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deposition man · Aug 12, 2009, 08:01 AM

I got a speeding ticket on 11-26-08 and when I asked for a deposition the officer sent it back to me with the wrong date 1-26-09. Is this grounds for dismissal?

JudyKayTee · Aug 12, 2009, 08:17 AM

No, it's not. It's a human error. You can try to get it dismissed but I think you will spend time and energy and not be successful.

JudyKayTee · Aug 12, 2009, 11:26 AM

[QUOTE=\Comments on this post
AK lawyer agrees: But I am at a loss to know what "deposition" means in this instance..[/QUOTE]

You've never heard of a written deposition in a criminal case? They are fairly common in NY, particularly in V&T matters, especially when radar is involved.

Must not be used in wherever you're admitted to practice.

JimGunther · Aug 12, 2009, 06:35 PM

A deposition in a simple traffic ticket case is unheardof in my training and experience. I think the OP might not be using the correct term. It's a sworn statement given by a party in a case in advance of a civil or criminal trial, usually given in a lawyer's office or other location as opposed to being given in court in a legal proceeding. A traffic defendant should never ask for one from the officer issuing the ticket-such a request would be pointless. Proof of radar certifications, etc. would be demonstrated at trial.

If the officer sent you something in response to your request, it doesn't sound like a deposition within the normal meaning of the term. As a general rule, an officer in such a circumstance is not obligated to give anything to the defendant, except a charging document of some kind, in this case a citation.

JudyKayTee · Aug 13, 2009, 05:45 AM

Originally Posted by JimGunther

A deposition in a simple traffic ticket case is unheardof in my training and experience. I think the OP might not be using the correct term. Its a sworn statement given by a party in a case in advance of a civil or criminal tria, usually given in a lawyer's office or other location as opposed to being given in court in a legal proceeding. A traffic defendant should never ask for one from the officer issuing the ticket-such a request would be pointless. Proof of radar certifications, etc., would be demonstrated at trial.

If the officer sent you something in response to your request, it doesn't sound like a deposition within the normal meaning of the term. As a general rule, an officer in such a circumstance is not obligated to give anything to the defendant, except a charging document of some kind, in this case a citation.

It's not unheard of in my training and experience. As I said, I see it in cases involving radar (primarily).

You may very well be correct that the OP used the wrong terminology; however, please don't simply discount MY training and experience because this is not the procedure in your State.

JimGunther · Aug 13, 2009, 06:51 AM

Originally Posted by JudyKayTee

It's not unheard of in my training and experience. As I said, I see it in cases involving radar (primarily).

You may very well be correct that the OP used the wrong terminology; however, please don't simply discount MY training and experience because this is not the procedure in your State.

So what you're saying is that in the cases you are familiar with, a deposition is given in a radar case, which means that in a lawyer's office someplace, a sworn statement is given about the case prior to trial. That's what a deposition is, and the reason such a thing is pointless is that the officer testifies at trial to all the elements of the case, including his radar certification and the certification of the radar unit. Trials of this type normally take only a few minutes and going to the trouble of deposing someone prior to that would be an obvious waste of time.

That and the fact that the officer would never mail such a thing to the defendant is what leads me to believe that the OP is not talking about a deposition within the normal meaning of the term. The concepts I am explaining obviously say nothing about your, or anyone's, training or experience, which you once told me was in accident investigation.

I will admit that once a minor traffic offense turns into a major civil suit for damages, depositions are commonly taken. That, of course, would involve a traffic accident, which does not appear to be the case here. If the officer were deposed in such a case, it would not be up to him to mail the deposition to anyone, the matter would be handled by the attorneys in the case.

This site explains what I am talking about:

http://www.answers.com/topic/deposition

HOWEVER... Having said all that, lets clarify the issue as it happens in New York and some other states. On traffic tickets in such places, there is something called a "supporting deposition" that is part of the citation. This is merely a statement of facts about the case, such as time, date, location, and type of radar equipment used, etc. It has nothing to do with a deposition as it is normally defined in the law.

This site shows a New York traffic citation with a "supporting deposition" attached, and is probably what the OP is referring to:

http://www.redlichlaw.com/traffic/ny...ng-ticket.html

Since the OP asked, typographical errors in charging documents are seldom grounds for dismissal and are commonly amended to the correct information in court with the approval of the judge. Major mistatements of important elements of the case would be a different matter.

deposition man · Aug 13, 2009, 09:14 AM

Thanks for the feedback. Can I at least argue that since the officer can't remember the date of the incident he is incapable of testifying about the other details of the case? And since the people have the burden of proof beyond the summons they would need his testimony...
Would that be the right argument?

JimGunther · Aug 13, 2009, 09:23 AM

For sure... I worked as a police officer and a bailiff in Maryland District Court and have seen cases lost because the officer didn't remember elements of the offense. In some cases the officer couldn't read what was on the ticket, which they are allowed to do when testifying. Its pretty obvious that for whatever reason, if the required elements of a specific offense (traffic or criminal) are not testified to in court, the case is lost.

JudyKayTee · Aug 13, 2009, 09:31 AM

I am talking about an Attorney requesting a written supporting deposition by the Police Officer in an attempt to avoid trial.

I think it should be called an Affidavit but I have seen it referred to as a written deposition.

The Attorney provides the boiler plate questions and the Police Officer provides and swears to the answers. Usually the questions pertain to calibrating the radar equipment and the Officer's experience.

JimGunther · Aug 13, 2009, 01:45 PM

What you are talking about is called "discovery." The only way to avoid trial is for the prosecutor to drop the charges. Discovery permits the defense to prepare its case. If discovery reveals to the defense that the state has no case, they can ask for a dismissal on the trial date, generally worked out between the prosecutor and the defense prior to trial. I've seen it happen like that many times, but as I said previously, every radar case I ever saw involved the officer testifying about experience, certification and instrument calibration under oath in court.

JudyKayTee · Aug 13, 2009, 02:19 PM

Originally Posted by JimGunther

What you are talking about is called "discovery." The only way to avoid trial is for the prosecutor to drop the charges. Discovery permits the defense to prepare its case. If discovery reveals to the defense that the state has no case, they can ask for a dismissal on the trial date, generally worked out between the prosecutor and the defense prior to trial. I've seen it happen like that many times, but as I said previously, every radar case I ever saw involved the officer testifying about experience, certification and instrument calibration under oath in court.

I never said the Officer didn't testify under oath. I said I've seen Attorneys request this info in a written deposition (and it's not called "discovery") so that the officer didn't have to testify, so that the Attorney could weigh the evidence. Sometimes it goes on to trial and sworn testimony. Sometimes it does not.

So every radar case you've ever seen involved testimony. I've seen more than a few that involved a plea deal, dropping the charges - not ever radar case I've seen HAS involved testimony.

No, the only way to avoid trial is not for the prosecutor to drop the charges. Something new called "plea bargaining" has been invented.

JimGunther · Aug 13, 2009, 06:34 PM

I see what you are saying, when I said "every case I ever saw", I meant every case that went to trial. As a bailiff or police officer sitting in a court room, I wouldn't see much of a case if there was no trial.

Of course a plea bargain (or other guilty plea) can eliminate a full-blown trial but it has to be presented to the judge when the case is called as part of the docket. At that time the judge will decide to accept or reject the plea bargain. If the judge refuses to accept the plea bargain, there may very well be a trial.

I think the question has been answered and I don't see the value of getting involved in side issues.

JudyKayTee · Aug 13, 2009, 06:47 PM

Originally Posted by JimGunther

Of course a plea bargain can eliminate a full-blown trial but it has to be presented to the judge when the case is called as part of the docket. At that time the judge will decide to accept or reject the plea bargain.

You are incorrect when you imply that a plea bargain has something do to with dropping the charges. In a plea bargain, the person pleads guilty to the charges, they are not dropped. I think the question has been answered and I don't see the value of getting involved in side issues.

The person doesn't plead guilty to the charges; the person pleads guilty to another charge, a lesser charge, a reduced charge. I didn't imply anything. I said it straight out.

And I agree - this is a side issue and apparently you and I went to different law schools.

JimGunther · Aug 17, 2009, 01:20 AM

You never heard of a person pleading guilty the original charge but to a reduced sentence? I saw it on a regular basis.

JudyKayTee · Aug 17, 2009, 05:48 AM

Originally Posted by JimGunther

You never heard of a person pleading guilty the original charge but to a reduced sentence? I saw it on a regular basis.

If you read back you will find that this is not what the thread is about. The thread is about getting the statement of the Officer so that the Attorney knows what a reasonable/feasible plea or plea bargain will be.

I never said anything about pleading to the original charge but to a reduced sentence - these are two different things, at least in NY.

Please stop twisting my words to suit your purpose.