Tuesday, September 26, 2017

Ithaca DWI Lawyer: Why You Can't Use Affidavits as Testimony?

Notarized Affidavits Can't Be Used in Court

Someone recently contacted me about a traffic violation. He thought it might be  good idea to have his relatives send in notarized affidavits to the judge. They were in his car as witnesses to his driving.
They wanted to avoid having to come to court, he also wanted to avoid having to come to court, and he also wanted to have a trial on his tickets. What people want might not always reconcile with what the law demands.

People need to know their rights. That is not just a blanket statement but is the truth. Because if you know your rights then you will have a better understanding of legal process. With that understanding can come a deeper knowing about making decisions.

Many people often just do what a lawyer says is best. Because they just don't know how things work people don't make informed legal decisions.

Can you use a affidavit as testimony at a New York trial?

Can you use an affidavit (notarized) statement at a New York traffic ticket trial?

New York Traffic Tickets Get Bench Trials

In New York a moving violation or even a cell phone ticket gives you the right to a trial. Not a jury trial but a bench trial. A bench trial is where the judge acts as judge and jury. Remember that the jury is the fact finder, and the decider of guilt and innocence. So when a judge is actually judge and jury, the judge is the fact finder, the decider of guilt or innocence, and the sentencer to decide punishment if the judge finds you guilty. That is a lot!

New York Traffic Ticket Must Be Proven Beyond a Reasonable Doubt

Even though NY traffic violations are not criminal charges they still require the same level of proof as a crime. But because of all of that you are entitled to your 6th amendment right of confrontation.

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defense. 

 Confronting witnesses means being able to cross examine their testimony. We are entitled, you are entitled to confront the police, to cross exam their statements against you and they in turn have the right to confront your witnesses and cross examine them as well. You know the whole goose gander thing.

So to our first questions:

You can't cross examine a notarized affidavit (statement of a witness).

You can't confront a notarized affidavit (statement of a witness).

First what is a Notarized Affidavit?
"Notarized" means that you have sworn under oath that the facts in the affidavit are true, the document has been signed in front of a notary public, and a notary public has signed and put a seal on the affidavit. The notary must see you sign it in front of him or her.
So these are inadmissible in court to either try to prove you guilty of a violation or to try to exonerate you or to give an explanation of what you did or didn't do. You are placed under an oath before you testify in court for a reason.

  • Written statements can't be CHALLENGED. 
  • Written statements can't be CONFRONTED. 
  • Written statements can't be QUESTIONED.
  • Written statements can't be SEEN, HEARD, FELT, OR EVALUATED.

Further the writer of these statements can be challenged, confronted, seen, evaluated, and questioned for  truth only when they physically appear in court and take an oath. They must be given an oath. They are then under an obligation to be truthful or be penalized if they are not.

The Crime of Perjury is Why We Don't Use Notarized Affidavits in Court

Perjury is a criminal act that occurs when a person lies or makes statements that are not truthful while under oath. For example, if a person is asked to testify in a criminal proceeding and they are under oath but do not tell the truth, they can be charged with perjury if it is discovered that they have lied.
Remember that Martha Stewart didn't go to jail for what she did, she went to jail for PERJURY.
Perjury is lying under oath and is a crime even if the traffic ticket is NOT.

Martha went to jail for committing the felony acts of perjury, conspiracy and obstruction of justice. She was treated harshly because of a lack of judgment and truth, lied under oath resulting in five months of jail time, five months of home confinement, probation, and fines and fees.May 28, 2013
                                                                               Huffington Post

Lawrence Newman is a partner in Newman and Cyr which focuses on DWI and criminal defense in the Fingerlakes region of New York State. contact larry@ithacacdwi.com