What do you do when you are attempting to cross-examining the officer on the stand about the actual facts and evidence the officer relied upon that allegedly support the legal presumptions and conclusions that s/he made in the field during your initial encounter with them at the “transportation” stop, and the Prosecution objects to your questioning of the witness about such things?
Let’s look at what usually happens at trial in such cases.
Prosecutor: Officer, what was Mr. Craig doing when you had reason to take notice of him?
Officer: Mr. Craig was “operating” his “motor vehicle” on I-35 at 70MPH in a zone marked for a maximum speed of 60MPH, which was “not reasonable and prudent” at the time “under the circumstances and conditions then existing.”
In his/her testimony, the officer has testified to five specific and totally erroneous legal determinations and conclusions, i.e. “operating,” “motor vehicle,” “not reasonable and prudent,” “under the circumstances and conditions then existing,” and the belief that the posted speed signs apply to anything other than a commercial motor vehicle under the provisions of Sec. 201.904 of the “Transportation” Code. These unsubstantiated claims by the officer during testimony constitutes the making of legal determinations and conclusions because, 1) these are terms defined by statute with specific legal, contextual, and subject matter meanings, and 2) the officer is not legally qualified or capable of making or testifying to a legal determination of law, and, therefore, cannot legally declare whether or not the statutory definition actually does apply to the Accused under the circumstances and conditions as they are currently known and existing.
However, without fail, when you begin to cross-examine the officer as to how s/he came to make such legal determinations and conclusions, the Prosecutor will usually jump up and begin making a rather interesting objection, considering the circumstances under which it is being made. It will usually go something like this:
“Objection! The officer isn’t required to know those things and isn’t competent to testify as to any legal determinations or conclusions that s/he is being asked to make or testify to at this or any other time.”
(Yes, this is literally an objection that I personally witnessed one Prosecutor make almost verbatim in a trial. Most others have usually been fairly similar in their own individual objections).
Now, in volleyball parlance, this is what is known as a “set at the net,” and it is supposed to be the golden opportunity for a member of the team controlling the ball to “set it up” so that another teammate can be the first to get close to the net, jump really high, and spike the ball in the face of the opposing team to score a point. However, the problem with this set up becomes very apparent when the setting team member realizes that they accidentally set the ball too close to the net and within reach of the opposing team’s own high-jumping blocker/spiker who is already at the net, and who now has the opportunity to spike the ball back and gain his/her team control of the serve.
And this is what that spike looks like once the other team has inadvertently set you up on cross-examination with an objection worded fairly similarly to the one above so as to allow you the opportunity to spike it right back in their face:
“Judge, I would like to make this point-by-point response to the prosecution’s objection. During this entire trial the witness for the Prosecution has done absolutely nothing but testify to their own arbitrary legal presumptions and conclusions made at the time of the initial encounter, despite the adamant objections of the Accused. And now, the prosecution wants the court to sustain an objection from them in which they claim that not only is the state’s accuser and only witness not required to actually read and understand the laws and statutes at issue before even attempting to make legal presumptions and conclusions claiming that the Accused allegedly violated them, but also that that same witness is suddenly legally incompetent to testify when asked by the Accused to explain the specific facts and evidence the officer relied upon to reach those legal presumptions and conclusions at the time of the encounter. The very same legal presumptions and conclusions that the witness has already been allowed to testify to on behalf of the State over the strenuous objections of the Accused. Objections that have all been overruled by this very court despite there being no basis in law for doing so.
Therefore, if the court intends to sustain the Prosecution’s objection that the witness lacks legal competency to testify to the specific facts and evidence allegedly supporting those very same legal presumptions and conclusions made by the witness in this matter, then I move the court to declare the witness legally incompetent and unqualified to testify for all purposes, including, but not limited to, those relating to any such legal determinations and conclusions remaining or already testified to thus far, and that his/her entire testimony be stricken from the record.”
Now, if the judge actually grants this motion to strike the witness’s testimony, which the law requires under any normal circumstances that involve real justice and due process, then the next step is to demand a dismissal of the case with prejudice, as the State has no substantive facts or evidence that an eyewitnesses could use to testify against you.
Congratulations, you have now spiked the ball so hard in face of the Prosecution that it permanently tattoos “Voit” across their forehead, and your team now controls the serve.
8 thoughts on “Trial – Undermining the State’s Unsubstantiated Legal Presumptions and Conclusions.”
THAT was a very nice read !!!!!
I have questioned officers about the ‘elements’ & the number of elements necessary to be a “crime” before and the Prosecution objected and said that THAT is what the judge is there for… so far it gas always been sustained!!!!! But I REALLY like the way you laid this out !!!!!
I am (almost) looking forward to my next transportation stop !!!!!
Thank YOU AGAIN !!!!!
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when can I purchase Your -e-book ..??
I am going to spend that $40.00 on Randy’s Beer Fund .. :))
That would depend upon which ebook are you referring to.
I have one as part of the Rule of Law Traffic Seminar material, and I am still writing the second one dealing with the due process and court side of the issue.
I loved this read! You mentioned you are writing a second book about due process and the court side of the issues… I would like to offer a huge gem of a resource to look into… Spencer Barclay, he is brilliant when it comes to court room procedure and due process which is a nut shell is Notice with opportunity to answer. I am fairly new to your page and I can really appreciate what you are bringing to the table, thank you.
Thank you Julian. I will look into Mr. Barclay and see what I can find. D you have any suggestions as to books or legal white papers he might have written on the subject?
I just got railroaded in a criminal trespassing case. I TOOK some of your materials as a reference to court. A court that I did not know that date. Sentencing is next Weds. …. can you come up with something? Can get some help. I am in Decatur, GA. email: email@example.com
WHAT part of my material did you take to court and for what purpose, and what are the facts surrounding the case?
Very useful information – thank you !