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Hammer O'Justice
Hammer O'Justice, Criminal Lawyer
Category: Criminal Law
Satisfied Customers: 4005
Experience:  9 years legal experience, primarily in criminal justice
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I am pro se I had a superior court judge tell me that a

Customer Question

I am pro se

I had a superior court judge tell me that a motion I wrote up (dismiss based on lack of evidence on a 647f) is invalid because what was written in the police report is 'here say' and it's the testimony of the officer that he has yet to here and that the officer 'may remember something about me that sticks out'.

To me, a signed police report with the observations made by an officer is NOT here say, but a legal document I could quote in court. Then I went down the path of thinking that he is like inviting the officer to make up something 'extra' on me. After I got the 647f (at the end of a county fair) they had 63 arrests the weekend following mine during a drug-infested music event. How is the officer supposed to remember something about me after that. He didn't put down anything other that in 'his opinion' I looked drunk and unable to take care of myself. I staggered, he said, but that was the worst of what he put down. I didn't fall down, scream obscenities, etc. And there were NO witnesses.

Anyway, like how is the officer's memory better after a few months down the line? Aren't judges supposed to be impartial? Can I or can I not use the officer's statements in the police report?
Submitted: 4 years ago.
Category: Criminal Law
Expert:  Hammer O'Justice replied 4 years ago.
Hello.

Police reports ARE hearsay and are not generally admissible in court. Police reports are also not expected to be the totality of an officer's testimony. A police report provides enough details to sustain a probable cause finding for the charges, but the testimony is usually much more in depth than what is written in the statement. The statement also usually refreshes the officer's recollection many months later as to what happened. If the officer testifies inconsistently with the police report, you can ask him about the inconsistencies, but you cannot move it into evidence.

The judge is not being partial just because you don't understand what he is doing. Once probable cause is established, the prosecution is given the opportunity to prove the case beyond a reasonable doubt through the officer's testimony. As long as the charging document contains probable cause, dismissal is not appropriate until after the prosecution presents their case. If it is lacking at that point, the judge can grant a defense motion for judgment of acquittal. But as long as the charging document contains probable cause, a motion to dismiss will never be granted prior to trial.
Hammer O'Justice, Criminal Lawyer
Category: Criminal Law
Satisfied Customers: 4005
Experience: 9 years legal experience, primarily in criminal justice
Hammer O'Justice and 4 other Criminal Law Specialists are ready to help you
Customer: replied 4 years ago.
Not sure if I want to, but could I deposition the officer in order to finally find out what they think they have on me? 1) Could a lawyer deposition the officer. 2) Could I deposition the officer myself? 3) Could my husband, who is straight edge with clean record, do the questioning in the deposition for me?
Expert:  Hammer O'Justice replied 4 years ago.
Depositions are not generally allowed in criminal cases absent a compelling reason. You have a general statement of the case, and you will hear the officer's side of the story in court and be permitted to question him about it. And even if depositions were allowed, your husband absolutely could not conduct one. It is unauthorized practice of law, which is illegal. Only barred attorneys and defendants acting as their own counsel are permitted to participate in the criminal process.

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