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Objection to PAS Test Results (Secondary Evidence & Hearsay)

MOTIONS IN LIMINE:Exclude P.A.S. Test Results

I. INTRODUCTION

The PAS machine is capable of printing out the breath test results. The print out of the results is a “writing” as per E.C. §250. Under E.C. §1520 “the content of a writing may beproved by an otherwise admissible original.” The prosecution would have the officer testify to breath test results without offering the original statement (print out) of said results. E.C. §1521, entitled Secondary Evidence Rule, requires that the court exclude “secondary evidence of the content of writing if the court determines: 1) a genuine dispute exists concerning material terms of the writing and justice requires the exclusion or 2) admission of the secondary evidence would be unfair. Under 1521(b) “nothing in this section makes admissible oral testimony to prove the content of a writing if the testimony is inadmissible under §1523 (oral testimony of the content of a writing). As stated in the law revision commission comments, (b) explicitly establishes that §1523, not §1521, governs the admissibility of “oral testimony” to prove the content of a writing. Subdivision (c) makes clear that secondary evidence is admissible only if it is properly authenticated, i.e. the proponent must authenticate the original writing as well as establish that the proffered evidence is secondary evidence of the original.

E.C. §1522, entitled “Additional Grounds for Exclusion of Secondary Evidence” states that in addition to the grounds for exclusion per 1521, in a criminal action the court shall exclude secondary evidence of the content of the writing if the court determines that the original is in the proponent’s possession, custody, or control and the proponent has not made the original reasonably available for inspection at or before trial. As stated in the law revision commission comments, the concept is fluid. “For example, making the original available moments before using secondary evidence may suffice if a defendant is rebutting a surprise contention, but not if the prosecution is presenting its case in chief.” §1523 entitled “Oral Testimony of the Content of a Writing; Admissibility” (a) states “Except as otherwise provided by statute, oral testimony is not admissible to prove the content of a writing.” (As noted in the law revision commission comments, “oral testimony of the content of a writing is less reliable than other proof of the content of a writing.”

Proffering testimony about what the officer claims he saw instead of introducing the data from the machine “is analogous to proffering testimony describing security camera footage of an event to prove the facts of the event instead of introducing the footage itself.” See U.S. v. Bennett, April 9, 2004, 2004 DJDAR 4449. As stated by the Bennett court, Id., “this is precisely the kind of situation in which the best evidence rule applies. See e.g. L.A. News Service for CBS Broad, Inc. 9th Circuit 2002 305 f3d 924 (“we think that Fox’ report of what he saw on the label…was inadmissible under the best evidence rule”). The Bennett court also noted the fact that the government did not offer any evidence that it would have been impossible or even difficult to download or print out the data…” Printing out the data from the PAS machine was possible.

Additionally, the statement by the officer of the purported PAS test results is an out of court statement (not under oath) of a “statement” made by a machine, offered for its truth, i.e. classic hearsay upon hearsay.

II. CONCLUSION

For all the reasons stated above, the court should exclude the PAS test results.