Arresting Party’s Responsibility in a Court Hearing
The arresting officer and/or officers are a key component of an Arraignment or Pretrial. Also, the arresting officer is required to be in court if the matter is set for trial. To repeat, there are exceptions, but generally speaking, the arresting officer needs to be present in court.
Sometimes the prosecutor in a case will ask the arresting officer if they are going to be present in court for that day, and the officer will say "yes." That does not mean that the officer in fact came into court. The officer could be in the building, but not in the courtroom. That officer might be in the prosecutor’s office. They might be sitting in their car in the parking lot.
One strategy that is available to an attorney defending a case is to wait to see whether or not the prosecutor has their witnesses available for trial. If one of the prosecution witnesses is not in court, then the prosecutor cannot call that witness at trial. If the arresting officer is the only witness that the prosecutor has, which is the case in many traffic matters, then there is no evidence for the Court to find the driver guilty. Therefore , the case must be dismissed. Similarly, if the prosecutor called the arresting officer to testify, but the officer does not answer questions in a way that allows the prosecutor to establish all of the required elements of the crime, then the prosecutor cannot find the driver guilty.
It is important to note that once the testimony of a witness starts, that witness cannot be told by anyone (except the judge) that they can stop testifying. If the prosecutor realizes that they cannot prove some element of the charge with that witness, then the prosecutor needs to voluntarily dismiss the case against the driver. The prosecutor cannot "stop" a witness from testifying because the prosecutor is worried that the witness is going to hurt their case. Unfortunately, some prosecutors will try to stop a witness from testifying in some cases. This is why the answers to the questions you are asked by the prosecutor play such a pivotal role in your case. You cannot be convicted of any crime if the prosecution does not have a witness testifying under oath or if you have not admitted guilt.
Officer Requirements For Court Appearance
If you are arrested on suspicion of driving under the influence, do you wonder whether the officer who arrested you will appear in court only on the date when your case gets called? In California, there are certain legal requirements pertaining to a police officer’s presence in court. The circumstances are generally as follows.
First, even if the arresting officer actually saw you drive a motor vehicle and pull over, it is not required that the officer be present to testify at your court appearance for purposes of bringing charges against you. If there are issues as to whether there was a proper stop or DUI arrest, the officer’s presence at your proceedings is not required. The prosecutor may introduce into evidence the arresting officer’s sworn report.
Second, if you have a license that was previously suspended, it is generally not required that the arresting officer be present to prove the fact that you had a prior license suspension.
Third, if the officer did not actually see you drive a motor vehicle, it is required that he or she appear at court. The testimony of the arresting officer is necessary to prove up the fact that you drove a motor vehicle.
Generally speaking, the prosecutor in your case must bring in the arresting officer to testify where the arresting officer must testify to the basic "gist" of the observations that led to your arrest. For example, the arresting officer may testify concerning the speeding, weaving, lane change, stop, reaction to being pulled over and so on. Also, the arresting officer must also testify to the field sobriety tests administered to you, how you performed on those tests, and the arrest itself.
When such testimony is given by the arresting officer, he or she may be cross examined and exposed to impeachment evidence as to the arresting officer’s credibility. Stated another way, the offense is proven by circumstantial evidence, which if sufficiently corroborated by the arresting officer’s testimony, may make a permit issued to you by the DMV valid. Thus, the arresting officer’s testimony must be corroborated by other circumstantial evidence that goes to the issue at hand.
For example, if the DUI arrest book indicates that you had bloodshot eyes but the police officer merely says that you were "very tired" and does not remember your eyes being bloodshot, your attorney will use this discrepancy in his or her closing argument to impeach the arresting officer’s credibility, i.e., to show that the arresting officer is not to be believed. Such discrepancies go to the weight and credibility of the evidence, not its admissibility. When such evidence is introduced, it can serve to make a permit issued to you by the DMV invalid.
Effects of Missing Officer at a Court Hearing
If the officer making the arrest is unable to appear or is out of town the government may, under limited circumstances, present various forms of evidence to the court which would be subject to objection by the defendant or his or her attorney. The fact that the arresting officer is unavailable may result in delays and/or damage to the prosecution’s attempts to prove its case. Evidence may be either physical or testimonial, and both categories are discussed below.
If the officer simply is unavailable for some reason (that isn’t directly related to lack of a job, such as illness), the suspect’s lawyer is likely to object if the testimony of the officer is attempted to be introduced through another means.
Physical evidence may be brought into court, however, without the officer being present, and courts may admit this evidence if the defense fails to make an objection. In addition, some jurisdictions may recognize in addition to direct testimony of a witness, i.e., the arresting officer, records of village police officers who come to court for cases in which they have been involved, and appear to be a means of avoiding crossing-examination or perhaps allowing for the use of secondary evidence.
Testimony and Evidence Presented by Officers
Often, when the arrest is made on the basis of a probable cause determination by the officer, and sometimes with respect to observations made by witnesses as well, it is not necessary for the arresting officer or an officer at all, to attend Court and testify. The code of criminal procedure provides that all offenses must be prosecuted in the name of the state of Texas, but provides no requirements that a particular person must testify in order to achieve that substantive outcome.
The officers often will be called and be in attendance, but it is not necessary for the defendant to be convicted. There are three basic types of evidence that judges are willing to rely upon: 1) officer testimony regarding observations of physical evidence or conduct; 2) into evidence breath samples or blood samples; 3) documentary evidence such as statements of defendants made to officers , or sometimes witnessed statements regarding the defendant’s driving (911 tapes and other recordings).
An example of acceptable officer testimony would be where a police officer describes an odor of alcohol coming from the defendant when he approached the vehicle. Arresting officers also often provide diagrams or documents (such as intoxilyzer printouts) into evidence and explain what constitutes a "failure" of the test at issue, and connecting that with testimony in which they observed the defendant give the breath or blood sample.
Defendant’s Rights – Officer Involvement
As a defendant you have the right to confront all witnesses against you; your right to confrontation includes the right to have the arresting officer present at trial. A witness cannot get the best evidence into the courtroom without being in court and subject to cross-examination on the microphone. It’s been this way since the Constitution was adopted. Not only did the framers of the Constitution give us the right to confront our accuser, but so did the Georgia legislature. If you want the arresting officer to testify, you must ask that the officer be subpoenaed to appear in court.
The Sixth Amendment gives the defendant to confront his or her accusers. This is what the Supreme Court had to say about the importance of the right to confront accusers at trial: The right to confront one’s accusers is a concept closely akin, if not inseparable, to the due process of the law required by the Fourteenth Amendment. It is a right so fundamental to our system of jurisprudence that any limitation upon it, unless harmless beyond a reasonable doubt, would violate the "the rudimentary demands of fair procedure." . . . This right is embodied in the compulsory process and the public-trial guarantees of the Sixth Amendment, and is substantially reflected in numerous state constitutions.
The Georgia Supreme Court agrees that the defendant’s constitutional right to confront accuser includes the right to confront the arresting officer: The Sixth Amendment of the United States Constitution and Art. I, § I, Par. VIII . . . confer upon the accused the right to confront witnesses against him by cross-examination. The legislature has adopted [OCGA § 24-3-51, now OCGA § 24-9-85], which requires that a witness who has made a statement out of court, which has been admitted in evidence, be made available for cross-examination, unless he is "unavailable." . . . "Unavailability" may be attested to on the trial of the case by the arresting officer.
The Uniform Rules for the Municipal Courts are more specific than the Constitution. The Rules provide: "Subpoena" means a judicial writ commanding a person to appear at a time and place specified to give testimony. A person who is not a resident of the City of Peachtree Corners and who has not been served by a Georgia enforcement officer may be served by certified mail or regular mail, return receipt requested. When service is made by mail, and where an acknowledgment of receipt is made on the return postal card, a copy of the return postal card will be forwarded to the Clerk of the Court with the Subpoena. If a person is not a resident of the City of Peachtree Corners, it shall be the responsibility of the Officer to request permission of the Court to issue a Subpoena outside the City. A Subpoena which needs to be served outside the State of Georgia shall be issued in writing by order of the Court.
Your right under the Sixth Amendment is broader than this Georgia statute. However, the Georgia rule provides a practical solution to how you can get the witness you need.
Defense Strategies for Absent/Non-Appear Officer
As previously noted, police officers generally cannot be held in contempt for an arresting officer’s failure to appear. However, if at the hearing there is material testimony that a judge may need, some strategies may be used. In many jurisdictions there is a statutory right to subpoena. If an officer from another department has important testimony to present, in many cases, they can be compelled to appear for the hearing by service of a subpoena. Subpoena may make the officer personally responsible for their failure to appear and in some cases even may lead to a complaint against them for failing to honor a subpoena. But in either case, even if the judge orders the officer to appear or a subpoena is issued for them to appear, it will not be the end of the matter, if the officer fails to appear. A defense lawyer may be able to obtain the dismissal of the charges.
Dismissal of Charges In the event the officer fails to appear for the hearing or a subpoena is served and the officer does not appear, the defense lawyer typically makes a motion to dismiss as set forth in F.B. Marquardt Co. v. Pedler (1970) 8 Cal.App.3d 248: "Where, as here, it appears that a material witness is not only absent but is out of the state, a defendant may move to compel attendance of the witness through a letter rogatory directed to the court of the foreign jurisdiction, and such motion should be granted if the defendant demonstrates sufficient need. In so ruling , the trial court should have regard to two factors: (1) the quality of the State of California’s "interest" in compelling the prosecution witnesses to testify and (2) the difficulty of requiring them to do so by means other than letter rogatory. The defendant must demonstrate the existence of circumstances justifying invocation of judicial assistance and the trial court must exercise its discretion in considering such circumstances. If the defendant is able to demonstrate special need and the court concurs in finding such special need, the court may issue an appropriate order. The court may, however, enforce compliance with its order by indirect means available to the court of the foreign state which has received its mandate ". In a lot of jurisdictions, the Court is not limited to making only those two inquiries in ruling on the defendant’s motion and may impose any appropriate sanctions that it deems appropriate. In large enough jurisdictions, what usually happens is that the judge examines the prosecution’s alleged "good cause" for the officer’s absence, especially when the officer was out of town somewhere else, or on some other assignment. The lack of jurisdiction may also be a viable motion, even if the officer is not present or is serving in some other capacity. Depending on the circumstances, the defense may be forced to show a lack of "good cause" for the officer’s absence. The officer has no right to be absent from the hearing unless the court says they cannot participate. Hence in some cases, the defense lawyer can file a motion that would suggest sanctions that the client would request, if it is believed that the court may require that the witness in the case be present and later will have the court decide absent testimony. In some cases, personal attendance could lead to additional charges against the prosecution.