I'm about to try an intoxication manslaughter case. Initially, based on measurements taken at the scene, a police officer calculated the speed of the defendant's vehicle at 97 mph. However, we have retained an expert who says that the 97 mph calculation is wrong because the officer mistook a skid mark as a yaw mark. The speed is still going to be pretty high (70-80), but certainly not the 97 mph originally thought. My defendant is a .23 and the accident was a one-car rollover in which the defendant failed to negotiate a highway exit. At trial, we are going to put on our expert and, obviously, not the officer who did the original (wrong) reconstruction/speed calculation. I have advised the defense attorney about the mistaken speed calculation. I am sure he is going to want to tell the jury about it even though we will not be relying on it. I'd like to limine out any reference by the defense to the wrong speed calculation. Any thoughts? Any one faced a similar situation? Any help would be appreciated.

Assuming your officer's incorrect calc made it into his report, why wouldn't the defense be allowed to cross him on it, even if they have to put him on to do so? Wouldn't it be pretty harmless to admit the mistake then use your expert to explain and minimize its impact on the ultimate conclusion, i.e., your def got drunk, and as a result crashed his car and killed someone?

I would try to limine it out as irrelevant, a waste of time, and confusing to the jury.

What possible relevance is there to the fact that a cop who did the intitial calculations made a mistake, which exagerated the speed your crook was traveling, and which you are not introducing into evidence?

If the court allows it into evidence, I wouldn't worry about it too much. I would argue that the fact that the DA's Ofc. hired an expert who came to a conclusion that reduced the estimated speed shows how careful the final investigation was.

I think it is fair game for the defense and should be let into evidence. This officer may have done more work on this case and might testify regarding other evidence that will be helpful to the state. If so, why shouldn't a mistake the officer made be admissible to impeach any other conclusions the officer may have made? If a defense witness made the same mistake, I would want the jury know about it.

I think it is relevant for impeachment but given that the recalculation benefits the Defendant I really believe it would be the defense who would want to keep the higher number out, mistake or not.

Richard

[This message was edited by Richard Alpert on 09-22-03 at .]

The officer in question will not be testifying. He helped with the measurements, but another officer was responsible for the scene measurements and will testify. Our accident reconstruction expert (Tim Lovett) has verified all of the measurements. The only thing the other officer did was make speed calculations (mistaking a skid for a yaw) based on the measurements. I don't anticipate using him for anything else. Right now I'm kind of leaning toward introducing it in our case and not let the defense argue that we tried to hide it. Although, as Richard points out, we corrected the error, are not relying on it, and it helps the defendant. More thoughts? Any input will be welcome.

Mention it and move on. I think the jury will be reassured to know that 1) you are being as honest as possible with them and 2) someone took the trouble to go back and RE-check the original calculations to make sure they were as accurate as possible.

I think your strategy to steal a little thunder from the Defense, so they cannot argue that you were trying to hide the ball from the jury, is the correct one.

Good luck.

Combine your motion in limine with a Duabert challenge. If the defense can establish that the calculations were properly done, then the results come in (win, win for you). If they can't, then the results are excluded. (win, win for you).

A lot to be said for letting them punch at this false hope though. Say "Where is their expert to challenge the .23?" Talk of smoke and mirrors, but no substance.

Good luck.

If you don't need the officer for anything else, I would make the defense call him. It will make them look desperate and make your presentation look more reasonable, especially in light of the fact that you are presenting the facts that are better for the defendant. If the defense calls a witness just to impeach him for something that everyone agrees was wrongly calculated, it will do nothing but irritate the jury (which, of course, benefits you). It also gives you the opportunity to take the officer on cross and argue your case using leading questions prior to closing argument.

I agree with those who suggested introducing it as part of your case. Take the sting out and enhance the State's credibility for willingly admitting a mistake *and* bending over backwards to be scrupulously fair to the D.

I think it comes in as it goes to the competency of your officer and his opinion making abilities.

However, to bolster your new expert, have you tried to get the speedometer reading through ALS or the black box??

We still have the truck and the black box. However, every expert involved has advised that the information we would like from the black box is not available for a couple of reasons. First, they tell me, Ford has not released the software for downloading the information from the black box in this model (a Ford F150). Second, the airbags did not deploy and they do not believe that the box would have been triggered. So it appears that we are out of luck in that regard.

Personally, the .23 + rollover when trying to exit a freeway is enough for me. All that other stuff just gives the defense something to argue about.