At the NYS Traffic Violation Bureau, there is no plea bargaining (no negotiation). Thus, every contested ticket proceeds to a trial.
When you sit in a hearing room and wait for your trial, you may see the officer who issued your ticket testify to 15 similar traffic ticket cases before yours is called. It’s only natural to wonder how he possibly remembers your case (which by now is 5 or 6 months ago) from all the others.
An officer must have some level of recollection. A standard question at a hearing is “officer…do you remember this case?”. His answer is generally one of the following:
- “I remember it”. Sometimes, they just remember.
- “I’ve used my notes to refresh my recollection”. This is an officer’s way of saying “I didn’t remember it before, but after reading over my notes I remember it now”.
- “I’ve reviewed my notes and I still don’t remember. My testimony is based on these notes only.”
- “I have no recollection of this case at all”.
Keep in mind that any notes used by an officer to help him recall a case or otherwise testify must have been taken at the time of the incident. Such notes are the only notes considered by the court to be reliable. If an officer does rely on notes to any extent, you have a right to review those notes and ask questions about them.
What’s the significance of all this?
In general, if an issuing officer has absolutely no recollection, the case should be dismissed. it’s impossible to get a fair trial and confront the person who brought charges against you if he doesn’t remember anything about the incident in question.
If an officer is relying completely on his notes to testify then the judge should only allow testimony concerning facts contained within those notes. In many cases, an officer will try to deflect good, potentially helpful questions on cross examination by claiming he “doesn’t remember” and is simply “relying on his notes”. If he admits as much, it’s important to listen carefully and review all his testimony because if he did offer any substantive testimony about facts not specifically written in his notes you may be able to make a successful motion to dismiss or at least open a promising line of questioning.
If an officer claims he’s been able to “refresh his recollection” by reviewing his notes, then he’s testifying as if he has full recollection of the case. He can offer testimony concerning facts that aren’t contained in his notes. if this is the case, don’t forget to ask when he took those notes. We won a case years ago where an officer claimed to have made his notes at the time of the incident. Closer inspection of the notes (we turned them over and looked at the other side) showed the notes were taken on the back of a flier discussing some political event which took place months after the car stop. When the notes were taken can be as important as what is or is not written in the notes.
If an officer claims he simply remembers your case without the use of any notes, it doesn’t mean all is lost. In such a case, we focus our recollection questioning on how he remembers so much (did something unusual happen?) and on trying to show that he might not remember as much as he claims to remember. Here, we try to ask questions that induce the officer to answer “I don’t recall” which then allows us to argue that if he doesn’t recall that answer, how can we believe that he recalls all the rest?
Officers who regularly appear at TVB trials issue many tickets. How well they remember a case and what they use to help them remember will always be a part the traffic ticket hearing. Understanding how to potentially turn either a full recollection or very little recollection to your advantage can be a useful skill when trying TVB tickets.
Submitted by New York TVB attorney Scott Feifer