This simple refresher from your eighth grade math class tells you almost everything you need to know to cross-examine a police officer regarding visual estimation: Rate x Time = Distance. If you know the time and distance variables, then you can tell precisely the rate of speed of an object. This can be used in court and successfully avoid paying speeding ticket fines. More on how to fight speeding ticket in court later.
In order to beat a speeding ticket in court, there are several points in the police officers case that can be defeated. Below, I will discuss how an experienced traffic ticket attorney will likely argue each point, in an effort to find just one weakness. If any part of the officers testimony can be found to be inaccurate, the case will likely be dismissed.
Most police officers are trained in how to visually estimate the speed of cars. The training usually consists of the trainee or trainees going out with an instructor and a radar unit and visually estimating the speed of vehicles traveling on a roadway. The estimation skill is honed by comparing the estimates with the radar reading. Variables such as the size, color, and distance from a vehicle affect the perceived speed of the vehicle when visually estimating speed.
For example, think of how slow an airplane appears to be traveling. Clearly, a visual estimate is not an exact science. Undermining a visual estimation, even when radar evidence is introduced, is important because police officers are trained not to rely solely on the radar unit for their determination of speed. Rather, they are trained to first visually estimate the speed of the vehicle and then confirm their estimation with the radar unit. This is done because radar gun readings are often inaccurate for two reasons.
First, similar to a flashlight beam, the radar unit's wave widens as it gets farther away from the radar unit. Because of this effect, whenever there is any appreciable traffic the radar is detecting vehicles other than that of your client.
Second, large objects such as buildings, billboards, large trucks, and heavy vehicular traffic distorts the wave and leads to an artificially high speed reading for the target vehicle. Consequently, an officer cannot tell exactly which vehicle is speeding in the flow of traffic without first visually estimating and only then confirming his visual estimation with the radar.
For example, in the case of People v. Knight, the arresting officer testified that he visually estimated the defendant's speed "prior to switching on the radar unit." This visual estimation, which preceded the radar confirmation, led the court to rule that "[i]n light of this corroborative evidence, any perceived deficiency in the radar evidence is of no consequence."3 Relying solely on the radar unit's reading would be insufficient to prove the people's case beyond a reasonable doubt, which is why it is so important to discredit the visual estimation in the first instance.
This brings us back to the visual estimation and the formula of R x T = D. Police officers will usually testify that they observed the defendant "for a few seconds." You need to pin them down on a time. A line of questioning could go as follows:
Q: How long of a time did you observe my client to make your visual estimate?
A: A few seconds.
Q: So you do not really know.
A: It was two or three seconds (or) not really.
If "two or three seconds," then:
Q: So it could have been three seconds… maybe it was four seconds… etc.
If "not really," then:
Q: Well you just testified that it was a few seconds, so it was at least three seconds…so it could have been longer than three seconds… etc.
The overarching goal it to elicit testimony that tends to lengthen the time that the officer took in observing the vehicle to make his estimation. The longer the visual estimation took, the slower the vehicle was traveling. Next, elicit testimony regarding the distance the vehicle traveled during the time period that the officer made his visual estimation. The more experienced officer will know where you are going with this and will resist giving such testimony. A technique to use is to "back door" into the answer. When you first begin cross-examination, review some basic facts that were already elicited on direct, such as date, time, and the location of the incident. On direct, the people sometimes ask how far the officer was from the vehicle when it was first observed. If so, note it. If not, after asking the above basic questions, ask whether your client's vehicle was traveling toward or away from the officer. Then ask the following question: "When you first observed my client's vehicle, how many feet from you was it?" If you elicit that information in such fashion the officer is unlikely to know for what purpose that you are asking the question and you are more likely to get a response. In the event that the officer's response to the query is still "I do not re-call," then ask questions regarding where he was in the road, how far away he was from the nearest intersection, landmark, or mile marker, and the distance from that landmark to the defendant's car when first observed. Unless the officer answers "I do not know / I do not recall" to every single question, you will eventually arrive at an answer as to how far the vehicle was from the officer when he first began his visual estimation. If the officer does shut you down "I do not know / I do not recall," that is okay too, because it calls into question the accuracy of the officer's entire testimony.
The next thing that you need to establish is how far the vehicle was from the officer when he completed his visual estimation. Do not go into that right after establishing how far he was when he first observed the vehicle because this will tip the officer off. Instead ask some "buffer questions" in between: weather, roadway conditions, anything. When you come back to distance ask "how far was my client from you when you finished your visual estimation?" Do not preface the question with his answer as to when he first observed the vehicle. Simply ask, "when you completed your visual estimation, how far away from you was my client?" If he says "I do not understand" or "I do not know," then get into the fact that he gave testimony as to how far the vehicle was when first observed, and now you are asking how far it was from him when he finished his visual estimation. Again if he is recalcitrant in giving the distance, go through the questioning about the roadway, landmarks, etc. again. Once you know the dis- tance of the vehicle was when it was first observed, and the distance of the vehicle was when it was last observed for the visual estimation then you know the distance traveled during the visual estimation period. As with time of observation, pin the officer down to as specific a distance as pos- sible. On distance when first observed, ask the following:
Q: When you first observed my client, how far away was he from you?
A: I would say about 200 feet.
Q: About 400 feet, so it could have been closer to you?
A: I guess so.
Q: Could it have been 350 feet?
On distance when visual estimation was completed, as the following:
Q: When you completed your visual estimation how far away from you was
my client?
A: About 200 feet.
Q: So it could have been less than 200 feet?
A: It could have been more.
Q: And it could have been less?
A: I suppose.
Q: So it could have been 175 feet away from you when you completed your
estimation?
With distance, the shorter the distance of estimation, the slower the vehicle was traveling.
After determining time and distance, you can now accurately calculate speed.
First, you need to calculate feet per second. For example, using a 3 second estimate
and 250 feet traveled, T = 3, D = 250, and R x 3 = 250. To calculate Rate (R), divide
distance (250) by time (3). The rate is therefore 83.3 feet per second.
The rate, however, is only feet per second, not miles per hour (mph). To figure
out mph, you need to divide the feet per second by 1.466. 1.466 is the divisor
because at 1 mph, a vehicle is traveling 1.466 feet per second. In this case, 83.3
feet per second divided by 1.466 equals 56.82 mph. Of course you need to bring
a calculator to court. You should also do this calculation quietly without asking a
running question, because until you do the math you do not know what the answer
will be. Below is a quick reference conversion chart:
FEET PER SECOND |
MILES PER HOUR |
| 88 | 60 |
| 44 | 30 |
| 132 | 90 |
| 66 | 45 |
| 22 | 15 |
Whether to follow-up with questioning regarding the speed based upon the officer's
testimony regarding visual estimation depends upon the calculated rate of
speed, the speed limit, and the alleged rate of speed. Remember, you lead this wit-
ness in eliciting his testimony as to time and distance. Thus, if the rate of speed
ends up supporting the people's case you would be hard pressed to try to impeach
the testimony about time and distance that you just elicited. In that case, the best
course of action is to not ask any more questions about time, distance and speed
and to move along to an impeachment as to training (below). However, if the rate
of speed based upon the officer's unimpeached testimony helps your client, then
ask the following:
Q: Officer, you are aware then that my client was only doing 56.82 mph.
A: No, he was going 87.
[Hold up your calculator and as you punch in the numbers ask]
Q: Officer, you testified that you observed my client for a distance of 250 feet
for 3 seconds, correct?
A: Yes.
Q: Well then, my client was doing 83.3 feet per second
[Hold up your calculator to the officer with the answer showing].
A: O.K.
Q: Well, at 83.3 feet per second, that means my client was only going [dramatic
pause as you divide by 1.466] 56.82 mph. [Hold up your calculator].
At this point the officer will say something disagreeable. To drive the point home to the judge (who probably does not understand the math), say the following:
Q: Officer, you would agree that at 60 mph a vehicle is traveling at 1 mile per minute.
A: Yes.
Q: And that there are 5,280 feet in a mile?
A: Yes.
Q: So at 60 mph, a vehicle is traveling 88 feet per second? If he says "I do not know / I do not understand," then continue with the following:
Q: Well, you would agree that there are 60 seconds in a minute?
A: Yes.
Q: So to calculate how many feet per second a vehicle travels at 60 mph, all you have to do is divide 60 into 5,280 feet?
A: O.K.
Q: Which comes out to 88 feet per second.
A: I suppose.
Q: And my client, doing 83.3 feet per second, was then clearly going slower than 60 mph, right?
A: If you say so.
Q: In fact he was only doing 56.82 mph.
A: [Who knows what the answer may be.]
Q: But officer, this is your testimony. You did visually estimate my client for three seconds, did you not?
A: About.
Q: And your testimony that he traveled 250 feet in those three seconds was accurate, correct?
A: Yes.
Q: So officer, if you are testifying truthfully regarding the time it took to make your visual estimate, and the distance in which my client traveled in that time, which I am sure you are, then clearly your visual estimation of my client's speed is inaccurate. It really does not matter what he says after that.
You made your point.
If you have already established through cross examination evidence that your
client was actually within the speed limit or substantially less than as charged you
have just turned the officer into your witness. Consequently, the last thing that you
would want to do is to then discredit his training; however, if you did not gain
any advantages when asking time and distance questions, then you should cross
examine on training.
As stated above an officer is trained in visual estimation by going out with an instructor
and usually a group of students and a radar unit, visually estimating traffic,
and comparing their guesses to the radar reading. Here is what you can do
with such testimony:
Q: Officer, I see that you brought in the calibration certificate for the radar
you used on the day of the stop.
A: Yes.
Q: Because if the radar is out of calibration then the readout would be
unreliable.
A: Yes.
Q: And if the radar reading were unreliable, then you could not testify about
it here at trial.
A: Yes.
Q: So it is important to make sure that the radar is kept calibrated.
A: Yes.
Q: So that your testimony about its readout will be admissible.
A: Yes.
Q: And reliable.
A: Yes.
Q: Officer, you previously testified that the method by which you were
trained was that you were taken out to a roadway by a training officer and
compared your estimate to that on a radar.
A: Yes.
Q: Officer, may I please see the calibration certificate for the radar that you
used when you were trained?
At this point the people will likely jump out of their skin objecting. But it is a
fair juxtaposition. If the radar unit that the officer was trained on was out of cali-
bration, then the readings by which the officer confirmed his estimates in training
were unreliable. Consequently, his testimony regarding visual estimation are unreliable.
If the court overrules the people, as it should, then press the issue:
Q: Officer, the calibration certificate?
A: Well, I do not have it.
Q: You do not have it? So you cannot say that the radar unit that you were
trained on was properly calibrated?
A: No I cannot.
Q: So you do not know whether its readings were reliable?
A: I guess.
Q: In fact, that radar unit was not even owned by your department [It usually
is not].
A: No.
Q: You do not know anything about the age of that unit?
A: No.
Q: The condition it was in at the time you were trained?
A: No.
Q: The repair history?
A: No.
Q: How it is stored?
A: No.
Q: So if you cannot testify as to the calibration and reliability of the training radar,
we really do not know if your visual estimations are reliable?
At this point the defense has set up a motion to either preclude expert testimony or strike all of the previous testimony regarding visual estimation. If there
is no evidence that the radar used to confirm the visual estimates in training was
calibrated and in working order, then there is no evidence that the officer learned
to make sufficiently accurate visual estimations in the first instance. This makes
his testimony inherently unreliable and it should be precluded from trial.
You can also impeach the general way in which the training was done. Visual estimation training is usually done in a group and not one-on-one with an
instructor. Consequently, the group may have conferred with one another on a
visual estimate, which could influence the training and skew the accuracy of a
particular student's results. Furthermore, no independent tests given and graded.
In other words, the very nature of the way in which the training is conducted,
coupled with the fact that there is no independent grading or testing done upon
completion of the training, may lead an officer to believe that he has the requisite
skill to accurately visually estimate, when he in fact does not. This conclusion can establish a faulty speed estimate, and beat a speeding ticket.
1This is for a Doppler radar unit only. If a laser unit is employed it must be pointed by hand
directly at the vehicle and a trigger mechanism pulled much like shooting a firearm. Most local
police principally use Doppler radar. State Police routinely use both.
2 People v. Knight, 72 N.Y.2d 481, 488 (1988).
3 Id. See also, People v. Fell, 4 Misc.3d 1021(A), (Sup. Ct. Bronx County 2004), officer testified that he
first visually estimates the speed of a vehicle before monitoring with radar.
* Michael J. Palumbo is an attorney and former police officer. He maintains a civil and criminal litigation practice in Mamaroneck, NY. He can be reached at 914-777-2990 or on the web at WWW.MPalumboLaw.Com.
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