is suspect.)
- "Isn't it also true that if your tires were very worn, or if your tire pressure was too low, your tire circumference would be slightly smaller?"
- "And that would result in your recording an erroneously high distance and speed, correct?"
- "When did you last check the tire pressure in your vehicle?" (Again, if the officer doesn't know or it's been a considerable time, you can later argue the VASCAR reading may have been wrong.)
Speed Estimated by Radar
If the officer used radar to measure your speed, use some or all of these questions. Your goal is to show:
- The officer doesn't really know how radar works.
- The officer was not careful about maintaining the unit's accuracy.
- The speed the officer measured may not have been your vehicle's.
Ask these questions only if the officer did not show you the radar readout at the time you were stopped.
- "Does your radar unit have a control that allows you to ‘lock in' the targeted vehicle's speed onto the readout?"
- "Did you show your unit's speed to me when you stopped me?" (Assuming the answer is "no," claim in your final argument that because the officer could easily have shown you your speed, there must be some reason he or she chose not to.)
- "Could you please describe briefly how speed-determining radar works?" (If the officer can't do this—or gets it wrong—consider using this admission as part of your final argument.)
- "Isn't it true that delicate and sensitive electronic measurement instruments such as radar units must be calibrated often to make sure they're accurate?"
- "Did you calibrate your unit immediately before and after you measured my claimed speed?"
If "no," use this point in your final argument. If "yes," ask:
- "How exactly did you calibrate the unit?"
If the officer claims to have turned on the unit's "calibrate" switch:
- "You mean, you didn't use a tuning fork?"
- "Doesn't the radar unit's manufacturer recommend calibration with a tuning fork?"
- "Isn't a tuning fork certified as accurate by a testing laboratory a better way to check the unit's accuracy than using the unit's own internal electronics, which may be faulty?"
If the officer used a tuning fork:
- "What was the certified speed for the tuning fork you used?"
If it's much different from the speed the officer claims to have clocked you at—for example, 25 mph, but your car was clocked at 60 mph—follow up with:
- "Isn't it true that checking radar accuracy with a tuning fork at one speed is not a guarantee of accuracy at a different speed?"
- "When was the tuning fork itself last calibrated by an independent testing laboratory?"
- "Do you have a certificate of accuracy for this particular tuning fork?"
No matter what calibration method was used:
- "Has your radar unit ever malfunctioned in any way?"
If the officer says "no," ask:
- "Then it's never been repaired, or taken to the shop, as far as you know?"
If the officer says it hasn't, ask:
- "You mean, not even for routine maintenance?"
- "What's the maximum range, in thousands of feet, of your radar unit?"
- "What is the beam width of your radar unit in degrees?" (Don't settle for an answer in "lanes." As discussed in detail in Fight Your Speeding Ticket: Determining Your Speed, the beam width will get wider the farther the unit is from your vehicle, and you want to emphasize this point. If the officer doesn't know the beam width in degrees, ask how much wider the beam gets for each thousand feet distance from the radar unit. Be prepared to quickly calculate the beam width at the maximum range, so you can follow up with the next question.
- "So then, at the maximum range where you can still determine a target's speed, the width of the beam is about [calculate here] feet, isn't it?"
- "Isn't that much wider than one lane of traffic?"
- "Isn't this wide enough to reflect beams from other nearby vehicles or even a low-flying aircraft or nearby trains?" (Obviously, use this last part only if you were cited near railroad tracks or an airport.)
- "When you aim your radar unit at a nearby object, your unit's antenna will pick up signals reflected from other more distant sources, won't it?" (The officer may say "yes," but that the unit is made to track the strongest reflected signal.)
If so, follow up with:
- "Did you know that a more distant, but larger, vehicle may reflect a stronger signal than a smaller nearby vehicle?"
Ask the next four questions only if it was windy the day when you were cited:
- "Have you ever obtained what turned out to be a false speed reading by incorrectly aiming a radar unit, for example, at another vehicle or a tree blown by the wind?"
- "And if those surfaces are in motion, they can cause a false reading on a radar unit, can't they?"
- "Isn't it true that windblown tree limbs or even leaves can sometimes reflect radar signals to generate a false reading?"
- "Even blowing dust or rain can sometimes do this, can't it?"
- "Do you know what a harmonic frequency is?"
- "Are you aware that harmonic frequencies of nearby radio transmissions, for example from CB sets, can cause false radar readings?"
- "Did you know that electrical interference from nearby power lines or transformers or even high-voltage neon lights can generate false radar readings?"
- "When you estimated my vehicle's speed, were you first observing my vehicle with your eyes or using your radar unit?"
If the officer was looking at your vehicle:
- "So, then, you had already assumed I was exceeding the speed limit before you took a radar reading?"
If the officer was looking at the radar unit:
- "So, you had already formed an opinion of my speed before looking up at my vehicle?"
- "Could a completely untrained person use your radar unit accurately?"(The answer should always be "no.")
- "Could you please describe the training you've had in the use of radar?" (Most officers will try to pretend the salesperson's two-hour pep talk they probably received on how to use a particular radar unit was an intense "seminar.")
- "How long ago were you given this training?"
- "How long did the training last?"
- "Was this training conducted by a salesperson for the radar-device company?"
- "Did you have supervised ‘hands-on' instruction out on the road?"
- "Have you participated in any tests where you used radar to measure a vehicle's speed, then were told the correct speed?" (Almost never; if the officer says "yes," try to get precise details.)
Speed Estimated Using Laser
In your cross-examination of an officer who used a laser gun to estimate your speed, you want to bring out the following points:
- The officer doesn't really know how laser works.
- The laser unit might not have been aimed and used correctly.
- "Officer, how does laser work?" (This is harder to describe than radar, and the officer may not do a good job.)
- "Isn't it true that the laser unit works by measuring distances, using the speed of light and the time it takes a reflected beam to return, between the laser unit and the target vehicle?" (The officer will probably agree that it sounds right.)
- "How many distance measurements does it make in a second?" (The officer probably won't know.)
- "Isn't it true that the laser unit emits three separate light beams? And that each beam hits a different spot on the target vehicle?"
- "And isn't it also true that when you aim the laser unit to get an accurate reading, you must aim it at the same part of the target vehicle during the entire time of the measurement?"
- "Isn't it also true that if, over the measurement period, you first aim it at the passenger area, then move the gun slightly so the beams hit the hood, that at least part of your measurement will take into account the five or so feet difference between those two points?" (If the officer admits this, you can later argue in your closing statement that this caused an error.)
- "Have you read the instruction manual for this unit?"
If "yes," ask:
- "Doesn't it refer to this type of possible error?"
If the cop seems confused, follow up with:
- "Was it possible you made this type of error?"
- "Was there other traffic in my direction?" (Ask only if there was— a point you can make in your testimony if the officer doesn't admit it.)
- "Isn't it also true that if one of the three beams reflected off a vehicle near mine, going at a different speed, and another beam reflected off my vehicle, your laser gun would have produced an incorrect result?"
- "And isn't it possible, if you were, say, a quarter of a mile away, and an adjacent car going in my direction passed me, that one of the three beams might have hit my car, with the others hitting the second car?"
Especially if the officer says this is unlikely, follow up with:
- "But isn't it true that the possibility of this type of error is also mentioned in your instruction manual?"
Speed Measured by a Stationary Radar or Laser, Visually Estimated First
Officers often testify that they visually estimated your speed and then used stationary radar (or a laser) to measure your speed more precisely. If the officer testifies to this, ask the officer the following three questions:
- "How many feet were you from my vehicle when you visually estimated its speed?"
- "How many feet were you from my vehicle when you first took the radar (or laser) reading?"
- "How many seconds elapsed between these two events?"
Using the answers the officer gives you, subtract the distance from Question 2 (feet from the vehicle when radar reading was taken) from the distance in Question 1 (feet from vehicle when speed was estimated), and divide the result by the number of seconds in Question 3 (time elapsed between the two events). The resulting number will give you a speed, in feet per second. If you divide this number by 1.47 (1.5 is close enough), this should give your speed in miles per hour; if that result is less than the speed the officer says you were going, in closing argument you can argue to the judge that by the officer's own testimony, either the officer's visual estimates or the radar/laser reading was faulty.
As Stan Speedo cross-examines Officer Olsen, the officer testifies that: (1) he was 500 feet away when he first visually estimated Stan's speed at 65 mph (in a 50 mph zone), and (2) 300 feet away when he first took a radar reading of 63 mph, and that (3) about 3 seconds elapsed between these two events. So, Officer Olsen is really saying that Stan drove 200 feet (500 feet minus 300 feet) in 3 seconds, or 200 feet / 3 seconds, or 67 feet per second. To convert feet per second to miles per hour, divide by 1.47. So, 67 / 1.47 = 45 miles per hour. Later, in his closing statement, Stan can argue that according to Officer Olsen's testimony and some pretty simple math, he was really doing 45 mph, well within the 50 mph speed limit.
EXAMPLE 2: Francine Fast cross-examines Officer O'Malley, who testifies that: (1) she was 500 feet away when she first visually estimated Francine's speed at 60 mph (in a 50 mph zone), and (2) 200 feet away when she first took a radar reading of 59 mph, and that (3) about 2 seconds elapsed between these two events. She's saying Francine travelled the difference in distance, 300 feet, in 2 seconds, or 150 feet per second, which, divided by 1.47, gives a speed of 102 mph. Later, in her closing statement, Francine can argue that she couldn't have been going 102 mph, so the officer's observations were faulty.
"Presumed" Speed Limit Questions
In preparing your cross-examination questions, start by thinking of the actual road, traffic, and weather conditions when you were cited. Then use this information to edit and fine-tune the following questions. For example, if it was raining or foggy, the less said about the weather, the better. Also, don't ask about traffic conditions if traffic was fairly heavy (unless you believe you can use this information to cast doubt on whether the cop stopped the right car). Similarly, it usually makes sense to ask next about highway conditions if you were ticketed on a two-lane winding, hilly road.
Here are some sample questions.
If the traffic was light:
- "Was there a lot of traffic in my direction?"
- "How many vehicles were there in my lane?"
- "How many were behind me?"
- "How many were in front of me?"
- "What was the average distance between vehicles?"
The point of many of the following questions is to establish, in a presumed speed area, that it was safer to exceed the limit in order to keep up with the flow of traffic around you.
- "Was I ticketed at rush hour?"
- "Was most of the traffic going at about the same speed you say I was going?"
- "Did you see my vehicle pass any others?" (Don't ask if you did pass other vehicles.)
If the officer says "yes," follow up with:
- "Could you describe the vehicles I passed?" (The officer probably can't—a fact you may be able to use later in your final argument to cast doubts on the accuracy of the officer's testimony.)
Then, only if the officer says you weren't passing other cars, ask:
- "So, then, it's true that I was going slower, or at least at the same speed as the other traffic?"
Ask all the following questions that fit in an effort to show that even if you did slightly exceed the speed limit, it was safe to do so.
If there was no rain:
- "Was the road pavement dry?"
If there was no fog or rain:
- "Was the visibility good?"
If it was a clear day:
- "Was the sun shining? Were clouds obscuring it?"
If you were cited at night but visibility was good:
- "Are there street lights along this stretch of road?"
- "Were the lights on?"
If the road had at least two lanes in your direction:
- "How many lanes did the road have in my direction?"
If the road was divided by a median or barrier:
- "Did the road have a divider or barrier down the middle?"
If there were no intersections near where you were cited:
- "Were there any intersections nearby?"
If there were intersections, but all were controlled by stoplights:
- "Were there any uncontrolled intersections nearby?"
If there were no blind curves:
- "Were there any sharp turns in the roadway?"
If the road was flat:
- "Were there any hills obscuring the view from the roadway?"
If there were no pedestrians:
- "How many pedestrians were in the area?"
- "Were any pedestrians crossing the road? Trying to cross?"
Don't forget to make these points in your testimony. If the road, traffic, and weather conditions really were good, the above line of cross-examination questions should help your case. But remember, the best time to convince the judge that you really were driving safely is when you present your testimony along these lines. But if you can get the officer to agree that traffic was light and road conditions were good, you'll certainly want to refer to those statements in your final argument as part of your claim that the officer agreed with your description of conditions.
Running a Stoplight
The defense to this one is usually fairly straightforward. Since it's legal to enter an intersection on a yellow light, the main job of cross-examination is to cast doubt on whether the officer accurately observed that the traffic light was red when the front of your car drove across the "limit line" or cross street.
- "Did you see my vehicle at the time the green light first turned to yellow?" (If the officer says "no," then he or she could have seen you only a few seconds before he or she says you ran the red light, creating at least doubt as to the officer's ability to see something happen so fast.)
- "For how many seconds does the yellow light stay on?"
If the officer doesn't know how long the yellow light was lit, follow up with:
- "Can you estimate how long the yellow light was lit?" (If the officer still won't volunteer an answer, you can contend in your final argument that the officer's powers of observation weren't that good.)
Questions related to your speed:
Ask only if you weren't speeding, and if the ticket itself and the officer's notes are silent about this point. The point here is to show that if you were going the speed limit, the duration of the yellow light was too short to allow you to come to a complete stop before the yellow light turned to red. Believe it or not, traffic signals are not all timed to allow a proper stop given the speed limit (see sidebar below).
- "In your opinion, was I traveling at or near the speed limit?"
- "What was that speed limit?"
- "How many feet from the intersection was my vehicle when the green light turned yellow?"
- "What is the normal stopping distance at that speed limit?"
Speed and Distance: How to Do the Math
Once the officer testifies as to your speed and location when the light turned yellow, you will want to make a quick calculation with a pocket calculator. Multiply the speed in miles per hour by the number 1.47, giving your speed in feet per second. Next, divide this number into the number of feet the officer said you were from the intersection when the light turned yellow. This will give you the number of seconds you had to enter the intersection before the light turned red. If this number is less than the number of seconds the yellow light was on (based on your timing or the officer's estimate), then you would have entered the intersection while the light was still yellow. You can introduce your timing test during your own testimony and refer to it in closing arguments.
If the officer was on the cross street (at right angles to the one you were on), the officer probably assumed that when he or she saw the red light change to green, the yellow light had changed to red in your direction. If this seems to be the case, ask:
- 8. "Could you see the color of the light facing me from your location?" (If the officer says "yes," stop here.)
But if the officer says "no," ask:
- "Why do you say I entered the intersection on a red light if you couldn't see my light?" (The officer will undoubtedly say something like "because my light went green.")
- "You mean you assumed my light turned from yellow to red at exactly that time?" (The officer will most likely answer "yes.")
- "Did you promptly examine the signal to determine whether the light in my direction was properly synchronized so as to turn red when the one in your direction turned green?" (Very few officers check the lights for synchronization. If the officer did not, you can contend in your final argument that it sheds doubt as to whether the light was really red when you entered the intersection. This argument is helped if you also establish that the officer was not in a good position to see exactly when you entered the intersection. If you have established this, you should hit this point hard in your closing arguments. See Red Light Cameras on strategies for beating red light tickets.)
If the officer was at an angle that would have made it difficult to observe, you might ask this:
- "Isn't it true that you couldn't see the color of the signal facing me from where you were?"
Running a Stop Sign
Defending this type of case almost always comes down to a choice between your claim that you stopped and the officer's assertion that you didn't. Here there are commonly only two defenses aimed at raising reasonable doubt:
- Whether you came to a complete stop behind the "limit line" or the imaginary line at the corner where a painted line would go, or
- Whether there was a regulation stop sign controlling traffic in your direction.
Your questions will depend on where the officer observed you. If the officer testified to being on a cross street, or on the other side of the intersection, not at the entrance to the intersection, ask:
- "When you observed my vehicle, were there other vehicles in front of you?"
- "How many?"
- "Can you describe them?" (Unless the officer's notes indicate, he or she probably won't remember the number of vehicles in front, or their descriptions.)
- "How far down the street could you see?"
Don't cross-examine when a stop sign is hidden. As noted in Running a Stop Sign, you can sometimes defend a stop-sign charge by claiming the sign was obscured. If that is your claim, it's probably best not to cross-examine the officer. That's because the officer will probably say that he or she saw the sign clearly. Better to simply tell your story—backed up by a diagram and, if possible, a witness—when it's your turn.
Here we look at a few questions you might ask when ticketed for an unsafe turn. Whether a particular driver is really guilty beyond a reasonable doubt of making an unsafe turn is usually a subjective judgment, unless there is a clearly visible sign absolutely prohibiting the turn. Therefore, you should ask the same sorts of questions you would ask for speeding in a presumed speed law area in order to show that under real-world conditions your turn was done safely. The following questions should be helpful.
If the turn was at an intersection:
- "Was the intersection controlled by a traffic signal?"
- "Did you see the color of the signal when I entered the intersection?" (Unless the officer was directly behind you, he or she could not have seen the signal.)
- "Did I come to a complete stop in the intersection before turning?" (Ask only if you did—it tends to show you were being careful.)
- "How many feet was the oncoming vehicle from me when I made the left turn?"
- "How fast was the oncoming traffic moving?"
Based on the answers to questions 4 and 5, the time you had, in seconds, to make the turn before being hit by the oncoming traffic is equal to the distance of the oncoming vehicle from yours in feet divided by 1.47 multiplied by the speed of oncoming traffic in miles per hour. If this works out to 5 seconds or more, you can later argue that there was plenty of time for you to turn safely.
- "Was my turn signal flashing?" (Ask only if it was.)
- "For how long?"
- "Did any vehicle blow its horn in response to my turn?" (Ask only if none did.)
- "Did the oncoming vehicle slow down, in your opinion, because of my turn?" (The officer will almost always answer "yes.")
- "Did that vehicle screech its tires?" (Ask only if it didn't.)
If the cop says "no," you should ask:
- "Could the oncoming vehicle have slowed down because the driver was waving me to turn?"
- "Isn't it true that many safe drivers slow down at intersections out of general caution, whether or not someone up ahead is turning?"